ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-10000572-0000

DATE: 20181213

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NERVILLE FERDINAND

J. Capozzi, for the Crown

D. Smith and G. Igbokwe, for Mr. Ferdinand

HEARD: November 16, 2018

REASONS FOR SENTENCE

SCHRECK J.:

[1] Nerville Ferdinand chose to bring a loaded handgun to an apartment full of people while in a state of intoxication. While he was holding the gun, it discharged and the bullet hit a friend of his, causing severe and permanent injuries. Following a jury trial, Mr. Ferdinand was convicted of aggravated assault. What remains to be determined is the appropriate sentence.

[2] Although the jury convicted Mr. Ferdinand, some facts remain in dispute. The Crown alleges that Mr. Ferdinand fired the gun at the victim intentionally. Counsel for Mr. Ferdinand submits that the gun discharged unintentionally while Mr. Ferdinand was waving the gun in order to scare the others in the room. Both versions are consistent with the jury’s verdict.

[3] The Crown submits that the appropriate sentence is one of imprisonment for eight to 10 years. Counsel for Mr. Ferdinand submits that three to four years is appropriate.

[4] The appropriate sentence depends on the findings of fact that I must make. The following reasons explain my findings of fact and the sentence that will be imposed.

I. FACTS

A. History of the Proceedings

[5] This was Mr. Ferdinand’s second trial. At the first trial, in addition to aggravated assault he had also been charged with attempted murder, discharging a firearm with intent, and several firearm possession charges. The jury acquitted him of aggravated assault and discharging a firearm, convicted him of the firearm possession charges, and was unable to reach a verdict on the attempted murder count. A conviction was registered on the charge of possession of a loaded firearm without being the holder of a licence or authorization to possess it, contrary to s. 95(1) of the Criminal Code, and the other possession charges were stayed pursuant to the rule against multiple convictions. The trial judge at the first trial, M. Brown J., sentenced Mr. Ferdinand to imprisonment for four years for the s. 95(1) offence.

[6] The Crown appealed the acquittal for aggravated assault on the basis that the trial judge had erred by failing to instruct the jury on the elements of the offence of assault as defined in s. 265(1)(b) of the Criminal Code. While it had been the Crown’s theory that Mr. Ferdinand had committed an assault contrary to s. 265(1)(a), it submitted that on Mr. Ferdinand’s evidence, it was open to the jury to conclude that he had committed an assault by a threat or gesture as defined in s. 265(1)(b). The Court of Appeal agreed and ordered a new trial: R. v. Ferdinand, 2018 ONCA 836. At the new trial, the Crown did not pursue the attempted murder charge and Mr. Ferdinand was tried on a single count of aggravated assault.

[7] Mr. Ferdinand initiated an appeal against his firearm possession convictions and was granted bail pending appeal. I am advised that he intends to abandon his appeal after he is sentenced.

B. Evidence at Trial

(i) The Events Leading Up to the Discharge of the Firearm

[8] Because the facts are in dispute, I will summarize the evidence at trial in greater detail than I otherwise would in reasons for sentence.

[9] On the evening of June 17, 2014, Mr. Ferdinand went to the apartment of a friend of his, who was referred to at trial as Salih. Salih lived in an apartment on Bathurst Street which he shared with another individual known as Jimbo. Jimbo claimed and was believed to be associated with the Hell’s Angels outlaw motorcycle gang. Also present that evening were Jimbo’s girlfriend, Amy, Salih’s girlfriend, Josephine Lymberopoulos, and two other women. Of these people, only Mr. Ferdinand and Ms. Lymberopoulos testified at trial.

[10] After drinking significant amounts of alcohol, everybody at the apartment except Jimbo decided to go to a nightclub and took a taxi there. On the way there, Mr. Ferdinand and Amy began to argue. The argument escalated and culminated with Mr. Ferdinand spitting on Amy. Amy then called Jimbo and told him what had happened. As a result, Jimbo demanded that Mr. Ferdinand pay him a sum of money, failing which he would be killed by the Hell’s Angels.

[11] Mr. Ferdinand decided to return to Jimbo’s apartment to resolve the issue with him. Before doing so he called his best friend, Michael Godelia, and asked him to meet him near the apartment. Mr. Godelia did so. His younger brother, Tristan Kelly, came with him.

