Court File and Parties

COURT FILE NO.: CR-18-30000130-0000 DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – SIMEON HARTY

Counsel: Julie Battersby and Craig Coughlan for the Crown B. Craig Bottomley and Andrea VanderHeyden for Simeon Harty

HEARD: March 22, 2019

M. DAMBROT J. :

[1] Simeon Harty was tried by me with a jury on an indictment alleging that he committed the first degree murder of Kevin Gidden and that he attempted to murder Kemar McFarlane by discharging a firearm. He was found guilty of an included offence in each count: the second degree murder of Kevin Gidden in count 1, and discharging a firearm with intent to wound, maim, disfigure or endanger the life of Kemar McFarlane, contrary to s. 244(1) of the Criminal Code in count 2. I am now called upon to impose sentence. While a sentence of life imprisonment is mandatory for the offence of murder, I must decide whether I should substitute for ten years a greater number of years of imprisonment without eligibility for parole. I must also determine what ancillary orders should be made in this case.

The Offences

[2] On October 27, 2016, in the very early hours of the morning, Mr. McFarlane and Mr. Gidden left Mr. McFarlane's home, where they had been hanging out, to buy something to eat. They drove westbound along Lawrence Avenue East in Mr. McFarlane's Honda Civic to the Ultramar gas station convenience store at the northeast corner of Lawrence Avenue East and Orton Park Road. Mr. McFarlane parked in front of the door of the convenience store, left Mr. Gidden waiting in the front passenger seat, and entered the store. He picked up some pop and chips and a cigar. While he was at the back of the store choosing his purchases, he saw two men who were unknown to him in the store. Those two men were Simeon Harty and Walid Zakaria. They had arrived at the gas station in Mr. Harty's Mazda after the arrival of Mr. McFarlane. Mr. Harty parked behind the Honda, and the two men entered the store. When Mr. McFarlane returned to the counter at the front of the store to pay for his goods, Mr. Harty and Mr. Zakaria were standing behind him. Mr. McFarlane said that he had a weird feeling about the two men, and when he looked back they were staring at him. This made him uncomfortable.

[3] A store video recording that was admitted into evidence confirms Mr. McFarlane's account of what happened in the convenience store. It also reveals that when Mr. Zakaria and Mr. Harty stood behind Mr. McFarlane at the convenience store counter, Mr. Zakaria did a little head shake in the direction of Mr. McFarlane, following which, Mr. Harty tapped Mr. Zakaria's leg. I find as a fact that by shaking his head towards Mr. McFarlane, Mr. Zakaria was drawing Mr. McFarlane to Mr. Harty's attention, and that by tapping Mr. Zakaria's leg, Mr. Harty was acknowledging that he saw Mr. McFarlane.

[4] Mr. McFarlane completed his purchase, returned to his car, opened the front passenger door and gave the items that he had purchased to Mr. Gidden. He then went around to the driver's seat and entered the car. Meanwhile Mr. Harty completed his purchase quickly and then he and Mr. Zakaria followed Mr. McFarlane out of the store. Mr. Harty got back into the driver seat of his Mazda and Mr. Zakaria got into the front passenger seat.

[5] Mr. McFarlane started to move his car, but stopped because he had dropped some change. He and Mr. Gidden bent down and looked for it on the floor on the driver's side of the car. Meanwhile Mr. Harty's car pulled out from where it was parked behind McFarlane's car, circled a bit and then drove towards one of the exits to Orton Park, where it came to a stop. I infer from this that Mr. Harty was waiting to see where Mr. McFarlane was going to go, intending to follow him. Mr. Harty and Mr. Zakaria gave different explanations of exactly when and why they stopped, but both of their versions involved the people in Mr. McFarlane's car yelling insults at them. I find as a fact that this did not happen.

[6] Mr. McFarlane then drove out of the gas station onto Lawrence Avenue East and drove east towards his house. As he drove out of the gas station, Mr. McFarlane saw the Mazda speed up and follow behind him.

[7] When Mr. McFarlane got to the traffic lights at Lawrence and Overture, he stopped in the eastbound middle lane. He saw the Mazda speed up and pull up beside him on his right in the eastbound curb lane. The windows of his car were up, but he looked through his rear window as the Mazda caught up and saw that the driver's window of the Mazda was down. He could see that Mr. Zakaria was still in the front passenger seat of the Mazda and Mr. Harty was still in the driver's seat. He could see that Mr. Harty's right shoulder was out of the window, his right arm was stretched straight out and he had a black gun in his right hand. The gun was pointed at Mr. Gidden's side of Mr. McFarlane's car. Mr. McFarlane identified the gun as a Glock.

