Introduction

[1] Leon McIntyre has pleaded guilty to the following offences:

• Robbery while using a restricted firearm contrary to s. 343 of the Criminal Code, R.S.C. 1985, c. C-46;

• Assault causing bodily harm contrary to s. 267(b) of the Criminal Code;

• Possession of a loaded restricted firearm when not the holder of an authorization or licence contrary to s. 95(1) of the Criminal Code;

• Possession of a restricted firearm knowing that he was not the holder of a licence;

• Pointing a firearm contrary to s. 87(1) of the Criminal Code;

• Operating a vehicle in a dangerous manner contrary to s. 249(1)(a) of the Criminal Code; and

• Possession of a firearm while prohibited contrary to s. 117.01(1) of the Criminal Code.

[2] Ms. Pasquino, for the Crown seeks a global sentence of six years, accompanied by ancillary orders including a DNA order for all offences and a lifetime prohibition on the possession of weapons. Ms. Freeman, on behalf of Mr. McIntyre, submits that a global sentence of two to three years is more appropriate and further asks that the pre-sentence custody served should be calculated on a 2:1 basis. The Crown resists this application, arguing that credit should be fixed at a ratio of 1.5:1.

Factual Background

[3] On 18 August 2014, at approximately 7:20 p.m., the victim in this case, Mahammad Malik, stood in the driveway of his house, situated at 75 Cherrylawn Avenue in Toronto, repairing the rear door lock of his car, a silver Mercedes Benz C32. He was being watched by his four year old son who sat on the front porch of the house.

[4] Mr. McIntyre and another youth, hereinafter referred to as D.R., entered the driveway with the intention of stealing Mr. Malik’s car. Mr. McIntyre was armed with a loaded handgun. As the victim was kneeling at the rear door, Mr. McIntyre and D.R. approached him from behind and ordered him to hand over his keys. Mr. Malik attempted to stand and a struggle followed, with both intruders attempting to pry the car keys from Mr. Malik’s hands.

[5] During the struggle, Mr. McIntyre pointed the handgun towards Mr. Malik’s lower torso, before using it to strike him on the side of the head near his temple. D.R. managed to obtain the keys, causing a cut to Mr. Malik’s hand, which subsequently required two stitches. During the attack, Mr. Malik lost consciousness for several seconds but revived sufficiently to see Mr. McIntyre drive his vehicle away at high speed with D.R. in the passenger’s seat.

[6] Mr. Malik’s cries for help were heard by his wife as well as several neighbours, and emergency services were called. The details of Mr. Malik’s vehicle were circulated to the police by radio. Shortly thereafter, two officers in an unmarked car noticed a vehicle matching the description and plates of the car, travelling eastbound on Finch Avenue West. Proceeding to follow, they observed the car being driven at speeds of up to 160-170 km/h where the highway limit was 100 km/h. Mr. McIntyre, an unlicensed driver, was further seen driving on the off ramp to the highway at 120 km/h when the posted speed limit was 70 km/h and on busy streets in a manner dangerous to the public.

[7] Wandering into heavy traffic, the car slowed and was caught by police. Mr. McIntyre was arrested in a high-risk takedown with the officers drawing their firearms on a busy road with numerous road users in close proximity. D.R., also placed under arrest, advised officers that he was in possession of a handgun, leading to a search which revealed a black 9mm Beretta handgun in his waist band. There is no dispute that this handgun is a restricted firearm within the definition of the Criminal Code and is capable of being discharged. Nor is it disputed that the gun was loaded with a magazine containing nine rounds of 9mm Luger ammunition.

[8] Mr. McIntyre’s clothing was seized for forensic examination, and DNA extracted from blood located on it was found to be a match for Mr. Malik.

[9] Mr. Malik suffered a gash to the head which required 13 staples to close. He also sustained swelling to his left eye and a concussion. In his Victim Impact Statement, Mr. Malik described the lasting consequences of the assault: his finger is permanently damaged, causing him pain on a daily basis and affecting his work and physical activities, such as going to the gym. As a result of the offence, he suffers from nightmares, anxiety and severe stress. Mr. Malik was unable to return to work until October 2014.