[12] Mr. Ferdinand then returned to the apartment together with Mr. Godelia, Mr. Kelly and Salih. There was some dispute as to whether Amy and Ms. Lymberopoulos returned with them, although there is no dispute that they were at the apartment at the time of the shooting.

(ii) The Witness Accounts of the Shooting

[13] Four witnesses testified about what happened at the time Mr. Kelly was shot: Ms. Lymberopoulos, Mr. Kelly and Mr. Godelia testified for the Crown and Mr. Ferdinand also testified. All agreed that upon arriving, Mr. Ferdinand and Jimbo went into a bedroom to talk and Mr. Godelia and Mr. Kelly waited on the stairs. While Mr. Ferdinand and Jimbo were in the bedroom, Ms. Lymberopoulos and Amy demanded that Mr. Godelia and Mr. Kelly leave, which they refused to do. A verbal and possibly physical altercation ensued. While it was ongoing, Mr. Ferdinand came out of the bedroom and removed a gun from a bag he had over his shoulder. The gun discharged and a bullet hit Mr. Kelly, causing him to fall down the stairs. Mr. Kelly is now a paraplegic as a result of his injuries.

[14] There were also significant differences between the witnesses’ accounts.

[15] According to Ms. Lymberopoulos, when Mr. Ferdinand came out of the bedroom, he was yelling at everybody to be quiet. As he approached the stairs, he reached into the bag and removed the gun. Ms. Lymberopoulos described him as “flailing” the gun or “trying to flaunt it”. At another point, she described him as “sloppily taking the gun out”. According to her, he did not point the gun at anybody, wave it around or threaten to shoot anybody. Ms. Lymberopoulos had the impression that Mr. Ferdinand produced the gun because nobody was listening to him. As Mr. Ferdinand removed the gun, it went off and the bullet struck Mr. Kelly, who then fell down the stairs. Ms. Lymberopoulos said that it all happened very fast and that the gun went off before Mr. Ferdinand had a chance to “flaunt” it.

[16] Mr. Kelly testified that when Mr. Ferdinand came out of his bedroom, he, his brother and the two women were involved in a physical altercation. One of the women had reached over the railing and grabbed Mr. Kelly’s shirt. Mr. Kelly grabbed her wrists and pushed her hands back. At that point, he looked up and saw Mr. Ferdinand, who was holding a gun with his right hand and pointing it at him. Mr. Kelly did not see where the gun had come from and had not seen the movement of the gun. He agreed that it was possible that the gun had been moving upwards and that at some point during that motion, it had gone off. He then saw a light, heard a bang, and fell down the stairs. He was not aware of any reason why Mr. Ferdinand would want to shoot him.

[17] Mr. Godelia testified that Mr. Ferdinand came out of the bedroom after he had called for him to come. He testified that Mr. Ferdinand ran to the top of the stairs and stopped about a metre away from Mr. Kelly. Mr. Ferdinand then pulled out the gun, held it with two hands and his arms extended, pointed it at Mr. Kelly and fired. According to Mr. Godelia, Mr. Ferdinand shot Mr. Kelly deliberately, although he was unaware of Mr. Ferdinand having any motive for doing so.

[18] Mr. Ferdinand testified that he came out of the bedroom after hearing a commotion and saw Mr. Godelia and Mr. Kelly fighting with the two women. Salih and Jimbo were also shouting and two dogs were barking. He testified that he wanted to quiet everybody down, so he decided to take the gun out of the bag. He did so without thinking. He testified that his intention was to get everybody’s attention in the way a teacher in a noisy classroom might strike a table with a ruler. He did not intend to threaten anybody. As he pulled the gun out of the bag, it discharged accidentally and Mr. Kelly was hit by the bullet. Mr. Ferdinand claimed that he did not intend to aim at, shoot or threaten anybody. The jury obviously rejected at least some of his evidence.

