Court File and Parties

COURT FILE NO.: CR-18-3-215 DATE: 20180913 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RACHARD HOLDER Defendant

Counsel: Simon Heeney, for the Crown Morrie Luft, for the Defendant

HEARD: June 21, 2018

REASONS FOR JUDGMENT

FAIETA J.

1This case involves another senseless shooting in the City of Toronto that has forever changed the life of its victim, Steven Cseko.

CIRCUMSTANCES OF THE OFFENCE

2On May 2, 2018, the Defendant, Rachard Holder, was convicted by a jury of one count of attempted murder, one count of pointing a firearm and one count of intentionally discharging a firearm. With the agreement of the Crown and the Defendant, a fourth charge of possession of a firearm contrary to an order made under s. 109(2) of the Criminal Code, R.S.C. 1985, c. C-46 was severed from the Indictment that went to the jury. Following the return of the jury’s verdict, I considered the submissions of the parties and found the Defendant guilty of the fourth charge.

3Pursuant to s. 724 of the Criminal Code, I find the following background facts for purposes of determining Mr. Holder’s sentence. On September 10, 2016, at about 10:30 pm, Mr. Cseko, a 30 year old competitive body builder was staying a motel in the vicinity of Kingston and Overture Roads in the City of Toronto. Mr. Cseko heard screaming coming from the adjacent room occupied by Mr. Holder and Malaika Dennis, a former girlfriend and the mother of his daughter. Surveillance video of the motel hallway showed that many guests heard noise coming from Mr. Holder’s motel room and slowed down as they walked by his room before continuing on. The motel’s receptionist also received complaints from one or more guests regarding noise coming from Mr. Holder’s room. Being concerned for the safety of the persons in the next room, Mr. Cseko came out of his room and knocked on Mr. Holder’s door. Ms. Dennis rushed out of the room into the hallway. Mr. Cseko stood between Mr. Holder and Ms. Dennis. The two men did not know one another. Ms. Dennis was upset and wanted to go home. Mr. Cseko told Mr. Holder that Mr. Holder and Ms. Dennis should each go to their own homes in order to cool off. Ms. Dennis went to the front desk with Mr. Cseko and she left the motel in a cab. Mr. Holder also went to the front desk in an attempt to obtain a refund for his motel room as he had only been there about 30 minutes. The receptionist refused to provide a refund. Their discussion continued and Mr. Cseko, who observed this exchange, told Mr. Holder to stop harassing the receptionist. Mr. Holder’s focus then turned to Mr. Cseko. The two men exchanged more words. Mr. Holder told Mr. Cseko that he would come back for him with a friend. Mr. Holder left the motel at about 10:30 pm and returned less than one hour later at about 11:10 pm with another man whose name he could not remember. Mr. Holder returned to his room but found it locked. He then went to the front desk and had a lengthy conversation with the receptionist. At about 11:38 pm Mr. Holder left the reception area. Mr. Holder and his friend then walked towards a bar located about one block away. A surveillance video in the area between the motel and the bar shows Mr. Holder and his companion walking towards the bar at about 11:39 pm. This same surveillance camera shows Mr. Cseko walking towards the bar from the motel about six minutes earlier.

4When Mr. Cseko arrived at the bar he sat at a table on the outside patio. There were at least three other patrons on the outdoor patio. At about 11:45 pm, Mr. Holder approached Mr. Cseko and from a distance of four to five feet away Mr. Holder asked him “Do you remember me?”, or words to that effect, before raising a shotgun, pointing it at Mr. Cseko’s chest and then shooting him. Thinking quickly, Mr. Cseko turned his body sideways when he realized that he was going to be shot. Mr. Holder fled the scene of the shooting and left Mr. Cseko for dead. Remarkably, Mr. Cseko did not die. As a result of this shotgun blast, Mr. Cseko has suffered massive, continuing injuries that are described below.

IMPACT ON THE VICTIM AND HIS FAMILY

5Written victim impact statements were provided to the Court on behalf of Mr. Cseko, his father and his sister at the sentencing hearing.

6Mr. Cseko’s statement, was read by his sister, Suzanna Cseko, and it is as follows:

Before I was shot, I was in the best shape of my life; I was at least 300 lbs, muscular, strong and fit. I was an avid body builder. I was training for a body building competition at the time, which was a passion of mine that I had hoped I could turn into a career. I was working as a mechanic, specialized in fixing German vehicles. I was in a relationship and I was a father who played an active role in my young daughter’s life. This premeditated, cowardly act changed everything for me. Everything.

The damage done to my body was catastrophic. I lost 150 lbs as a result of the shooting. My lungs have collapsed seven times. I have less than half of my small intestines and have been left with a quarter of my liver and half of my colon. My breast bone was shattered and I have been left with a piece of bone sticking out of my chest that will eventually need to be repaired through surgery. It causes me a great deal of pain and discomfort, nothing can touch it. My right bicep was blown out and that required a skin graft. I have been left with constant, ongoing pain in my chest and stomach that does not stop.

After I was shot, the damage done to my bowels was so extensive that I was left with an ileostomy which is an external diversion for my bowels in order to bypass my colon. Essentially, I was left with my bowels on the outside of my body and I was forced to wear a colostomy bag for over one year. That year of my life was a living hell. My kidneys failed and shut down; my body was unable to absorb nutrients and I was dangerously dehydrated most of the time that my body started to shut down. I almost died on at least 3 occasions from sepsis and complications from the ileostomy. On one occasion, I was found in a bathroom of a Tim Hortons with no vital signs and had to be rushed to hospital.