Personal Circumstances

[10] Mr. McIntyre is now 21 years of age and has no adult criminal convictions. He arrived in Canada in 2011 following the rest of his family who had immigrated at an earlier date. The pre-sentence report indicates that Mr. McIntyre had a tough time adjusting to life in Toronto and had a difficult relationship with his father, whom he felt uprooted him from a comfortable lifestyle in Jamaica to reside in a low-income apartment building in North York. After the separation of his parents, Mr. McIntyre lived with his father for a period of time but was told to leave home after his father found a condom belonging to Mr. McIntyre that had been thrown into the garbage. Initially, homeless, Mr. McIntyre stayed with his cousin before returning to his mother and siblings. Ms. Freeman put his strained relationship with his father and his need for a male role model as a significant factor leading up to his actions on 18 August 2014.

[11] Mr. McIntyre has also had a troubled educational history, being expelled from one school and failing to attend another after becoming involved with a dispute with a teacher. However, a letter from his then vice-principal at Emery Collegiate Institute indicates that when in school, Mr. McIntyre was a good student. Additional material put before the court also refers to Mr. McIntyre’s involvement with his church and his contribution to its activities.

[12] The pre-sentence report also indicates that Mr. McIntyre and his accomplice were under the effect of a drug that he had no experience with and that leading up to the offence he was “out of sorts and ponderous” about the direction of his life. His explanation is that his negative outlook coupled with the drugs he used took him on a “destructive path as he did not plan to rob anybody”.

The Appropriate Sentence

[13] Section 344 of the Criminal Code reads as follows:

344 (1) Every person who commits robbery is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

[14] In R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75, Arbour J., concurring with the majority, made the following remarks relating to the nature of a mandatory minimum sentence:

By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.

[15] The views expressed by Arbour J. have been recognised by courts as having significant persuasive value rather than binding effect on lower courts: R. v. B.C.M., 2008 BCCA 365, 238 C.C.C. (3d) 174; R. v. Johnson, 2013 ONSC 4217; R. v. Guha, 2012 BCCA 423, 98 C.R. (6th) 177; R. v. Newman, 2009 NLCA 32, 286 Nfld. & P.E.I.R. 176; and R. v. Colville, 2005 ABCA 319, 380 A.R. 360.

[16] The concept of “best offender” does not bring with it a universal set of standards. The “best offender” analysis involves not just an evaluation of the offender’s background and personal qualities but also the circumstances of the offence.

[17] Having rejected Mr. McIntyre’s challenge to the statutory mandatory minimum, I must now determine the appropriate sentence in this case, taking into account the factual matrix of the offence, the aggravating features and mitigation.

[18] As sentencing judge, I am bound to follow the trite sentencing principles set out in s. 718 of the Criminal Code. Denunciation and deterrence must be balanced with a sentence that assists in the rehabilitation of offenders and promotes a sense of responsibility and acknowledgement of their actions with respect to the victims.

[19] There are a number of aggravating features in this case. First, the attack took place at the victim’s residence, a location where he is entitled to feel secure and safe. Secondly, the firearm in this case was not simply pointed at the victim to rob him but used as a physical weapon to beat Mr. Malik, causing an injury to his head and resulting in a loss of consciousness. Finally, the entire event took place in front of the victim’s four year old child, whose obvious distress could not have been lost on Mr. McIntyre.

[20] There are also features in this case which mitigate in favour of Mr. McIntyre. He is a young person, and this offence is his first adult conviction. Indeed, his age at the time of the offence, 18 years and 6 months, meant that he was only narrowly outside the sentencing regime contained in the Youth Criminal Justice Act, S.C. 2002, c.1. He has pleaded guilty and shown remorse, although, as conceded by Ms. Freeman, his plea was not an early one. The pre-sentence report describes Mr. McIntyre as having had the opportunity to reflect upon his actions whilst in custody and to consider the devastating impact suffered by the victim. Mr. McIntyre wrote to Mr. Malik expressing his regret and apologising for his actions.

[21] Both parties have provided useful charts outlining sentence precedents for offences committed with a firearm. As is usually the case in sentencing precedents, the facts of each case make them distinguishable from that of the instant case. However, it is clear that the range for this type of offence falls on a spectrum between 5 and 11 years.

[22] I am cognisant of the fact that Mr. McIntyre is a young first time offender. As a general rule, individual deterrence and rehabilitation are the primary objectives in sentencing such an offender. However, when the crime committed is a serious crime of violence, as is the case before me, the objectives of denunciation and general deterrence become increasingly important: R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 41-42; and R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at paras. 4-5.