C. Impact on the Victim

[19] Mr. Kelly, who was 17 years old at the time of the shooting, suffered very significant and permanent injuries as a result of the gunshot wound. He now suffers from tetraplegia because of a spinal cord injury. He is unable to walk and confined to a wheelchair. He has weakness in both arms and decreased movement in his hands. He is dependent on others for virtually all activities of daily living. He is also at increased risk of developing a number of other serious medical conditions, including a life-threatening condition known as autonomic dysreflexia, osteoporosis, chronic pain, depression and anxiety.

[20] Mr. Kelly prepared a brief victim impact statement. In it, he stated that he is no longer emotionally hurt by what happened. He said that he has forgiven Mr. Ferdinand, but that this does not mean that he has “forgotten and let it go.” He explained that he can no longer do anything on his own and depends on others. He can no longer play the sports he used to enjoy. He has had to abandon his plan to become an electrician, and his prospects for another profession or further schooling are limited.

[21] Mr. Kelly’s grandmother also prepared a victim impact statement. She describes how the offence has had a devastating impact on Mr. Kelly and on her own emotional well-being. She clearly cares deeply for Mr. Kelly and has devoted a lot of energy and financial resources towards his care since the offence was committed. She also alludes to some discord between herself and other members of Mr. Kelly’s family, but the cause and nature of this is not entirely clear. She also expresses certain personal opinions about Mr. Ferdinand. Although these sentiments are understandable, they are not something I can consider in determining the appropriate sentence in this case.

D. The Circumstances of the Offender

(i) Background and Character

[22] Mr. Ferdinand was 19 years old at the time the offence was committed. He has no prior criminal record. He spent significant time in custody after his arrest and once released was subject to strict bail conditions. While on bail, he lived with his mother and worked at his father’s renovation business. He also furthered his education by taking a stock market course through the Toronto District School Board Continuing Education Department.

[23] Many friends and community members wrote letters of support for Mr. Ferdinand. All of them speak highly of him. Several describe him as a person who is willing to help and support friends in times of need.

(ii) Letter of Apology

[24] Mr. Ferdinand wrote a letter of apology to Mr. Kelly and also apologized when he addressed the court at the conclusion of the sentencing hearing. He indicated that he would have apologized sooner, but was prohibited from having any contact with Mr. Kelly by the terms of his bail.

(iii) Immigration Consequences

[25] Mr. Ferdinand is originally from St. Lucia. He is a permanent resident of Canada, but not a Canadian citizen. Section 36(1)(a) of the Immigration and Refugee Protection Act (“IRPA”) provides that a permanent resident is inadmissible to Canada on grounds of “serious criminality” if he is convicted of an offence for which a term of imprisonment of six months or more is imposed. Mr. Ferdinand has already been sentenced to imprisonment for four years by Brown J. for the s. 95(1) offence, and the parties agree that a penitentiary sentence is warranted for the aggravated assault offence.

[26] I have been advised that in July 2017, a Canadian Border Services Agency (“CBSA”) officer made a report pursuant to s. 44(1) of the IRPA recommending that Mr. Ferdinand be referred to an admissibility hearing before the Immigration Division based on reasonable grounds to believe that he is inadmissible. In a letter filed at the sentencing hearing, Mr. Ferdinand’s immigration lawyer explained that a referral to an admissibility hearing will result in a removal order from which there would be no appeal. According to s. 44(2) of the IRPA, the Minister of Citizenship and Immigration has a discretion whether or not to refer a person to a hearing. Mr. Ferdinand’s immigration lawyer has made submissions to the Minister requesting that he not be referred. Thus far, no decision has made. In the lawyer’s opinion, a lengthy sentence imposed for the aggravated assault conviction would increase the likelihood of referral.

II. ANALYSIS

A. General Principles

[27] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. Section 718.1 provides that the sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[28] The various sentencing objectives are often in competition with one another in that maximizing the denunciatory or deterrent effect of the sentence may be inimical to the rehabilitation of the offender and vice versa. That tension between competing objectives exists in this case. Offences of violence, particularly those involving illegal firearms, clearly require that there be significant emphasis on the principles of denunciation and deterrence. On the other hand, while the objective of rehabilitation may play a diminished role in cases involving firearms, it is nonetheless an important objective, particularly in cases involving youthful first offenders.