I have been left with constant and ongoing issues with my bowels and digestion. Food and liquid run through me. My body is unable to absorb food or nutrients because of the damage to my colon. I have to make frequent trips to the bathroom and I constantly have chest pains to this day. Thankfully, the ileostomy was reversed, however I continue to have serious digestion issues which the doctors have been unable to fix and have advised that I will likely suffer with for the rest of my life. This has had a profound impact on my quality of life and my ability to interact with my family, my daughter and do anything that I used to do before. I have to constantly ensure that I am near a bathroom. To this day I have to rely on narcotics to slow my bowels down which makes me feel ashamed. I have been told I will likely have to have at least two more surgeries to continue to address the issues with my small intestines, to address the skin graph on my arm and to fix the bone that sticks out of my chest.

I suffer every single day without being able to communicate with anyone. I struggle to see the good in anyone anymore. I cut family and friends out for that reason because I feel like I am unable to trust anyone. I feel like no one can understand or relate to my situation and as a result, most of my relationships have been ruined.

This has affected me in every way possible – mentally, physically and financially. I suffer from PTSD now. I have issues with my memory and remembering day to day tasks. I am now unable to work and maintain any sort of employment due to my injuries. I have to rely on disability and this does not allow me to live on my own due to the lack of financial support I receive.

Being shot has affected every single aspect of my life. I can’t sleep. I suffer from anxiety. I relive the shooting every night. It has put a rift between my daughter and I. It has put a rift between me and my sister and my family. No one can understand the effect that this has had on my mental, physical and emotional state.

The financial impact of this has been huge as well. Not being able to work, and having to pay out money for my medication and supplies has put me behind in child support payments. I have to rely on my father to help me now as I can’t live on my own as the amount I receive doesn’t allow me to pay for car insurance, rent, food or my other day to day expenses. Without my father’s support, I wouldn’t be able to survive. Between the cost of trying to keep myself hydrated and the expense of food to make sure my body gets enough nutrients every day, it’s impossible to keep up with the financial expense.

My biggest memory is the last words he said to me, the sound of the gun shot and the ringing in my ears. I will never forget that and relive it every day. I am haunted by the phone call I had to make to my dad that night after I was shot. In my whole life, I have never heard my dad’s voice crack like that. I thought I was having the last conversation with him I would ever have. I thought I was going to die. I didn’t expect that I would make it. I relive these moments every day.

To this day I question the motives behind this. My intentions that night were just to make sure that everyone was okay and to break up a fight. What happened to me was ridiculous and completely undeserved. Because of this senseless, cowardly act, I will have to suffer with my injuries and the impact of this for the rest of my life. I will never understand it. I have to figure out a way to cope and let go of trying to understand his actions otherwise it will drive me crazy.

7The victim’s sister, Ms. Suzanna Cseko, read her Victim Impact Statement. She stated:

On September 10, 2016, my younger brother, Steven, was shot point blank with a shotgun by a man he didn’t know. This single event has not only changed my brother’s life forever, but also that of my father and myself.

Together, with my father, we sat at my brother’s side, as he clung to life in the Critical Car/ICU unit at Sunnybrook Hospital for over a month. He underwent numerous surgeries and was near death on multiple occasions. He endured pain that no one should have to go through. He has been in and out of the hospital for the last two years; has collapsed in public washrooms and at home, and wakes up regularly with nightmares.

In addition to the multiple pain medications he was on to try to alleviate his suffering he also had to have an ostomy bag to deal with the damage to his colon and bowels. Over the last two years, he has endured four attempts at reconnecting his bowels and reversing the ostomy. Each operation, until the final, was unsuccessful and resulted in Steven having sepsis on three occasions. He was in agony as his bowels distended. The ostomy reversal was finally successful this winter. However, this may not be permanent as he has limited colon and bowel left and must be watched closely.

This is not something anyone should have to go through. He spent countless nights not sleeping as the ostomy bag would rupture, spilling feces all over his sheets and burning his skin. His skin would become so raw that the ostomy bag would not stick. All the while, my father watched and tried to help as best as he could. Changing sheets almost nightly for a 30 year old due to the bag rupturing is not easy. Watching your son crumpled over in pain and not being able to help, is heartbreaking. My dad is a single father, as our mother died when my brother was 9. My dad took care of my brother day and night. I am married with 2 young children and work full time. I have helped as much as I can but besides Steven, the brunt of the responsibility was on my father. This has taken a tremendous toll on him.

To say that this has changed our family would be the biggest understatement. My dad is a broken man. Finally, Steven has a young daughter. She was terrified by how he looked and what happened to him so much so that, she is afraid to see him and the scars. Just recently, my dad suffered a heart attack. The amount of stress that he has been under to care for my brother has been unbearable. I am not even going to talk about what it’s like for me watching this as I feel that this is more than enough. It’s enough to note, that 6 months after Steven was shot, I was prescribed antidepressants to help cope with the fallout from this traumatic event and, to this day, I am still on this medication. I hope that whatever sentence is given, it acts as a strong deterrent for others and ensures that this individual will never hurt anyone else.

8The victim’s father, Istvan Cseko, read his Victim Impact Statement. He stated:

On September 10th, 2016 the phone call that came close to midnight changed my life forever. I received a phone call from my son where he told me he had been shot somewhere along Kingston Road.

I jumped into my truck and tried to find him. I called 911 and tried to get some information and was only able to find out where he was, about half an hour later. I went and found him at the hospital. From then on my life has been a living hell.

Every day since then, we have experienced the unknown. Steven was in a coma for almost 3 weeks and we were not sure if he was going to make it. This has affected me in every way - mentally, physically and financially.

I have watched my son go through so much suffering, sitting by his bedside. Some he doesn't even remember. Through high fevers and infections to gasping for air, we have almost lost him so many times. This has been so hard to go through and watch my son go through.