[23] Balancing these factors and placing emphasis on denunciation and deterrence as well as the prospects of rehabilitation, I am acutely aware of the dangerous situation that arose as a result of Mr. McIntyre’s criminal actions.

[24] Mr. McIntyre was in possession of a loaded handgun and, without any warning or justification, intruded upon the victim’s home to commit the robbery. Although Ms. Freeman is correct that Mr. McIntyre could not have known a child would be present when embarking upon his criminal actions, he must have known that in entering the driveway of a residential home, there was a possibility of other family members or friends being present or coming to the scene during the attack. The attack on the victim was brutal. The use of the handgun as a physical weapon on the victim’s head could have resulted in more catastrophic injuries than those actually suffered.

[25] In his Victim Impact Statement Mr. Malik set out the enduring consequences of the attack in the following manner:

As a result of being a victim of these crimes I have suffered from severe stress. My family, my wife and son, are constantly worried and concerned for our safety. My wife begged me not to come and testify because she’s afraid. She no longer feels comfortable leaving the house alone and does not like to be out at night. She now keeps the lights on at the evening so that we can see if anyone is lurking around our property. My son is now five years old and as a result of witnessing the violence against me he is traumatized. He asked me questions about who hurt me and why I was bleeding. He often has questions about guns and has even asked me if he needs to have a gun. These questions terrify me and cause me great trouble. If this had to happen, my son should not have had to witness this event. No young boy should have to ask their father questions like this.

[26] In all the circumstances, a global sentence of six years is more than reasonable. I now turn to the question of the amount of credit Mr. McIntyre is entitled to as a result of his incarceration prior to sentencing.

Is McIntyre Entitled to Enhanced Credit?

Positions of the Parties

[27] Both parties agree that, on a finding of constitutionality of the pre-sentence custody provisions, the 1.5:1 credit applies to the six year sentence that will be imposed. They diverge, however, on the final amount of credit to be applied to the global sentence. Ms. Freeman argues that credit over and above the statutory limit is justified on the basis of the conditions that Mr. McIntyre had to endure whilst incarcerated. Ms. Pasquino acknowledges that there were occasions where Mr. McIntyre was subject to more severe restrictions than he would otherwise have experienced but argues that the statutory limit is more than appropriate when the court examines not only the conditions as a whole but also Mr. McIntyre’s behaviour.

Legal Principles

[28] Following the decision of the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the calculation for pre-sentence custody credit under sections 719(3) and 719(3.1) of the Criminal Code is assumed to be 1.5:1 to take into account the loss of eligibility of early release and parole. This is sometimes referred to as “the quantitative rationale”. The court also made clear, at paras. 70, 73, that individuals who have suffered “particularly harsh treatment” could apply for further relief over and above the statutory limit in avenues such as s. 24(1) of the Charter of Rights and Freedoms: “the qualitative rationale”. In R. v. Duncan, 2016 ONCA 754, at paras. 5-6, the Court of Appeal for Ontario confirmed that particularly harsh pre-sentence incarceration conditions could provide a basis for additional credit.

[29] Ms. Freeman argues that Duncan permits a court to give credit on a 2:1 or 3:1 basis if “particularly harsh” conditions are established. I do not read anything in Duncan that envisages a return to the enhanced credit regime existing prior to the statutory amendments (where the then standard ratio of 2:1 was routinely increased on a numerical basis on a finding of unpalatable conditions in pre-trial custody). In passing the Truth in Sentencing Act, S.C. 2009, c. 29, and capping the pre-sentence credit at 1.5:1, Parliament signalled its intention to end this method of calculation. I read both Summers and Duncan as simply saying that a further reduction in the time allotted to sentence may be made in the appropriate case.

What is the Appropriate Amount of Credit?

[30] Ms. Freeman’s bases for arguing the imposition of increased credit can be grouped into a number of issues. The first concerns Mr. McIntyre’s assimilation into the prison community before pleading guilty and being sentenced. Ms. Freeman called as witnesses in the sentencing hearing representatives of each detention centre in which Mr. McIntyre was held. They testified that Mr. McIntyre would wear the same clothing as serving prisoners, he would be unable to receive his own food, he would spend only a limited time in the prison yard and he would be forced to use the institution’s medical facilities rather than have access to his own doctor or dentist. Ms. Freeman argues that these restrictions should be taken into account when determining whether increased credit should be given. I disagree. Many, if not most of these complaints can be justified on the basis of security. The refusal to allow outside clothing, for instance, is grounded in the need to ensure no weapons or contraband secretly enter the detention centres. There was no evidence that the medical facilities provided were somehow inferior or deficient. Nor was there any indication that Mr. McIntyre suffered any adverse effects because he was not allowed to use the gymnasium or spent a limited time outside in the yard.