[29] There is often ultimately no one correct way to achieve balance between the competing sentencing objectives, which is why sentencing judges are usually given a wide latitude in determining the appropriate sentence in any given case. The overarching goal is to arrive at a sentence that is proportionate to the gravity of the offence the offender’s degree of responsibility.

B. Findings of Fact

(i) Overview

[30] As explained, it was open to the jury to convict Mr. Ferdinand on the basis of either s. 265(1)(a) or s. 265(1)(b). It is, of course, unknown which theory the jury accepted. Indeed, the jurors were not required to all agree with respect to the basis for Mr. Ferdinand’s liability: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, at pp. 689-699. The parties agree that I am therefore required to make my own findings of fact for the purpose of sentencing. In doing so, I am guided by what was said in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18:

First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C

(ii) The Crown’s Theory

[31] As she did before the jury, Crown counsel submits that Mr. Ferdinand shot Mr. Kelly intentionally, and thereby committed an assault contrary to s. 265(1)(a). She accepts that an intentional shooting would be an aggravating factor and, as such, must be proven beyond a reasonable doubt.

[32] In support of her theory of liability, Crown counsel relies on the evidence of Mr. Godelia and Mr. Kelly that Mr. Ferdinand aimed the gun at Mr. Kelly before firing. She also points out that Mr. Ferdinand was very angry throughout the evening. Crown counsel also advanced the theory that because Mr. Kelly was involved in an altercation with Amy, who was Jimbo’s girlfriend, Mr. Ferdinand may have shot him intentionally in order to ingratiate himself with Jimbo, who had threatened him.

(iii) Findings

[33] There are several reasons why I cannot accept the Crown’s theory. First and foremost, Mr. Ferdinand had absolutely no motive for shooting Mr. Kelly. Mr. Kelly was the younger brother of Mr. Ferdinand’s best friend. The only reason he and Mr. Godelia were there was to support and assist Mr. Ferdinand. There is no evidence that Mr. Ferdinand and Mr. Kelly had had any sort of argument or disagreement. The suggestion that Mr. Ferdinand shot Mr. Kelly to ingratiate himself with Jimbo is, with the greatest of respect, preposterous. The Crown’s theory throughout both trials was that Mr. Ferdinand was angry at and feeling aggressive towards Jimbo. There has been no suggestion that he intended to appease Jimbo in any way, let alone by shooting his best friend’s brother.

[34] While Mr. Kelly testified that Mr. Ferdinand pointed the gun at him, he agreed that he did not see where the gun had come from and had not seen the movement of the gun. He also agreed that it was possible that the gun had been moving upwards and that at some point during that motion, it had gone off.

[35] With respect to the evidence of Mr. Godelia, he was inconsistent with every other witness with respect to where everybody was standing at the time the gun was fired. More importantly, Mr. Kelly’s injuries are not consistent with Mr. Godelia’s version of events. The bullet entered Mr. Kelly’s left mandible and was lodged in his right shoulder, so he could not have been standing with his right side to Mr. Ferdinand at the time the gun was fired, as Mr. Godelia described. While Crown counsel suggests that Mr. Kelly could have been turning his head, no witness testified that he had done so and in any event, this still would not explain how the bullet came to be lodged in his right shoulder.

[36] Having considered all of the evidence, I find as a fact that the gun went off as described by Ms. Lymberopoulos and Mr. Ferdinand. I accept that Mr. Ferdinand produced the gun in order to scare everybody and that it went off unintentionally while he was removing it from his bag.

[37] That said, there are some aspects of Mr. Ferdinand’s testimony I do not accept. I do not accept that he was not intending to threaten or scare anybody by removing the gun. The jury’s verdict precludes me from accepting this aspect of Mr. Ferdinand’s evidence, but I would not accept it even if I could as it is not, in my view, credible.

[38] I also do not accept Mr. Ferdinand’s evidence that Mr. Godelia threw the bag with the gun over his shoulder as he was entering the bedroom with Jimbo. It would make no sense for Mr. Godelia to do this. Mr. Godelia had been in Mr. Ferdinand’s company for a significant length of time before returning to the apartment. If he was going to arm Mr. Ferdinand, he would have done so before Mr. Ferdinand returned to confront Jimbo. It would also make little sense to give Mr. Ferdinand a bag containing a gun without telling him what was inside. I find that Mr. Ferdinand procured the gun at some point before he returned to the apartment and likely did so with the intent of using it to protect himself from Jimbo if it became necessary to do so. He must have known that it was loaded and ready to fire.