[8] Mr. McFarlane then heard what he thought were three gunshots. The glass on Mr. Gidden's side of the car shattered, and the Mazda turned around and sped away to the west. Mr. Gidden was shot twice, once in the head, and once in the arm. One bullet entered the right side of Mr. Gidden's head, fracturing his skull, passed through both lobes of his brain and exited through the left side of his head. This wound led to swelling and bleeding of the brain, causing Mr. Gidden's death. The second bullet entered Mr. Gidden's arm at his elbow and lodged in his wrist. This bullet was recovered during the autopsy.

[9] Two additional bullets were recovered in Mr. McFarlane's car. One was embedded in the driver's door and the other in the pillar between the front window and the window in the driver's door. In addition, two fired cartridge cases were recovered from the road at the location of the shooting. Mr. McGimpsey, a firearms and tool marks expert, examined all of the recovered bullets and cartridge cases. He said that the bullets were all .40 calibre class, and their rifling and weight was consistent with .40 calibre Smith and Wesson bullets. He also said that the two cartridge cases were fired from the same gun, and could have been fired by a .40 calibre Smith & Wesson Glock semi-automatic pistol.

[10] It was suggested to Mr. McFarlane in cross-examination that when he was stopped at Overture, Mr. Gidden pointed a gun at the Mazda, but that the passenger in the Mazda shot first and killed Mr. Gidden. Mr. McFarlane denied that anyone had a gun in his car, and I accept his evidence on this issue. My confidence in this aspect of Mr. McFarlane's evidence is reinforced by the remainder of the evidence.

[11] The only evidence that there was a gun in the Honda was the evidence of Mr. Zakaria. He testified that he saw the passenger in the Honda holding a gun straight up with his elbow bent, just holding it there, not moving it in any way, with his window closed. Mr. Zakaria testified that in response, he pulled his gun out of his pocket, took aim and fired four times through the open driver's window of the Mazda. As I will explain, the jury's verdict necessarily implies that it was Mr. Harty who shot at Mr. McFarlane, and as a result, it is inevitable that I find, beyond a reasonable doubt, that he also shot at and killed Mr. Gidden. Accordingly, Mr. Zakaria's credibility is damaged, and his claim that he shot Mr. Gidden when he observed him holding a gun is substantially undermined. However I reject his evidence that Mr. Gidden was holding a gun for other reasons as well. His description of Mr. Gidden holding a gun, and, in particular, holding a gun straight up is entirely inconsistent with the physical evidence.

[12] I note, first of all, how unlikely it would be for Mr. Gidden to threaten Mr. Harty and Mr. Zakaria by showing them a gun while keeping his window closed, unlike Mr. Harty, who opened his window as he approached the Honda. More importantly, it seems implausible that a bullet could enter Mr. Gidden's arm at the elbow and pass through his arm to his wrist if he was holding a gun straight up. I note as well that the fatal bullet entered the right side of Mr. Gidden's head, suggesting that he was facing forward at the time he was shot, an unlikely posture for a man threatening the occupants of a car on his right with a gun. Having regard to all of these circumstances, I am satisfied beyond a reasonable doubt that there was no gun in Mr. McFarlane's car.

[13] I turn next to my conclusion that it was Mr. Harty who shot Mr. Gidden, and who shot at Mr. McFarlane. I note that both Mr. Harty and Mr. Zakaria testified that Mr. Zakaraia was the sole shooter, and that he fired a gun through the driver's window from the front passenger seat. This is entirely inconsistent with the physical evidence, particularly the ejection of cartridge cases into the street rather than into the Mazda. But in any event, as I have said, the jury's verdict necessarily implies that it was Mr. Harty who shot at Mr. McFarlane. It also makes it a virtual certainty that he shot and killed Mr. McFarlane. I will endeavor to explain why this is so.

[14] As I have said, the jury's finding that Mr. Harty discharged a firearm with intent to wound, maim, disfigure or endanger the life of Kemar McFarlane necessarily implies that Mr. Harty was the actual shooter. While I instructed the jury that Mr. Harty could be guilty of murder as an aider if Mr. Zakaria was the shooter, I gave them no such instruction in relation to the offence of discharging a firearm. It remains technically possible, however, that the jury found that Mr. Harty shot at Mr. McFarlane, but that Mr. Zakaria shot and killed Mr. Gidden, and Mr. Harty was guilty of murder as an aider. But such a conclusion is entirely fanciful. It would mean that there were two guns and two shooters, shooting simultaneously. Simply put, this didn't happen. There could only have been one shooter with one gun. I say this for the following reasons.

