COURT FILE NO.: CR-03338/18

DATE: 20191129

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

CHRISTOPHER KANE

Anita Kocula, for the Crown

Tom Shoniker, for the accused

HEARD: October 25, 2019

K.L. Campbell J.

REASONS FOR SENTENCE

A. Overview

1On August 14, 2019, at the conclusion of his jury trial, the accused, Christopher Kane, was found guilty of the following three offences: (1) using a firearm (a handgun) to commit a robbery; (2) aggravated assault; and (3) occupying a motor vehicle knowing it contained a firearm – contrary to ss. 344(1)(a.1), 268(2) and 94(2) of the Criminal Code, R.S.C. 1985, chap. C-46 respectively. The accused committed all of these offences in Toronto on or about November 27, 2017. He now appears for sentencing.

2Essentially, the accused, an admitted drug-trafficker, robbed the victim, another admitted drug-trafficker, at gun-point with a handgun. This robbery took place inside the victim’s motor vehicle. The accused robbed the victim of some nine ounces of MDMA that the accused had earlier agreed to purchase. During this robbery the accused shot the victim in his left forearm. The accused then fled from the vehicle with the victim’s illicit drugs and his own $3,600 that he had earlier agreed to pay for the MDMA. In short, this was a drug robbery, in which one drug dealer shot another drug dealer, in order to steal his drugs for profit.

3The Crown seeks the imposition of a global six-year term of imprisonment, together with some ancillary sentencing orders, stressing the need for the imposition of a sentence that reflects the gravity of the offences, their impact upon the victim, and the corresponding need for denunciation and deterrence (both general and specific). The Crown concedes, however, that this sentence must be reduced by the appropriate credit the accused must be given for his pre-sentence custody.

4Defence counsel seeks the imposition of a global four-year term of imprisonment, emphasizing the youth of the accused, his positive efforts towards a more pro-social lifestyle during his time in custody, and his optimistic prospects for rehabilitation. Defence counsel takes no issue with the ancillary sentencing orders sought by the Crown, and also joins the Crown in arguing that this sentence must be reduced by the appropriate credit to the accused for his pre-sentence custody.

5For the reasons that follow, I am not able to accept the positions advanced by either the Crown or the defence in relation to the duration of the global sentence that should be imposed on the accused. Instead, in my view, the appropriate sentence in this case is a five-year penitentiary sentence. In my view, that middle-ground, between the two positions advanced by the respective parties, best reflects all of the relevant and applicable sentencing principles. That sentence will, as the parties jointly suggest, be reduced by the credit that must properly be accorded the accused for his pre-sentence custody. The accused will also be subject to the ancillary sentencing orders jointly suggested by the parties.

B. The Facts of the Offences

6The victim in this case is 29-year-old Justin McClelland. While his version of the key events was contested at trial, the jury, by their verdict, clearly accepted his evidence, and rejected the alternative version of the events suggested by the accused in his evidence. As I have indicated, essentially, Mr. McClelland testified that, on November 27, 2017, he met with the accused as part of a plan to sell him a quantity of MDMA (i.e. Methyl​enedioxy​methamphetamine – more commonly known as “ecstasy”), but the accused took the drugs without paying for them, shot him in the left forearm with his loaded handgun in order to facilitate the robbery, and then fled from the scene on foot.

7Mr. McClelland first met the accused sometime in July of 2017. After being introduced to each other, the accused contacted Mr. McClelland, either by phone or text message, looking to purchase MDMA. Thereafter, they met together two or three times, in the late summer and fall of 2017, before their final meeting on November 27, 2017. The accused only communicated with Mr. McClelland when he needed to purchase MDMA. They did not otherwise communicate with each other. The first couple of times Mr. McClelland met the accused, Mr. Kane purchased a relatively small quantity of MDMA from him (approximately one ounce or one-half ounce). They used, essentially, the same procedure to complete their drug transaction on each occasion.

8Basically, the accused would contact Mr. McClelland either by text message or phone call, and the accused would meet him at a gas station near the accused’s residence. The accused knew what kind of vehicle Mr. McClelland would be driving and, when he arrived at the gas station, on foot, the accused would get into the passenger side of the vehicle. The accused then directed Mr. McClelland to drive to a nearby location, on a small side-street, so they could complete their drug transaction. Mr. McClelland would then show the accused the drugs, and the accused would give him the money, completing their transaction. Mr. McClelland would then drive the accused back to the gas station and let him out of the vehicle. In each of these transactions, the accused paid approximately $600 for one ounce of MDMA.

9With respect to their final meeting on November 27, 2017, Mr. McClelland testified that, this time, the accused contacted him, a few days before, and asked him for eight ounces of MDMA, explaining that he was buying this significantly larger quantity of the drug “for his neighbor.” While Mr. McLelland was skeptical about meeting the accused, who he did not know well, for such a large quantity of MDMA, he ultimately agreed to do so. After he contacted his own drug supplier, Mr. McClelland confirmed the deal with the accused and they agreed on the price of $3,400 for the eight ounces. During this conversation, however, the accused asked for an additional ounce of MDMA for himself, and Mr. McClelland agreed to provide him the additional ounce for only another $200. Accordingly, their finalized deal this time was for nine ounces of MDMA for a total of $3,600.