C. Aggravating and Mitigating Factors

(i) Aggravating Factors

[39] The most significant aggravating factor in this case is the extent of the catastrophic injuries suffered by Mr. Kelly as a result of Mr. Ferdinand’s actions. The fact that Mr. Kelly has forgiven Mr. Ferdinand demonstrates the grace and strength of character that Mr. Kelly manages to have despite all that has befallen him.

[40] Another aggravating factor is the fact that after the gun was discharged, Mr. Ferdinand made no effort to assist Mr. Kelly, putting his own interests before those of the person he must have known he had seriously injured. Mr. Ferdinand’s attempts to cover up the crime by disposing of the gun and his clothing can also be considered as an aggravating factor: C.C. Ruby et al., Sentencing, 9th ed. (Toronto: LexisNexis Canada Inc., 2017), at p. 279, §5.121. However, in this case I accept Mr. Ferdinand’s evidence that he did so out of panic and not to dispose of evidence: R. v. Lemay (1998), 1998 12957 (QC CA), 127 C.C.C. (3d) 528 (Que. C.A.), at p. 542. As he pointed out, there were numerous witnesses to the offence and disposing of the gun and his clothing was unlikely to impede the investigation.

[41] I note, as well, that Mr. Ferdinand made the decision to arm himself with a loaded handgun in circumstances where he knew that he was intoxicated, creating an obviously very dangerous situation.

(ii) Mitigating Factors

[42] Mr. Ferdinand is a youthful first offender. This is a significant mitigating factor: R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797. His prospects for rehabilitation are high and he has demonstrated that he is capable of becoming a contributing member of society.

[43] Counsel for Mr. Ferdinand pointed out that although he did not plead guilty, he had been acquitted at the first trial and even if he did plead guilty, the Crown would nonetheless have called evidence in an attempt to prove aggravating factors. In my view, the reasons why Mr. Ferdinand chose to have a trial are irrelevant. A guilty plea is usually viewed as an acknowledgment of responsibility and an expression of remorse: R. v. Fegan (1993), 1993 8607 (ON CA), 80 C.C.C. (3d) 356 (Ont. C.A.), at p. 362. While a guilty plea is a mitigating factor, the decision to have a trial is not an aggravating factor: R. v. Ellacott, 2017 ONCA 681, at para. 22. This is true regardless of why the accused chooses to have a trial. An accused who chooses to have a trial because he has a good defence does not demonstrate remorse any more than an accused who chooses to have a trial he is likely to lose. Nor, in my view, should the court inquire into the reason why an accused chose to have a trial. He does not need to have a reason at all. Having a trial is his constitutional right.

[44] All of that said, Mr. Ferdinand did demonstrate some remorse, both in the letter he wrote and during his comments at the sentencing hearing. Of course, an expression of remorse following a trial carries far less weight than the remorse expressed through an early guilty plea.

(iii) Collateral Immigration Consequences

[45] As noted earlier, as a result of his actions, Mr. Ferdinand faces the prospect of deportation. This is not, strictly speaking, a mitigating factor. However, the prospect of deportation is a collateral consequence and as such is properly taken into account in determining the appropriate sentence: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-13. However, this is not a case where the prospect of deportation can be avoided by imposing a sentence of less than six months: Pham, at para. 15. Quite apart from the fact that Mr. Ferdinand has already been sentenced to four years for the s. 95(1) offence, the offence he is being sentenced for here clearly calls for a significant penitentiary sentence. I note, as well, that at this point Mr. Ferdinand faces only a risk of deportation. Whether he is deported remains to be seen.

D. The Applicable Range

(i) The Range in R. v. Bellisimo

[46] The Crown seeks a sentence of imprisonment for eight to 10 years, less credit for pre-trial custody. Crown counsel submits that such a sentence would fall within the seven to 11 year sentencing range identified in R. v. Bellisimo, 2009 ONCA 49. Given the Crown’s reliance on Bellisimo and other cases that follow it, some discussion of the case is warranted.