[15] Mr. McFarlane, Mr. Harty and Mr. Zakaria all testified that there was one shooter, and one gun. The physical evidence raises no suspicion that there were two guns. And most importantly, Mr. Zakaria could only have shot from the front passenger seat out the driver's window and killed Mr. Gidden if, as he testified, Mr. Harty was leaning forward with his head down far enough to be out of the way, or, perhaps, if Mr. Harty were leaning back in a similar fashion. In either case, Mr. Harty could not have been shooting into the Honda at Mr. McFarlane at the same time as Mr. Zakaria was shooting at Mr. Gidden. Mr. Harty was the sole shooter.

[16] Returning to the narrative, Mr. McFarlane testified that after the shots were fired, Mr. Gidden was leaning over towards him and blood was gushing from his head. Mr. McFarlane tried talking to him to see if he was conscious, but his eyes were closed and he didn't say or do anything. Mr. McFarlane touched Mr. Gidden with his arm, trying to keep him up. He then sped to 43 Division, driving 60 or 70 kilometres per hour and running one red light along the way. It was suggested to Mr. McFarlane in cross-examination that he stopped at Galloway Road on the way to 43 Division to get rid of his gun. He denied it. I have already said that I find as a fact that there was no gun in Mr. McFarlane's car. It follows that I find that he made no stop on Galloway on the way to the police station to get rid of a gun.

[17] In the end, as I have explained, I find that Mr. Harty shot and killed Mr. Gidden, intending to cause his death, and he shot at Mr. McFarlane, intending to wound, maim, disfigure him or endanger his life. In addition, I am satisfied beyond a reasonable doubt that:

• Mr. Harty and Mr. Zakaria recognized or thought they recognized Mr. MacFarlane while they were all in the convenience store.
• Mr. Harty made the decision to follow Mr. Harty away from the gas station in his car while they were both in the convenience.
• There was no verbal altercation amongst the four men in the parking lot after they left the convenience store and before they left the parking lot.
• There was no gun in Mr. McFarlane's car during these events, and there was only one gun in Mr. Harty's car, which was shot by Mr. Harty.

[18] I am unable to determine why Mr. Harty shot his gun, why he intended to kill Mr. Gidden, and why he fired at Mr. McFarlane, intending to wound, maim, disfigure or endanger his life.

The Impact of these Crimes

[19] The Crown presented four victim impact statements at the sentencing hearing in this case, one written by Mr. McFarlane, and the other three by Mr. Gidden's mother, father and stepmother.

[20] Mr. McFarlane's statement describes the severe emotional scarring he has experienced as a result of this crime, and the overwhelming sadness and pain he feels as a result of the loss of his best friend. He suffers from anxiety, debilitating fear and night terrors. He is unable to work or continue with his education. He has seen a psychiatrist who has prescribed medication, but he says that it doesn't seem to work for him. His life is on hold.

[21] Mr. Gidden's family members describe a quiet, happy and loving young man who always went the extra mile to please others. He is greatly missed by his parents and siblings, who have been greatly affected by their loss. His father feels broken mentally and financially, and had to take time off work to recuperate and grieve.

The Offender

[22] Mr. Harty is 25 years of age. He was 22 at the time of this offence. He is the youngest of seven siblings raised by his mother. His father has never been meaningfully involved in his life. He is in a common law relationship, and has a two-year old daughter. He has a criminal record that consists of a conviction as a youth in 2010 for a break and enter, and convictions as an adult in 2012 for failure to comply with a recognizance and obstructing police, as well as in 2017 for theft under $5,000. The longest sentence imposed on him to date is two months. In addition, when he committed these offences, Mr. Harty was subject to a recognizance in the amount of $4,000 with two sureties in relation to a robbery charge which, among other conditions, required him to abide by a curfew from 11:00 p.m. to 6:00 a.m. each day, and not to possess a firearm. He was in violation of both of these terms of his recognizance.

[23] Despite his criminal record, Mr. Harty has a history of largely pro-social behavior. He has an employment history, having worked primarily in factory settings. He has also done volunteer work for BITSY, Building It to Suit Youth, and for the Don Montgomery Community Centre Youth Council, both of which are organizations dedicated to inspire, lift and provide a hub for youth led initiatives. He has also volunteered for the Scarborough Centre for Healthy Communities. He has the strong support of family and friends, who attest to his being hard working, living a positive life style, caring for and supporting others and being a great father.