10They agreed to meet at the same gas station at a designated time in order to complete their transaction. Mr. McClelland was pumping gas into his vehicle when the accused arrived on foot. The accused was wearing a sweater and a scarf around “half of his face.” Mr. McClelland thought this “looked suspicious.” After a brief “what’s up” greeting, the accused quickly got into the front passenger seat of the vehicle. Mr. McClelland testified that he also thought this was “suspicious.” After Mr. McClelland paid for his gas, he returned to the driver’s seat of his vehicle.

11Mr. McClelland then drove them to their “normal spot” on the nearby side-street. On the way, the accused pulled out and “waved” or “fanned-out” his money for Mr. McClelland to see, and then put it back in his pocket. The accused may also have said words to the effect of: “Don’t worry, I’ve got the money.” Mr. McClelland agreed that the quantity of money being waved looked like it could have been $3,600. After the vehicle was parked, and its engine turned off, Mr. McClelland produced a “pretty big” plastic bag containing the nine ounces of MDMA, gave the accused the bag, and turned on the overhead interior light of the vehicle so the accused could better see the drugs.

12As Mr. McClelland testified, the accused put the plastic bag on his lap and began to look through the drugs, pulling out some of the bigger chunks of MDMA that may have themselves weighed about an ounce each. Mr. McClelland thought that there was likely about six ounces of MDMA in “chunks” and another three ounces in powder. Mr. McClelland became somewhat anxious at this point as this was not a “normal” part of their transaction. At one point, the accused talked about “weighing” the drug, which was not practical at that point in time, and he started putting the chunks of the MDMA in his pocket with his left hand.

13Shortly thereafter, the accused started to reach towards the door handle of the vehicle and the lock button on the passenger side. Mr. McClelland thought the accused was “trying to run away with the drugs.” Mr. McClelland reached across with his right hand and grabbed the accused by his clothes in the area of his chest. His left hand remained on the steering wheel. At that point, he heard a “Pop” and he saw a small flash or flame and a cloud of smoke. The accused then immediately opened the passenger door of the vehicle, and “blasted” out of the vehicle, with all the drugs and the money, and ran away.

14As Mr. McClelland had felt the sting in his left forearm, he checked down his jacket and shirt sleeve, and when he pulled back his hand, it was covered in blood. He realized that he had been shot. In fact, the bullet passed right through his left forearm. Mr. McClelland quickly drove his vehicle to the home of his in-laws, and there discovered the “straight-through” bullet injury to his forearm, and the blood “everywhere.”

15Ambulance attendants who had been summoned cleaned and treated the victim’s wounds and took him to the hospital. In surgery the following day, the tendon in his left forearm was re-attached, and his left arm was placed in a half-cast. Over the following two weeks, Mr. McLelland saw a nurse on a daily basis, and she cleaned and redressed the wound and replaced the cast. Following this two-week period, Mr. McClelland saw the surgeon again, because x-rays had shown that the bullet nicked the bone in Mr. McClelland’s left arm. At this point, after the stitches were removed, Mr. McClelland was put in a full-cast for the next four weeks. At the end of that time, x-rays showed that the bone was healing, so the cast was removed, and Mr. McClelland went to a physiotherapist for a further two months for rehabilitation.

16Mr. McClelland testified that being shot on November 27, 2017 was a “life-altering event” and a “wake-up call” for him. Since that date, he has “never touched a drug” and “never dealt a drug,” and is now lucky to just be leading a “normal life.” As to the long-term impact of the crimes, Mr. McClelland indicated that he still gets “very emotional” when thinking about the offences, and he sometimes suffers from “flashbacks” or nightmares about the incident. He also continues to suffer a slight loss of sensation in his left hand, and a periodic “tingling” in his left hand.

17As to the potential value of the drugs stolen, Mr. McClelland testified that, if the nine ounces of MDMA that he was going to sell to the accused for $3,600, was cut down and sold in single-dose capsules for $10 each, it would be worth a total in excess of $10,000.

C. The Personal Circumstances of the Accused

18The accused is now nearly 21 years of age. At the time of the commission of the offences, he was not quite 19 years old. He is single with no dependents.

19The accused has a Youth Court record for the offences of theft under $5,000, mischief under $5,000, and failing to attend court.

20The accused also has an adult criminal record that shows that on May 9, 2019 he was convicted of: (1) possession of a loaded prohibited or restricted firearm; (2) possession of marihuana for the purpose of trafficking; and (3) failing to comply with a recognizance. For these offences he received a sentence of 122 days imprisonment (after having been credited with having served the equivalent of 791 days). This was, accordingly, an effective total sentence of 2½ years imprisonment. He was also given a mandatory weapons prohibition order. These offences were committed by the accused on November 29, 2017, just two days after the three offences now before the court. The parties are agreed that the accused finished serving his sentence in relation to those offences on September 7, 2019.