[47] Bellisimo is a one-page endorsement from the Ontario Court of Appeal allowing a Crown appeal against sentence. It is not clear from the endorsement what offence the offender was being sentenced for, but it appears that there was more than one. The only facts set out are that the offender fired several shots in a restaurant, one of which significantly injured a victim, another of which caused minor injury to a victim, and a third of which narrowly missed killing a third victim. Whether or not the offender had a prior criminal record is not indicated. The Court of Appeal concluded that the effective sentence of eight and a half years imposed at trial was manifestly inadequate and raised it to 10 years. In the course of doing so, the Court stated (at para. 3): “We agree that the range of sentence for these kinds of serious gun related offences is between seven and 11 years.”

[48] Notwithstanding that it is a brief endorsement, the range identified in Bellissimo has been applied in several Ontario trial and appellate decisions: R. v. Jefferson, 2014 ONCA 434, at para. 14; R. v. Dhaliwal, 2018 ONSC 303, at paras. 50-55; R. v. Mohammad, 2017 ONCJ 298, at para. 11; R. v. Reis, 2017 ONSC 2044, 380 C.R.R. (2d) 361, at para. 18; R. v. Callaghan, 2017 ONSC 1853, at para. 59; R. v. Rodney, 2017 ONCJ 68, at paras. 22-23; R. v. Ali, 2016 ONSC 8190, at para. 3; R. v. Nadon, 2016 ONSC 3518, at para. 33; R. v. Murphy, 2016 ONCJ 67, at para. 15; R. v. Persaud, 2014 ONCJ 322, at para. 16; R. v. Alexander, 2013 ONSC 171, at para. 33; R. v. Ghebreigziabiher, 2012 ONSC 5384, at paras. 38-39; R. v. Larmond, 2011 ONSC 7170, at para. 26; R. v. Walker-King, 2011 ONSC 4307, at para. 37.

(ii) The Role of Intentionality

[49] The range identified in Bellissimo applies to “these kinds of serious gun related offences”. The applicability of that decision will therefore depend on whether the offence in this case falls into that category. In my view, it does not because Mr. Ferdinand did not intentionally discharge the firearm, unlike in all of the cases in which the Bellissimo range was applied. In fact, in all but two of those cases, the accused was convicted of an offence under s. 244 or 244.2 of the Criminal Code, which require proof of an intentional discharge of a firearm. The other two cases, Nadon and Persaud, involved convictions for attempted murder.

[50] As noted in R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633, at p. 645, it is a “fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally.” See also R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 36. In this case, the conviction for aggravated assault means that the jury was satisfied that a risk of bodily harm was objectively foreseeable as a result of Mr. Ferdinand’s action. The jury was not required to find that Mr. Ferdinand meant to harm anybody, and as noted earlier I find that he did not. In my view, this distinguishes this case from those where an accused intentionally shot at another person meaning to injure him or her or, at the very least, being reckless as to whether an injury results: R. v. Issaky, 2012 ONSC 2420, at para. 41.

[51] I do not wish to be taken as downplaying the degree of Mr. Ferdinand’s moral culpability. He engaged in extremely dangerous and reckless behaviour with devastating consequences. His moral culpability is significant. However, it is less than that of a person who intentionally discharges a firearm at somebody.

(iii) The Range in Cases of Unintentional Shootings

[52] The case I have been referred that has, in my view, the most similarity to the case at bar is R. v. Brooks, 2012 ONCA 703, 298 O.A.C. 126. As in this case, the offender was in illegal possession of a loaded semi-automatic handgun while under the influence of alcohol. As in this case, the gun discharged unintentionally and the bullet hit a friend of his. Unlike this case, however, the victim died as a result and the offender was convicted of manslaughter, an offence subject to a four-year mandatory minimum sentence. In reducing the seven-year sentence imposed at trial to five, a majority of the Court of Appeal described the appropriate applicable range as being four to eight years (at para. 21). There are of course differences between Brooks and this case. The offender in Brooks was of Indigenous origin, although the Court held that this did not influence the appropriate sentence (at para. 13). However, unlike Mr. Ferdinand, the offender in Brooks had grown up in “appalling” circumstances. Even more significantly, he had pleaded guilty. On the other hand, the offender in Brooks was subject to a bail order prohibiting him from possessing firearms at the time of the offence.