[24] Mr. Harty has been an exceptional inmate while awaiting trial. He has taken and completed every course open to him, obtained his GED and taken two college courses. He has impressed the Native Inmate Liaison Officer of the John Howard Society and other officials of organizations he has interacted with while institutionalized with his leadership skills, positive attitude and hard work. He also has been praised by other inmates on his range for his leadership skills, positivity, support, helpfulness, fairness, respectfulness and honesty, and for being a peace maker. He clearly has prospects for rehabilitation.

[25] In addition, two of Mr. Harty's family members have written letters of support in which they say that Mr. Harty has expressed to them many times that he is incredibly remorseful for what he has done. These comments are rather curious in light of his evidence that he was not guilty of any offence.

The Jury's Recommendation

[26] The jury unanimously recommended that the offender be required to serve 10 years before he is eligible to be considered for release on parole.

The Positions of the Parties

[27] It is the position of the Crown that I should increase the 10 year period of parole ineligibility for second degree murder to 18 years, impose a ten year concurrent sentence for the finding of guilt for discharging a firearm with intent and impose certain ancillary orders.

[28] Counsel for Mr. Harty accepted that it would be appropriate for me to increase the period of parole eligibility, but recommended that the increase should be to 12 to 13 years. He recommended a sentence of 7 years for the offence of discharging a firearm with intent.

Analysis

[29] In determining the appropriate sentence to be imposed in this case, I bear in mind that the fundamental purpose of sentencing as set out in s. 718 of the Criminal Code is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which include denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgement of the harm that criminal activity brings to our community. I must also take into consideration the sentencing principles found in s. 718.2 of the Criminal Code.

[30] While the foregoing considerations apply to sentencing in general, the Criminal Code places a specific focus on the determination of parole ineligibility. Section 745.4 of the Criminal Code directs trial judges to set a period of ineligibility taking into account:

(i) the character of the offender; (ii) the nature of the offence; (iii) the circumstances surrounding the commission of the offence; and (iv) the recommendation of the jury, if any, pursuant to s. 745.2.

[31] With respect to the jury recommendation, while it is a factor to be considered in the determination of the period of parole ineligibility, it remains what it is: a recommendation. It is usually reached in short order, after an exhaustive determination of a verdict, and with very little guidance. It is not particularly well-informed, is generally made without any appreciation of the wider sentencing context and need not be slavishly followed. Indeed, in this case, quite appropriately, counsel for Mr. Harty did not support it. That is not to say that I will not take it into account that the jury recommended a degree of leniency. But I give it no more weight than that.

[32] In this case, when considering the nature of the offence and the circumstances surrounding it, I give strong consideration to the fact that this was a murder committed with a firearm. In this regard, I repeat what was said by the Court of Appeal in R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77:

In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:

It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.

[33] This case exemplifies the reason for a special concern about firearms. Whatever motivated Mr. Harty to give chase to the Honda, without a firearm it is most unlikely that he would have brought about a death. Not only did the firearm readily facilitate his murder of Mr. Gidden; it also made the virtually simultaneous shooting at Mr. McFarlane possible, putting his life at risk as well. Neither of these things could have been accomplished with knives or fists. In addition, I take into consideration the following aggravating circumstances:

• The offender had a criminal record, albeit a relatively minor one
• The offender was on judicial interim release at the time of the killing, and was in violation of two of the conditions of his release
• The offence had a terrible impact on Mr. McFarlane, and on the family and friends of Mr. Gidden.

[34] On the other hand, I take into consideration the following mitigating circumstances:

• the relative youth of the offender
• his generally exemplary conduct
• his contributions to the community, his family and his friends
• his positive attitude, good conduct and pursuit of education in detention pending trial
• his good prospects for rehabilitation
• the jury's parole ineligibility recommendation.

[35] Counsel placed before me a substantial number of judicial decisions in which parole eligibility determinations were made, and I have examined these cases with care. While they do provide me with some guidance about the appropriate range of disposition, every case is different. But the circumstances of this case are not unlike the circumstances in R. v. Grant, 2016 ONCA 639. In that case, while shopping in a flea market, two men robbed Grant of a chain he was wearing around his neck. The same thing had happened to his friend Vivian seconds earlier. A short time later, as Grant and Vivian were driving home, a car pulled up beside them. The robbers were in this car, and taunted Grant and Vivian. Vivian followed them in his car, accelerated and pulled up beside the men, and Grant drew a gun and fired thirteen shots. One of the five men in the other car was killed, and three others were wounded. Both Grant and Vivian were found guilty of second degree murder, and Grant was also found guilty of four counts of attempted murder.