My own health has now suffered from the stress of what my son has had to go through and helping him. Last week I had a heart attack and everyone believes that it is a direct result of all the stress I have been through the past 2 years.

I have been focusing on my son's health, his wellbeing and have been unable to focus on anything else - other family or even myself. This has caused emotional destruction with my daughter and even my friends and my other relationships.

After Steven was released from the hospital, he has been with me and dependent on me both physically and financially. I have been helping him to recover in the best way I can; helping him to take care of himself, making his meals, washing his clothes and getting his medication and taking him to all of his appointments.

This was not how I had hoped to spend my retirement and this was not the life I had hoped for Steven. I had hoped to travel, be happy, go places and spend time with my kids and grandkids. Instead we are left with the continuous suffering and the unknown for both Steven and for me, just because of Rachard Holder’s cowardly act.

IMPACT ON THE COMMUNITY

9The Ontario Court of Appeal has recognized that gun violence is a serious public safety concern for residents of the City of Toronto: See R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264 (C.A.); R. v. Zekarias (appeal by Paredes), 2014 ONCA 910, 317 C.C.C. 415 at para. 44.

10In R. v. Brown, Justice Nordheimer, as he then was, stated, at para. 20:

This city has over the past few years been continually shocked and horrified by acts of gun violence, especially at the hands of young men. There has not been any issue relating to public security and safety that has been or is currently of more concern to members of this community. Citizens of Toronto are understandably upset about what appears to be a proliferation of handguns in this city. They are even more alarmed by the apparent willingness of certain individuals to use handguns in the most indiscriminate and mindless ways. People have been sickened by the human tragedy that results from these events of gun violence, especially in cases where that tragedy has been visited on entirely innocent people and their families.

11In upholding the sentencing decision in R. v. Brown, the Ontario Court of Appeal, recognized the public’s growing concern about gun violence in Toronto. It stated, at para.33:

The trial judge took the serious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration.

12The public’s concern regarding growing gun violence in the City of Toronto, and its tragic consequences, has not lessened since the Brown decision. If anything, it has likely increased.

13Defence counsel submits that there is no evidence that there has been an increase in gun violence in the City of Toronto. He submits that the court cannot take judicial notice of this concern. Nevertheless, he goes on to submit, without any evidence, that “gun violence is cyclical” and that “gun violence gets worse and then it gets better”.

CIRCUMSTANCES OF THE OFFENDER

14A pre-sentence report was not requested by either the Crown or Mr. Holder.

15Pursuant to s. 723(2) of the Criminal Code, counsel for Mr. Holder presented the following evidence regarding Mr. Holder. Mr. Holder was born in October 1993 in Barbados. When he was nine years old he came to Canada to live with his aunt. His parents, now separated, remain in Barbados. Mr. Holder was raised by his aunt. He became a Canadian citizen at the age of 14. He lived in Mississauga and stopped attending high school in Grade 11. Mr. Holder does not have a relationship with his father. In 2012, at about the age of 18, Mr. Holder worked in the shipping and distribution departments of Purolator and HarperCollins. He worked at Si Vous Play Sports in late 2012 until late 2014. Mr. Holder subsequently worked for a company that paves driveways. He has never been on disability or social assistance. He takes pride in his work and enjoys the freedom and opportunities associated with being self-sufficient.

16Mr. Holder’s criminal record as an adult is as follows:

(1) Pled guilty on October 1, 2012 to one charge of assault causing bodily harm and one charge of assault that occurred on September 8, 2012. He was in pre-trial custody for 24 days. Mr. Holder was given a suspended sentence and probation for 24 months for each charge to be served concurrently. Amongst other things, the court also prohibited Mr. Holder, pursuant to s. 109(2) of the Criminal Code, from possessing any firearm (other than a prohibited firearm or restricted firearm) and any cross-bow, restricted weapon, ammunition and explosive substance for ten years from October 1, 2012.

(2) On August 28, 2015, Mr. Holder was convicted of one charge of assault causing bodily harm and one charge of forcible confinement. He was sentenced to 322 days in jail after having been given credit for the equivalent of 33 days in pre-sentence custody for each conviction to be served concurrently. He was also given a one year probation order. Under this probation order, Mr. Holder was required to keep the peace and be of good behavior pursuant to s. 732.1(2) of the Criminal Code.

17After being in jail for about nine months, Mr. Holder was released on April 2, 2016. Upon his release, counsel advises that Mr. Holder resumed full time work in paving driveways. He had also enrolled, but never commenced studies, in the Scarborough Centre for Alternative Studies. Mr. Holder had been released from incarceration for about five months when he attempted to murder Mr. Cseko on September 10, 2016.

18Mr. Holder has attended a number of programs during his most recent period of incarceration. Defence counsel provided the following documents:

(a) Certificate of Completion: Substance Abuse Workshop. January 18, 2017 (10 hours completed);

(b) Certificate of Completion: Anger Management Workshop. May 22, 2017, (10 hours completed);

(c) Certificate of Completion: Anti-Criminal Thinking Workshop. July 21, 2017 (10 hours completed);

(d) Certificate of Completion. CIAC Core: Connections Programme. From September 19, 2017 to September 29, 2017. (4 hours and 57 minutes); and

(e) Certificate of Completion: Education Sessions – Being an Effective Father. From December 5, 2017 to December 5, 2017 (1 hour).

19At the sentencing hearing Mr. Holder made the following statement pursuant to s. 726 of the Criminal Code:

To Mr. Cseko and his family.

I can never understand the pain that you as an individual, Mr. Cseko, and your family have gone through. I am sure it’s been a very traumatizing event that has shaken up your lives. I’m sure that it has also changed the way you look at life. I pray that you find the resilience to be able to move forward and find peace in your life.