[53] It would appear from Brooks that the appropriate range for manslaughter resulting from the unintentional discharge of an illegally possessed firearm is four to eight years: Brooks, at para. 21; R. v. Melo, 2012 ONCA 562; R. v. Ispanovic, 2008 BCCA 270, 257 B.C.A.C. 31; R. v. Colville, 2005 ABCA 319, 53 Alta. L.R. (4th) 226; R. v. Dingwell, 2012 PESC 13, 421 Nfld. & P.E.I.R. 263. In my view, the range for aggravated assault resulting from similar conduct must be somewhat lower. This is so not only because the consequences are less serious, but also because the offence of manslaughter with a firearm carries a mandatory minimum sentence, which has the effect of creating an “inflationary floor” that increases the overall range: Morrissey, at para. 75, per Arbour J., concurring, R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19, at paras. 18-19.

[54] The possession of an illegal handgun is, by itself, a very serious offence warranting severe penalties, even where nobody is injured, and usually results in a sentence of two to five years: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 108-109, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Graham, 2018 ONSC 6817, at paras. 37-38; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 53-56; R. v. Mansingh, 2017 ONCA 68, at paras. 21-24; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 128-129; R. v. Carrol, 2014 ONSC 2063, at paras. 21-28. A consideration of this range together with the range identified in Brooks leads me to conclude that the applicable range in cases where an accused unintentionally causes serious injury with an illegally possessed firearm is one of three to seven years.

E. The Appropriate Sentence in This Case

[55] The remaining question is where, within that range, do the circumstances of this case fall? As noted, Mr. Ferdinand engaged in very dangerous behaviour resulting in very severe consequences. However, he is a youthful first offender and while he did not plead guilty, he has expressed some remorse and has positive prospects for rehabilitation. Having considered all of the aggravating and mitigating circumstances, I am of the view that the appropriate sentence in this case is one of five years.

F. Presentence Custody and the Effect of the Sentence Imposed at the First Trial

[56] The s. 95(1) offence and the offence for which I am sentencing Mr. Ferdinand arose from the same course of conduct. In my view, the sentences for the two offences ought to be concurrent. Ordinarily, Mr. Ferdinand would have been sentenced for both at the same time. However, because the aggravated assault conviction occurred after a re-trial, I am sentencing Mr. Ferdinand over a year after he was sentenced for the s. 95(1) offence.

[57] As noted earlier, when Brown J. sentenced Mr. Ferdinand for the s. 95(1) offence on November 7, 2017, he concluded that the appropriate sentence for that offence was four years. From this, he deducted 25 months of credit for 507 days spent in pre-trial custody (which he credited at a rate of 1.5 to one) and an additional three months for time spent subject to stringent bail conditions, leaving a net sentence of 20 months. As Mr. Ferdinand ought to have been sentenced for this offence at the same time, I will give him the same credit, leaving a net sentence of 32 months.

[58] Section 719(1) of the Criminal Code provides that a sentence commences at the time that it is imposed. I am advised that Mr. Ferdinand served approximately seven months of the sentence imposed by Brown J. before being granted bail pending appeal on May 28, 2018. I am also advised that he intends to abandon his appeal as soon as I impose sentence. If the two sentences had been imposed at the same time, Mr. Ferdinand would have already served approximately seven months of the sentence. It is therefore fair that I adjust the sentence that I am imposing.

[59] If the 32-month sentence had been imposed at the same time as the 20-month sentence for the s. 95(1) offence, Mr. Ferdinand would have served approximately seven months of it by now. He would therefore have to serve an additional 14 ⅓ months in order to reach two-thirds of the sentence and be entitled to statutory release. However, if I impose a 25-month sentence beginning today (32 months less the seven he has already served), he will have to serve 16 ⅔ months to reach his statutory release date. It is not fair that Mr. Ferdinand should have to serve more time because through no fault of his own, two concurrent sentences that ought to have been imposed at the same time are being imposed more than a year apart. In order to ensure that Mr. Ferdinand is in the same position he would have been in had the sentences been imposed at the same time, I will impose a total sentence of 21 months so that his statutory release date is approximately where it would have been had he been sentenced for both offences at the same time.