[36] Grant was 21 years of age when he committed these offences, had a very minor criminal record, had extensive support from his family and was described by prison parole authorities as having excellent prospects of rehabilitation. He had taken every available opportunity over the course of his imprisonment to improve himself, including by returning to school, and he continued to play as active a role as he could in the life of his young child.

[37] The trial judge imposed a period of 18 years of parole ineligibility on Grant's life sentence, and imposed a life sentence on each count of attempted murder. He imposed a period of 13 years of parole ineligibility for Vivian. On appeal, the Court of Appeal reduced Grant's period of parole ineligibility to 14 years, and his sentences for the attempted murder offences to 13 years less appropriate consideration for pre-trial custody. The Court reduced Vivian's period of parole ineligibility to 11 years. The Court acknowledged that the nature of the offences and the circumstances surrounding their commission demanded an increase from the statutory 10-year minimum parole ineligibility, even for Vivian who was convicted as an aider. The court stated, at paragraph 171:

The nature of the offences and the circumstances surrounding their commission call for periods of parole ineligibility above the minimum, more so for Grant because he was the shooter. The trial judge fairly characterized the murder of Saez as "outrageous, shocking and horrendous" and he noted that "the use of guns remains a scourge to the Toronto community".

[38] However the Court concluded that the periods of parole ineligibility imposed by the trial judge were excessive, having regard to the age of the offenders, their minimal criminal records and their prospects of rehabilitation. The Court stated, at paragraph 175:

In the light of their youth and these other mitigating considerations, I think each appellant has a real potential for rehabilitation. Despite the highly aggravating circumstances surrounding the murder of Saez, these mitigating considerations warrant reducing the periods of parole ineligibility imposed by the trial judge. I would sentence Grant to a period of parole ineligibility of 14 years and Vivian to a period of parole ineligibility of 11 years. It would then be up to the parole board to determine when each appellant should be released.

[39] I have said that this case is not unlike the case of Grant. In fact, in many respects, the two cases are remarkably similar. The offences are similar, the ages of Grant and Harty are similar, and their prospects of rehabilitation are similar. While it might be said the Grant's offence was somewhat more aggravated than Harty's offence, particularly because Grant put the life of five people directly at risk rather than two, the fact that Harty had a slightly more serious criminal record and was on judicial interim release and in violation of two of the terms of his release when he committed these offences is an aggravating consideration present here but absent in Grant. In the end, I find that there is little to distinguish the cases.

[40] In this case, were it not for the mitigating factors, I would be inclined to impose a sentence of life imprisonment with a number of years of parole ineligibility of at least 16 years. But having regard to the unusually positive aspects of the character of the offender, his age and his prospects for rehabilitation, I settle on a sentence of life imprisonment and a period of parole ineligibility of 14 years.

[41] With respect to the offence of murder, I also impose a DNA order pursuant to s. 487.051(1), a weapons prohibition pursuant to s. 109(1) for life and an order pursuant to s. 743.21 that he have no communication while in custody with Kamar McFarlane or anyone known to him to be a member of his immediate family.

[42] As for the sentence to be imposed for the offence of discharging a firearm with intent, provided that it doesn't exceed the period of parole ineligibility I have set, it is somewhat academic. That said, and recalling as well that the same principles of sentence and most of the aggravating and mitigating circumstances apply to this offence, I need say very little further by way of explanation of the length of sentence I have settled on. In my view the appropriate sentence for this offence is one of 10 years. The offender is entitled to a reduction of this sentence to reflect his presentence custody. This is also a rather academic exercise, but in this case I will give him the statutory one day credit for each day spent in custody. As of today, the offender has spent just short of 2 years and five months in custody, so his effective sentence will be 7 years and 7 months.

Disposition

[43] Mr. Harty is sentenced as follows:

1. For the offence of second degree murder, life imprisonment, and a requirement that he serve 14 years of imprisonment before he is eligible to be considered for release on parole, together with a DNA order, a s. 109(1) firearms order for life and an order pursuant to s. 743.21 that he have no communication, directly or indirectly, during the custodial period of his sentence, with Kamar McFarlane or anyone known to him to be a member of Kamar McFarlane's immediate family.
2. For the offence of discharging a firearm with intent, imprisonment for 10 years, less 2 years and five months on account of pre-sentence custody for an effective sentence of imprisonment for 7 years and seven months. This sentence will be served concurrent to the sentence for second degree murder, since no fixed sentence can be made consecutive to a life sentence: R. v. Sinclair (1972), 6 C.C.C. (2d) 523 (Ont. C.A.).

M. Dambrot J.

RELEASED: April 25, 2019