In my almost two years in custody, I’ve had a lot of time to reflect on my life. I have focused on self-improvement by participating in various programs such as anger management, anti-criminal thinking and G.E.D. programs. Throughout these programs I have learned a lot about myself. Another important lesson I’ve learned is patience and the importance of not always acting on impulse but thinking decisions out thoroughly before reacting, has benefitted me greatly.

Sadly the effect of this on my daughter is going to be the worst thing of all. I left my daughter when she was two years old, she’s now four and I probably won’t see her till she is ten or older. The fact that she’s going to have to grow up knowing her dad is in prison, if I ever see her again. It’s going to be a really long time before she forgives me for my absence or I forgive myself for being away for so much years of her life. I’ve never had a great or comfortable upbringing but I have goals in my life that I want to achieve. Some of those goals are becoming a businessman, entrepreneur and a music producer and this time in jail and the time I will face will help me focus on my goals even more. Even though this will be a high hurdle for me to jump, this is not where I want my story to end or my life.

I apologize for the pain and everything that your family has gone through, especially Steve. I pray that you guys recover from this and move forward in your lives.

20Mr. Holder submitted two character reference letters.

21The first letter is dated May 8, 2018 from Wiyanna Trevis, Program Coordinator, Amadeusz. Amadeusz is an organization that facilitates education programs for persons incarcerated at the Toronto East Detention Centre. Her letter states:

This letter is to confirm Mr. Rachard Holder’s voluntary participation in the Amadeusz education program at the Toronto East Detention Centre.

Over the past few months, Rachard has worked extremely hard towards preparing to write the GED exam and earn his high school equivalency certificate from the Ministry of Education. He most recently wrote the GED exam at the Toronto East Detention Centre on March 8th and 9th and successfully passed 4/5 sections.

Throughout his involvement with the Amadeusz education program, Rachard has shown that he is a capable and engaged participant. He attends program regularly, completes all assigned work and asks for support when necessary. He is an extremely eager and hard-working student that is diligent with his school work.

It is a pleasure to work with Rachard and we wish him continued success as he pursues his educational goals.

22The second letter, unsigned and dated June 20, 2018, from Malaika Dennis to Mr. Luft states:

I am the mother of Rachard’s daughter Nyaomi, who is 4 years old. I currently reside in Scarborough. I work full time for Samsung as a Technical Representative.

Rachard and I used to be [a] couple. We were in a relationship for many years. I first met Rachard at a concert almost 5 years ago and I can remember his first words like it was yesterday: “You are too pretty to be outside like that by yourself”. That was the day I knew I fell in love for the first time. Our relationship has had many ups and a few downs but we have in many ways grown together. We have always been close.

I have always known Rachard to be a good man. He is funny, smart, athletic and a very passionate person. He has always worked hard to support our daughter and he has always been a great father to Nyaomi. Whether it was taking her to the park, changing her diaper or reading a book to her before bedtime, I could see he was at his happiest when he is with her. Rachard is far from perfect but he is a loving father and is my partner.

I am aware that he was convicted of attempted murder and my heart goes out to Mr. Cseko. This act does not reflect the Rachard that I know and love. While I know that Rachard has a long road ahead of him, I also know that he understands that he has a family waiting for him. Rachard has a lot of good in him and has the ability to meaningfully contribute to society. He has a daughter and he has me and we both hope to be with him again soon.

POSITION OF THE CROWN

23The Crown submits that Mr. Holder should be given a life sentence for attempted murder for the following reasons:

(1) The shooting was the result of Mr. Cseko being a good Samaritan. Mr. Cseko intervened to break up the domestic dispute in Mr. Holder’s motel room when other persons decided not to get involved. The surveillance video of the hallway shows that other motel guests heard the noise in Mr. Holder’s motel room but did not attempt to directly intervene.

(2) The shooting was premeditated. Mr. Holder was angry that Mr. Cseko had intervened in his domestic dispute. As he threatened to do, Mr. Holder returned to the motel with another man less than one hour after he had left the motel. Mr. Holder came within a few feet of Mr. Cseko and shot him with a shotgun after asking him “Do you remember me?” or words to that effect.

(3) This shooting occurred in a public space – namely, the outdoor patio of a bar that was attended by other patrons.

(4) Mr. Cseko almost died from his injuries on three occasions. His injuries are massive and permanent. The shooting has had many other tragic consequences for Mr. Cseko, including having negatively impacted his personal relationships with his girlfriend, daughter and family as well as financial consequences as these injuries have impacted his ability to work.

(5) There is no real prospect of rehabilitation. Mr. Holder has enrolled in a number of programs while in custody and is working towards his high school degree. However, although he expresses sympathy for the impact that the shooting has had on Mr. Cseko and his family, Mr. Holder does not acknowledge his role in, nor apologize for, shooting Mr. Cseko despite having been convicted by a jury.

POSITION OF THE DEFENCE

24Defence counsel submits that a life sentence is typically reserved for: (1) the worst offender committing the worst offence; or (2) a case of “stark horror”. He submits that courts have only imposed a life sentence when there is no prospect for rehabilitation. He submits that the Crown bears a heavy onus to show that Mr. Holder cannot be rehabilitated. Defence counsel also submits that Mr. Holder is not the worst offender and that he has strong rehabilitative prospects.