[31] More importantly, the issues complained of by Ms. Freeman – including waiting to shower, use the telephones and watch television – could hardly be said to be instances of “particularly harsh” treatment rather than inconveniences that Mr. McIntyre had to accept as part of custody. The fact that Mr. McIntyre was treated the same way as a convicted prisoner is reflected in the fact that his pre-sentence custody is treated as part of his sentence. If Ms. Freeman’s argument was to be accepted, every person awaiting trial on remand would be able to claim increased credit.

[32] One aspect of the pre-sentence custody in this case does bear scrutiny: the lockdowns that occurred in the detention centres where Mr. McIntyre was incarcerated. Lockdowns are a regrettable fact of life in incarceration terms. Sometimes they are unavoidable, as for instance, when the presence of weapons or contraband are suspected and the authorities find it necessary to conduct a search. In other cases, however, lockdowns are the result of staff shortages where, for example, an inmate must be taken outside the institution because of a medical emergency, leaving a shortfall of staff to supervise.

[33] In Duncan, the Court of Appeal for Ontario recognised that a pattern of lockdowns could form the basis of increased credit. In this case, it is undisputed that in Mr. McIntyre’s 744 days of incarceration there were 94 days of full lockdown. The evidence given by the detention centre officers was that in the event of a lockdown, the institutions would endeavour to maintain family visits and accommodate programmes as best they could. I note that although it is unfortunate that Mr. McIntyre had to endure any lockdowns, when compared to the entire period of pre-sentence custody, the total amount of days spent in lockdown was comparatively low. This is unlike Duncan, where the court found, at para. 6, that the offender had served “a considerable part” of pre-sentence incarceration in lockdown conditions.

[34] Even though Mr. McIntyre was “triple bunked” in cells for a period of 81 days, there was no evidence that he did not sleep in his usual bunk or that he was the one that ended up sleeping on the floor. There is evidence, however, that Mr. McIntyre had the benefit of being “single bunked” on 85 occasions. There was no evidence given by the officers that triple bunking occurred coincidentally with lockdowns.

[35] What is also unclear is the effect that these events had on Mr. McIntyre. In Duncan, the court indicated that any potential increased credit requires evidence of the adverse effect of the conditions of the harsh treatment. Here, as in Duncan, the evidence appears to show that Mr. McIntyre actually took steps towards rehabilitation and preparation for his return to society whilst serving pre-sentence custody. He also participated in anger management, money management, addiction counselling and the chaplaincy programmes. Moreover, Mr. McIntyre has enrolled in the General Educational Development diploma programme, which he continues to study for as he awaits new staff to fill teaching positions.

[36] By way of comparison, in R. v. Arviko (29 April 2015), Toronto, 13/50000647 (Ont. S.C.J.), unreported, the offender had been in custody for approximately four years and had been transferred seven times. A period of 828 days of that presentence custody had been spent in the now closed Don Jail, an institution notorious for harsh conditions. The court, however, concluded that credit should be limited to 1.5:1. Notably, the offender in that case was found to be “an exemplary inmate” who had no history of misconduct.

[37] The existence of misconduct is significant because in Summers, at para. 71, the court acknowledged that findings of misconduct by an offender were a relevant factor that could lead to a reduction in credit for pre-sentence custody. In R. v. Farah, 2016 ONSC 5000, Campbell J. found that the offender’s misbehaviour – two incidents of serious assaults on other inmates – whilst awaiting trial in custody, disentitled him from any credit under the “quantitative rationale”. Conversely, 190 days of lockdowns in a period of 3 years and 2 months engaged the “qualitative rationale”. Balancing these factors, Campbell J. granted an enhanced credit of 1.25 days for each day served.

[38] In the case at bar, Mr. McIntyre was found guilty of misconduct on no less than eight different occasions, the majority involving the use of violence against other inmates. The other infringements included the use of prohibited contraband and the disobeying of orders given by a supervising guard.