[60] I recognize that the approach I am taking will result in Mr. Ferdinand having an earlier warrant expiry date than he otherwise would. I am nonetheless of the view that this is the fairest way to proceed for reasons similar to those explained by the Ontario Court of Appeal in R. v. Carrière (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.). In that case, the Court of Appeal concluded in a decision released in April 2002 that the sentence that ought to have been imposed at the time of the trial in November 1996 was 14 years. However, the Court did not simply deduct the time that the appellant had already served for the following reasons (paras. 18-19):

Giving Mr. Carrière credit for three years as a result of his pre-sentence custody, we would have imposed a sentence of 14 years were we sentencing Mr. Carrière in November 1996. Had he received that sentence, he would have been eligible for mandatory release in April 2006 after serving two-thirds of that sentence. To achieve the same results with the sentence we must now impose, we would impose a sentence of 6 years running from the release of these reasons. On this sentence Mr. Carrière will be eligible for mandatory release in April 2006. His sentence will expire in April 2008.

We realize that had Mr. Carrière received a 14 year sentence in 1996, his sentence would not have expired until 2010, some two years later than the sentence we choose to impose. However, had we imposed a sentence that expired in 2010 (that is, an 8 year sentence), Mr. Carrière’s mandatory release date would not have arrived until September 2007, some 16 months after his mandatory release date had he been sentenced to 14 years in November 1996. We do not think that Mr. Carrière should be disadvantaged by the delay in the process. Consequently, in choosing between a somewhat earlier warrant expiry date, and a somewhat later mandatory release date, we have opted for the former.

Unlike in Carrière, because the sentence being imposed is less than two years, I have the option of compensating for the shorter sentence by imposing a period of probation. I intend to do so.

G. Probation

[61] While Mr. Ferdinand’s warrant expiry date will be sooner than it otherwise would be because of the unusual circumstances of this case, he will not be without state supervision after the expiry of his custodial sentence because he will be placed on probation for a period of 12 months.

[62] In addition to the statutory conditions, Mr. Ferdinand will be required to report to a probation officer forthwith upon his release from custody and thereafter as required. He is to take such counselling for alcohol abuse as recommended by his probation officer. As noted earlier, Mr. Ferdinand was intoxicated at the time of the offence. It was his evidence at trial that he had consumed most of a 750 ml. bottle of cognac earlier in the evening. In my view, the fact that he had consumed such a large amount of alcohol so quickly and that the result was that he engaged in extremely dangerous behaviour with devastating consequences strongly suggests that he has a problem with alcohol. My intention is to ensure that he deals with this problem in order to protect the public. As well, Mr. Ferdinand is not to possess any weapons as defined by the Criminal Code and he is to have no direct or indirect contact with Tristan Kelly, Michael Godelia, or members of their immediate family. I invite counsel to suggest additional conditions.

H. Ancillary Orders

[63] There will be an order made pursuant to s. 109(1) of the Criminal Code prohibiting Mr. Ferdinand from possessing firearms and other items described in the section for the periods prescribed by the section. There will be an order pursuant to s. 487.051(2) of the Code that Mr. Ferdinand provide a sample of his DNA for inclusion in the national databank. I also make an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Ferdinand from communicating directly or indirectly with Tristan Kelly, Michael Godelia or members of their immediate family during the custodial portion of his sentence.

III. DISPOSITION

[64] Mr. Ferdinand is sentenced to a term of imprisonment for 21 months after being given credit of 25 months for 507 days spent in presentence custody. Thereafter, he will be placed on probation for 12 months. Orders to go pursuant to ss. 109(1), 487.051(2) and 743.21 of the Criminal Code in accordance with these reasons.

Justice P.A. Schreck

Released: December 13, 2018.

COURT FILE NO.: CR-180000572-0000

DATE: 20181213

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NERVILLE FERDINAND

REASONS FOR SENTENCE

P.A. Schreck J.

Released: December 13, 2018.