25Defence counsel submits that a ten year sentence, less credit for time served, is appropriate for the following reasons:

(1) Mr. Holder has strong rehabilitative prospects; Mr. Holder was 22 years old at the time that he attempted to murder Mr. Cseko and he is now 24 years old. He is the father of a four year old daughter and has a life ahead of him;

(2) Mr. Holder has never been to prison (I understand this to mean that he has never been incarcerated in a federal penitentiary as opposed to a provincial jail, detention centre or correctional centre);

(3) A ten year sentence reflects the gravity of the offence and the harm caused to Mr. Cseko;

(4) Mr. Holder did not return to the motel to harm Mr. Cseko; Mr. Holder “just happened to see Mr. Cseko sitting on the patio” when he decided to walk up to him and shoot him with a shotgun; and

(5) Courts have warned against overemphasizing general deterrence.

PRINCIPLES OF SENTENCING

26The Criminal Code provides that a sentence for attempted murder shall be a minimum of four years and a maximum of life. The low end of the range for attempted murder is around eight or nine years' imprisonment; the middle around 15 year and the high end is a life sentence: R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385 (C.A.), at paras. 35-39.

27The maximum penalty of life imprisonment for attempted murder is to be imposed only rarely. A maximum penalty is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. In determining an appropriate sentence, the relevant factors under section 718, 718.1 and 718.2 of the Criminal Code must be considered on a case-by-case basis. Concepts of "stark horror" and "worst offence, worst offender" are not prerequisites for imposing a life sentence: R. v. Cheddisingh, 2004 SCC 16, [2004] 1 S.C.R. 433, at para.1; R. v. Malcolm, 2013 ONCA 451, at para. 11.

28The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and the unique attributes of the specific offender: R. v. Hamilton, 86 C.C.C. (3d) 129, at para. 87 (Ont. C.A.).

29Section 718 of the Criminal Code provides that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added]

30Section 718.1 and 718.2 of the Criminal Code require consideration of principles of proportionality, parity, totality and restraint. Proportionality is the fundamental principle of sentencing. Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. Hamilton, supra, Doherty J.A. stated, at paras. 90-91:

90 The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. …

91 The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. …

31Section 718.2 (a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Of particular relevance in this case is s. 718.2 (a)(iii.1) of the Criminal Code, which calls upon courts to also take into consideration evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

32Subsections 718.2 (b)-(e) of the Criminal Code also provide that:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

ANALYSIS

33Mr. Holder attempted to murder Mr. Cseko with a single shotgun blast in a public space with bystanders present for reasons that he has not explained. This senseless and cold-blooded act appears to have arisen from his belief that Mr. Cseko had disrespected him in attempting to stop a domestic dispute between Mr. Holder and Ms. Dennis.

34Mr. Holder’s shooting of Mr. Cseko was clearly premeditated. Somehow, Mr. Holder thought that it made sense for him to return to the motel to seek vengeance for a perceived insult by murdering Mr. Cseko using a shotgun. The evidence at trial showed that Mr. Holder returned to the motel with another man within about one hour as he had told Mr. Cseko that he would. Surveillance video of Kingston Road taken from a townhouse complex adjacent to the bar shows that at 11:39 pm, Mr. Holder walked on the sidewalk towards the bar about six minutes after Mr. Cseko had taken this same path towards the bar. Mr. Holder shot Mr. Cseko at about 11:45 pm at the bar. Thus, within about 40 minutes after returning to the motel, Mr. Holder walked up to Mr. Cseko, shot him using a shotgun, and left him for dead.

35There is no basis for Defence counsel’s theory that Mr. Holder shot Mr. Cseko after observing him, by chance, sitting on the outdoor patio. First, this theory is not supported by any evidence. Second, it directly contradicts Mr. Holder’s evidence. At trial, Mr. Holder testified that he did not see Mr. Cseko sitting on the outdoor patio as he walked on the sidewalk past the bar and that he continued to walk along the sidewalk until he boarded a bus some distance away. Third, this theory does not account for how a shotgun came into Mr. Holder’s possession shortly after this alleged “chance” observation.

36Mr. Holder’s actions have caused enormous, permanent and continuing injury, loss and grief to Mr. Cseko and has forever changed his life for the worse. Prior to the shooting, Mr. Cseko was a 300 pound body builder and an auto mechanic. He had a relationship with a woman and played an active role in his daughter’s life.

37Mr. Cseko was kept in an induced coma for three weeks as a result of the extensive injuries from the shotgun blast. The blast destroyed much of his right bicep. A skin graft was required to repair his arm and further surgery is still required. The blast also left him with one quarter of his liver, one half of his colon and one half of his small intestine. The damage to his bowels was so extensive that an ileostomy was performed in order to bypass his colon. As a result, Mr. Cseko wore a colostomy bag for over one year. His kidneys failed and shut down. He almost died on three occasions from sepsis and complications from the ileostomy. Mr. Cseko’s lungs have collapsed seven times. His breast bone was shattered. He has a piece of bone sticking out of his chest that needs to be repaired by surgery. Mr. Cseko has constant, ongoing pain in his chest and stomach. Although he no longer wears a colostomy bag, the damage to Mr. Cseko’s intestines has led to him being unable to absorb food or nutrients. As a result, food and liquid run through him which is being managed with drugs. Further surgery is anticipated to try to repair the issues related to his intestines. Mr. Cseko, now weighs 150 pounds, and is unable to work given his injuries. He is now physically and financially dependent upon his father. His father helps Mr. Cseko take care of himself, makes his meals, washes his clothes, gets his medications and takes him to his medical appointments.

38The mental health consequences have been profound as well. Mr. Cseko suffers from Post Traumatic Stress Disorder. He suffers from anxiety and cannot sleep. He relives the shooting every night. He thought that he was going to die that night and, in the moments following the shooting, he called his father to tell him that he loved him. He feels that no one can understand the impact that this shooting has had on him. This has led to Mr. Cseko having a rift with his daughter and his family.