[39] Mr. McIntyre claimed to be innocent of many of those allegations and told the court that he had pleaded guilty in order to get a lesser punishment and avoid being placed in “the hole”. I reject that evidence. I note that on a serious assault charge, where Mr. McIntyre and another inmate entered a cell, resulting in a serious assault on the occupant, Mr. McIntyre denied the allegations and indicated that he wanted “to call the entire range and victim as witnesses”. He was found guilty after the authorities had reviewed the evidence. On another misconduct charge, video evidence captured Mr. McIntyre delivering a “sucker punch” to a fellow inmate after he had turned his back on him.

[40] Mr. McIntyre’s explanation for pleading guilty to misconduct charges of which he claimed he was innocent also makes little sense. He testified that he wished to avoid being sent to “the hole” and wanted the matter dealt with as quickly as possible to avoid a greater punishment. However, in cross-examination, he conceded it was still possible to be sent to “the hole” even if he admitted the misconduct. The court was also told that the institutions administered a progressive punishment policy (i.e. each successive misconduct would lead to an incrementally increased punishment). Pleading guilty did not guarantee a lesser punishment but actually invoked the risk of a more severe one.

[41] Calculation of the pre-sentence credit is not an algebraic calculation automatically producing a “correct” result. In another case, the factors set out above might well have resulted in a reduction of the statutory enhanced credit, as in Farah. However, balancing these reasons and acknowledging the Crown’s position, I conclude that the appropriate amount of presentence credit to be applied to Mr. McIntyre’s sentence should be calculated at the rate of 1.5:1, for a total of 1116 days or 3 years and 21 days. In doing so, I also take into account the restrictive bail conditions imposed upon Mr. McIntyre during the short period of time that he was out of custody prior to the bail review that revoked his release.

Parity

[42] As an additional part of the credit equation, Ms. Freeman asks me to take into account the sentence imposed upon D.R., who was 16 years of age at the time of the offence and sentenced under the provisions of the Youth and Criminal Justice Act. He received a 4 month deferred custody order, a supervision order and 12 months probation. She takes the position that Mr. McIntyre should be put into as close a position as possible to his co-accused and that an increased credit would be appropriate to significantly reduce the sentence as she suggests.

[43] I reject this argument on the basis that whilst the differential between Mr. McIntyre and his co-accused might appear to be extreme, that is the consequence resulting from being sentenced as a youth instead of as an adult. The same situation occurred in R. v. Wobbes, 2008 ONCA 567, 235 C.C.C. (3d) 561, where the offender was sentenced to 26 months imprisonment, reduced to 2 years less 1 day, after accounting for pre-sentence custody. His youthful co-accused received a non-custodial sentence of 18 months. On appeal, the defence sought a conditional sentence, arguing the need for parity. The court dismissed the appeal and, at para. 73, Epstein J.A. explained:

The primary difficulty the appellant faces in relying on the parity argument is that the co-accused were young offenders sentenced under the regime established under the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”) – a regime completely different from that established under the Criminal Code. Most notably the sentencing principles of general deterrence found in s. 718(b) of the Criminal Code are not applicable under the YCJA. Furthermore, the YCJA places mandatory restrictions on the use of custodial sentences.

[44] In my view the same reasoning applies in the case at bar.

Conclusion

[45] Mr. McIntyre is sentenced to a total of six years imprisonment.

[46] I impose a sentence of six years for the offence of Robbery with a firearm, the remaining counts on the indictment carry a one year custodial sentence concurrent to the Robbery charge, except the Possession of a Firearm while Prohibited, which carries with it a six month custodial sentence concurrent.

[47] Mr. McIntyre is to be given credit for pre-sentence custody of 3 years and 21 days. After deducting that amount, the remaining portion of Mr. McIntyre’s sentence amounts to 2 years, 11 months and 9 days.

[48] I also impose the following orders:

• Driving prohibition for a period of two years;

• DNA orders with respect to the offences; and

• Lifetime prohibition order with respect to any weapons under s. 109 of the Criminal Code.

S.A.Q. Akhtar J.

Released: 2 December 2016

CITATION: R. v. McIntyre, 2016 ONSC 7498

COURT FILE NO.: CR-15-40000652-0000

DATE: 20161202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LEON McINTYRE

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

Her Majesty the Queen v. Leon McIntyre, 2016 ONSC 7498

Case Summary

Introduction

Factual Background

Personal Circumstances

The Appropriate Sentence

Is McIntyre Entitled to Enhanced Credit?

Positions of the Parties

Legal Principles

What is the Appropriate Amount of Credit?

Parity

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 2