39On the other hand, Defence counsel submits that Mr. Holder is a strong prospect for rehabilitation because:

1. He is 24 years old;

2. There is no evidence that he has been charged for an offence while in custody and thus I should find that he has been of good behavior while in custody; and

3. Mr. Holder has worked towards obtaining a high school diploma and taking whatever courses were available while in custody. (I note that this includes a substance abuse course which appears unnecessary as Defence counsel advised that Mr. Holder does not have a substance abuse problem).

40The above considerations do not adequately address Mr. Holder’s prospects for re-offending or rehabilitation.

41I find that Mr. Holder is not a good prospect for rehabilitation. He is a young man that has been convicted of violent crime on three occasions over the last six years. As noted earlier, the seriousness of the crimes for which he was convicted has increased on each occasion. In attempting to murder Mr. Cseko, he showed no regard for this court’s probation order issued in August 2015 and the weapons prohibition order issued in October 2012.

42Further, as the Ontario Court of Appeal noted in R. v. Shah, 2017 ONCA 872, at para. 8:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: … . It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: … . Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness … .

43Mr. Holder’s statement, which includes an apology for the pain suffered by Mr. Cseko, does not go further to express regret or responsibility for having attempted to murder Mr. Cseko.

44I also note that Mr. Holder’s apology:

a) understates the injuries suffered by Mr. Cseko by saying “I’m sure that it’s been a very traumatizing event that has shaken up your lives” when, in fact, it has done far more than shake up his life given that Mr. Cseko almost died on three occasions as a result of these catastrophic injuries and will suffer from the injuries that he caused for the rest of his life;

b) expresses greater concern for that the impact that a prison sentence will have on his daughter, by saying “sadly, the effect of this on my daughter is going to be the worst thing of all”, rather than the impact that this shooting has had, and will have, on Mr. Cseko.

45I find that the circumstances, including Mr. Holder’s absence of remorse, indicates a lack of insight into the crime that he committed and demonstrates a substantial likelihood of future dangerousness notwithstanding that he has taken certain programs while in custody. In my view, the objectives of denunciation and deterrence must be the primary objectives that inform the appropriate approach to sentencing in this case.

Aggravating Factors

46There are a number of aggravating factors:

• Mr. Holder’s criminal record of assault causing bodily harm in 2012 (at the age of 18) and in 2015 (at the age of 21);
• The sentences for these crimes did not serve to rehabilitate Mr. Holder. Instead, the violent nature of his behavior has only escalated;
• Mr. Holder was prohibited from possessing weapons at the time that he shot Mr. Cseko using a shotgun. Having been released into the community only five months earlier, Mr. Holder lacked self-control and judgment to avoid weapons and exhibited wanton disregard of a court order;
• The shooting was unprovoked. The only apparent motive for the shooting is the perceived slight Mr. Holder felt by Mr. Cseko’s intervention, as a concerned good Samaritan, in Mr. Holder’s domestic dispute with Ms. Dennis. Mr. Holder’s attempted murder of Mr. Cseko for this reason is beyond all comprehension and bears no rational relationship to the weight of the perceived slight;
• The shooting was premeditated. Mr. Holder returned to shoot Mr. Cseko with a shotgun after having left the motel to go home;
• The shooting was horrific. Mr, Holder used a shotgun, which has a devastating amount of power, to shoot Mr. Cseko while standing only 4 or 5 feet away from him;
• The shooting occurred in a public location, namely the outdoor patio of a bar that was attended by other patrons. Other patrons were near Mr. Cseko when he was shot; and
• Mr. Cseko suffered, and continues to suffer, from various catastrophic injuries from which he has almost died three times.

Mitigating Factors

47Mr. Holder’s youth is a mitigating factor. He was 22 years old at the time of the shooting and is now 24 years old. I find that the following circumstances are weaker mitigating factors:

• It appears from her letter that was provided to the court by Defence counsel, that Mr. Holder has the support of Ms. Dennis however, the strength of this support does not appear to be strong as Defence Counsel acknowledged that their relationship is “complicated” and he has “no idea as to the status of their relationship”; and
• While incarcerated, Mr. Holder has attempted to complete his high school degree and take whatever courses are available to him, including a 10 hour anger management course.

Case Law

48The parties provided me with a number of cases where sentences were imposed for attempted murder in what they submit are circumstances similar to this case.

49The Defendant relies heavily on R. v. Charles, 2014 ONSC 211. In that case, the two defendants attacked the victim with a baseball bat and stabbed him 32 times. There was no motive for the unprovoked attack. Both accused had criminal records. Charles had a history of convictions for assault causing bodily harm as well as a post-secondary school education and a supportive family. The other defendant, Renous, had an almost unbroken criminal record dating back to 2001 when he was a youth; he had since been engaging in increasingly serious criminal activity. Neither party accepted responsibility for the offence. There were no mitigating factors. The Crown sought life sentences. The defendants sought sentences at the lower end of the range of 6-8 years. Both defendants were sentenced to 10 years imprisonment less time served. Justice Boswell, at para. 18, stated: “… the accused are still young men and I believe remain capable of turning their lives around and making a positive contribution to society. Restorative justice principles must be given due regard.” The court found that the defendants did not pose an unpredictable, dangerous risk to the community. Charles is distinguishable for many reasons including that: (1) it did not involve a firearm: (2) the court was satisfied that the offenders did not pose an unpredictable, dangerous risk to the community; (3) the offenders came from supportive families. No such findings have been made in this case.

50The Defendant cited the following cases however they are distinguishable for various reasons:

• The defendant was not convicted of attempted murder: R. v. Q.B., 2003 ONCA 4187, [2003] O.J. No. 354 (C.A.);
• There is no indication that the Crown was seeking a life sentence in any of the cases cited by the Defendant other than in R. v. Charles, [2014] O.J. No. 173;
• The victim was not struck by the bullet discharged from the firearm:
  • In R. v. Spurway, 1996 ONCA 701, [1996] O.J. No. 3160 (C.A.) a revolver placed at victim’s forehead did not discharge after click sound heard. The defendant was sentenced to 15 years imprisonment for attempted murder;
  • In R. v. Gordon, 2009 ONCA 170, 246 O.A.C. 239, leave to appeal refused, [2009] S.C.C.A. No. 117. The defendant was upset when rebuffed by someone from whom he tried to buy drugs. The defendant returned with a shotgun and tried to shoot that man while he was outside a bar; the defendant missed the target, but struck three bystanders, one of whom lost sight in one eye and most of his sight in the other eye. The defendant was a non-violent recidivist. He received a sentence of 12 ½ years imprisonment for attempted murder;
  • In R v. Chevers, 2011 ONCA 569, 282 O.A.C. 388 the 24 year-old defendant fired two shots at the victim in a premeditated attack. The defendant had a prior criminal record of possession of a firearm and use of a prohibited handgun. The defendant received 15 years’ imprisonment less time served for attempted murder and two firearms offences;
  • In R. v. Alvarez, 2014 ONSC 902, the 27 year-old defendant felt disrespected by the victim’s boyfriend during a verbal altercation. The next evening, in a premeditated attack, he pursued the victim and her boyfriend, forcibly confined the victim, beat her and attempted to shoot her with a gun; however, no bullets were discharged. The defendant received a sentence of 10 years of imprisonment;
  • In R. v. Mohamed, 2014 ONCA 814, the defendant, a youthful offender, shot at the victim, a security guard in an apartment building, several times with a hand gun. The court’s brief reasons do not indicate that the guard was struck or injured. The defendant received a sentence of 13 years imprisonment for attempted murder and breach of firearms prohibition order.
• The defendant was not the subject of a weapons prohibition at the time of the attempted murder other than in R. v. Alvarez, supra, and R. v. Chevers, supra;
• The defendant had no prior criminal record:
  • In R. v. Johnson, 2016 ONCA 31, the masked defendant shot the victim at the doorway of his apartment and fled to a get-away car. The victim almost died and sustained long-term, serious injuries as a result of a “cold-blooded assault” that was committed for “no discernible reason”. The defendant, who did not have a prior criminal record, received 14 years’ imprisonment.
• The defendant pled guilty:
  • In R.v. Persaud, 2014 ONCJ 322, after an evening of drinking the victim and the 19 year-old defendant, got into an altercation. The defendant went home, returned with a shotgun and a few hours later shot the victim; the shotgun pellets grazed the side of his head. The victim sustained lacerations, was released from hospital that evening and made full recovery. The defendant turned himself into police on the day after the shooting, showed remorse by pleading guilty and apologized to the victim for his actions. The defendant received a sentence of 8 years and 6 months imprisonment less time served;
  • In R. v. Smith, 2016 ONCJ 565, the defendant pled guilty to six counts of attempted murder using a Glock handgun. The defendant was sentenced to 16 years imprisonment for each charge of attempted murder to be served concurrently.
• The attempted murder was not by means of gun violence:
  • In R. v. Charles, supra, the defendants attempted to murder the victim using a baseball bat and knife;
  • In R. v. Gill, 2015 ONSC 6184, [2015] O.J. No. 5339, the defendant stabbed his wife.

51The Crown relies heavily on R. v. Brown, supra. In that case, the defendant and the victim casually knew one another. As they crossed paths, the victim tapped the defendant on the shoulder. The defendant took offence and, in an impulsive act, shot the victim several times with a handgun. The victim was left paralyzed from the waist down. The defendant was 23 years old at the time of the offence. He had six prior convictions as an adult, including convictions for assault, for drug offences and for breaches of recognizance. The defendant had never been imprisoned for more than a few months. The defendant also had a young child. The only apparent motive for the shooting was that the victim had been disrespectful to the defendant by touching him. At the sentencing hearing, the Crown asked for a sentence of life imprisonment and the defendant asked for a sentence of seven years less time served. Given the circumstances, a life sentence was imposed. This sentence was upheld on appeal. The Ontario Court of Appeal did not disturb the finding that there was very real concern that the defendant would be shoot someone else in the future despite evidence that he was a young man and his course of conduct while in custody which included some academic progress.

52In deciding what is a fit sentence for attempted murder in this case, I have taken into account all of the considerations that I have described, including Mr. Holder’s prospects for rehabilitation. Mr. Cseko acted as a good Samaritan by intervening in a domestic dispute. Mr. Holder became angry with Mr. Cseko’s intervention. He chose to return to murder Mr. Cseko after leaving the motel for about 40 minutes. Mr. Holder attempted to murder Mr. Cseko using a shot gun from a distance of a few feet because he felt that he had been disrespected. In doing so, he breached a probation order and a weapons prohibition order. This was a cold-blooded and senseless shooting that resulted in catastrophic injuries that will remain with Mr. Cseko for the rest of his life. If not for Mr. Cseko’s quick thinking in turning his body sideways in the moment before he was shot, Mr. Holder would likely have been convicted of murder rather that attempted murder. As noted by Doherty J.A. in R. v. Varga, 2001 ONCA 8610, (2001), 150 O.A.C. 358 (C.A.), at para. 95, the culpability of a person convicted of attempted murder is hardly distinguishable from that of a murderer. At 22 years of age, Mr. Holder was a young man at the time that he attempted to murder Mr. Cseko. By that time, he had shown a propensity for violence that had escalated in its seriousness in the four years that he had been an adult. After having spent about nine months in jail for assault causing bodily harm and forcible confinement, Mr. Holder attempted to murder Mr. Cseko only five months after his release from custody. I have little confidence in Mr. Holder’s potential for rehabilitation and find that, in the circumstances, there are reasonable grounds that he could repeat this criminal behavior in the future without warning or reason. As Justice Nordheimer, as he then was, stated in Brown, at para. 23, the most serious and most shocking conduct should attract the most serious and severe penalty. I also mindful of the Ontario Court of Appeal’s direction in Brown, at para. 33, that the use of guns in public places in Toronto cries out for lengthy sentences.

53In considering all of the circumstances, I find that this is one of those rare cases where a sentence of life imprisonment for attempted murder is appropriate and directly proportionate to the gravity of the offence and Mr. Holder’s moral blameworthiness.

SHOULD ANY OF THE CONVICTIONS BE STAYED?

54Both the Crown and Mr. Holder agree that the conviction for intentionally discharging a firearm while being reckless as to the life or safety of another person pursuant to s. 244.2 of the Criminal Code should be stayed on the basis of the rule against multiple convictions as it is captured by attempted murder: R. v. Kienapple (1974), 1974 SCC 14, [1975] 1 S.C.R. 729 (S.C.C.). Accordingly, the conviction of intentionally discharging a firearm while being reckless as to the life or safety of another person pursuant to s. 244.2 of the Criminal Code is stayed.

55Mr. Holder submitted that the conviction for pointing a firearm at another person pursuant to s. 87 of the Criminal Code should be stayed on the basis. The Crown disagreed; however the Crown agreed that any sentence for pointing a firearm should be concurrent to the sentence for the attempted murder.

56No case law on the application of the Kienapple principle on this point was provided. As was the case in R. v. Ziegler, 2017 ABQB 515, at para. 2, I find that the charge of attempted murder by discharging a firearm and the offence of pointing a firearm turn on the same facts and that “pointing” a firearm was encompassed in “discharging” a firearm in respect of the attempted murder of Mr. Cseko. Accordingly, I find that it is appropriate to also stay the charge of pointing a firearm.

ANCILLARY ORDERS

57The Crown and Mr. Holder agree that a weapons prohibition order and an order requiring the provision of a DNA sample should be granted.

58The Crown also seeks an order that Mr. Holder not communicate with the victim, his father or his sister during the custodial period of his sentence. Mr. Heeney submitted that a non-communication order would be appropriate given the violent nature of the attempted murder and in light of the statements, particularly related to the ongoing mental trauma and fear, expressed in Mr. Cseko’s Victim Impact Statement. Mr. Heeney advised that Mr. Cseko’s father and sister are fearful of Mr. Holder and asked that the non-communication order extend to them as well.

59Section 743.21 of the Criminal Code states:

Non-communication order

743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.

Failure to comply with order

(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

60This provision was added to the Criminal Code in 2008 in recognition that the “… walls of a prison cannot prevent threats, intimidation and conspiracies”: See Bill C-13: An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), Prepared by Dominique Valiquet, Law and Government Division, 8 November 2007, Revised 3 July 2008, page 18.

61Defence counsel submits that a non-communication order should not be granted in this case as such orders are typically granted only in cases of domestic assault. However, there is no such limitation in the Criminal Code. Defence counsel also submits that there is no reason for the order because Mr. Holder has never communicated with Mr. Cseko or his family. Once again, there is no requirement in the Criminal Code that a non-communication order can only be made where there is a history of threats. Despite Mr. Holder’s statements to Mr. Cseko and his family, shown above, in which he expressed the hope that they could recover and find peace in their lives, his opposition to a non-communication order shows no insight into how Mr. Cseko and his family might reasonably fear him following his brutal shotgun attack on Mr. Cseko nor compassion for the mental trauma that this shooting has caused them. His opposition to a non-communication order becomes all the more bewildering given that Defence counsel submits that Mr. Holder has no intention of contacting Mr. Cseko or his family.

62I find that the Crown’s request for a non-communication order is justified. I order that Mr. Holder not communicate, directly or indirectly, with Steven Cseko, Istvan Cseko and Suzanna Cseko during the custodial period of his sentence.

DECISION

63In summary, my decision is as follows.

64On count number 1, attempted murder, Mr. Holder is sentenced to life imprisonment. Mr. Holder has been in custody for exactly 2 years. Pursuant to s. 746 (a) of the Criminal Code, in calculating the date of his parole eligibility, Mr. Holder shall be given credit for time served in pre-trial custody on the basis of 1.5 days for each day in custody prior to the date of sentencing. Accordingly, Mr. Holder shall receive 3 years credit for pre-trial custody. The Crown did not ask that parole be delayed and no such order is made pursuant to s. 743.6 of the Criminal Code.

65On count number 2, pointing a firearm, I stay this conviction.

66On count number 3, intentionally discharging a firearm while being reckless as to the life or safety of another person, I stay this conviction.

67On count number 4, both the Crown and Mr. Holder agree that a sentence of one year be given for the conviction for breach of a weapons prohibition order under s. 117.01(1) of the Criminal Code. Accordingly, on count number 4, Mr. Holder is sentenced to a period of imprisonment of one year. This sentence shall be served on a concurrent basis to the sentence on count number 1.

68Pursuant to section 109 of the Criminal Code I order that Mr. Holder is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for the remainder of his life.

69Pursuant to s. 487.051 of the Criminal Code, I order that Mr. Holder provide a DNA sample.

70Pursuant to s. 743.21 of the Criminal Code I order that Mr. Holder not communicate, directly or indirectly, with Steven Cseko, Istvan Cseko or Suzanna Cseko during the custodial period of his sentence.

FAIETA J. Released: September 13, 2018