21The Pre-Sentence Report in this case helpfully outlines most of the relevant personal circumstances concerning the accused, which includes all of the following:

• The accused had a difficult upbringing, in that he was fatherless from an early age, and his mother struggled with alcohol addiction. When he was nine-years old he was placed in foster care in a group home by a child protection agency, where he lived for a year. He then lived with his aunt for the next three or four years. He started living with his mother again when he was 13 years old.

• The time the accused spent in the group home was uneventful, but the accused enjoyed the time he spent with his aunt, indicating that she was a “great person” who taught him “discipline” and helped him “in any way she could.” During this time, however, he “began to misbehave,” started to “get into trouble at school” acting as the “class clown,” doing other “stupid things” and getting into fights. According to his aunt, while the accused was going through “his own issues” he also made “some significant improvement” during this time. She views the accused as a “good kid with a big heart” who can “do well” if surrounded by the “right support.”

• Since returning to the care of his mother, the accused has developed a very close relationship with her, and things became “really normal” over the next seven years of his life. The accused is welcome to live with her again once he is released from custody at the conclusion of his sentence. His mother describes her son as a “kind, respectful and loving person.”

• The accused has apparently been involved in a relatively long-term relationship with his girlfriend, who he met in high school, but she could not be located or contacted.

• The accused has worked productively for only brief periods of time as a landscaper and in demolition. The accused has candidly admitted that his main source of income has been from drug trafficking. He started selling marihuana in high school when he was but 14 years old, and this became a profitable source of income for him, sometimes earning $500 a week.

• The accused admitted that, in his high school years and beyond, alcohol and drugs (marihuana) were a consistent problem for him, in that he consumed both, in significant quantities, on a near-daily basis. This substance abuse problem continued until his arrest for the current offences.

• While the accused was expelled from high school in grade 11, earlier this year, while in custody, he successfully completed the General Educational Development program, through the Amadeusz program at the Toronto East Detention Centre, and was granted his High School Equivalency Certificate. The accused was an engaged and hard-working participant in this program and regularly attended and completed his assigned study work.

• The accused also participated, while in custody, in a ten-week “communications” course that is part of the Corrections Literacy Initiative offered by Centennial College, and he has been invited to continue his learning in this regard when released from custody. The accused was an “excellent student” in this program and was hard-working, dedicated and enthusiastic about his studies.

• While in custody, the accused also successfully completed training programs in anger management, anti-criminal thinking, substance abuse, life skills, and stress management.

• As to his future plans, the accused has indicated that he wants to acquire a skilled trade, perhaps as an electrician, or become a real estate agent.

22While the accused pled “not guilty” to the indictment and denied the commission of these offences in his testimony at his jury trial, he now accepts responsibility for these offences, and has expressed his regret over their commission. The accused explained that his motivation for the offences was “immediate financial gain” and that this “outweighed any real concern as to the consequences of his behavior.” The accused has also acknowledged that he voluntarily involved himself in the “criminal lifestyle” that has brought him to this point. The accused says that he is now committed to making “meaningful change in his life,” leading to a “pro-social lifestyle.” The author of the Pre-Sentence Report, who reported these comments by the accused, warned that if the accused “fails to follow through with his stated intentions of self-improvement, he may continue to pose the risk of further recidivism.”

D. The Governing General Sentencing Principles

23According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is “protect society” and to contribute 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, namely: (a) to denounce unlawful conduct and the harm done to victims or the community; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

24According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

25Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (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 their 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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

26Our courts have repeatedly noted that loaded handguns remain a prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as robbery and drug-trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. This case serves as yet another example of the kind of serious consequences that can flow from the toxic mix of drug-trafficking and loaded firearms, especially when robbery for financial gain is added into the mix. Such offences must be met with lengthy custodial sentences that proportionally reflect the sheer gravity of the crimes, and which appropriately stress the need to denounce and deter such criminal activity. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their possession and use of loaded handguns will invariably be accompanied by serious penal consequences. See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont.C.A.), at paras. 77-78; R. v. Brown, 2010 ONCA 745, at para. 14; R. v. Morris, 2011 ONSC 5206, at paras. 10, 58, affirmed, 2013 ONCA 223; R. v. Chambers, 2012 ONSC 817, at paras. 15-17, affirmed, 2013 ONCA 680; R. v. Mark, 2018 ONSC 447, at paras. 23-30.

E. The Global Sentence That Should be Imposed upon the Accused

27The accused has been convicted of three criminal offences. At its essence, however, the gravamen of accused’s criminal conduct is his planned armed robbery of the victim, and the accused’s use of his loaded handgun to intentionally shoot the victim as soon as there was any physical resistance to the accused’s theft of the victim’s MDMA. This was, to say the least, a course of very serious criminal conduct on the part of the accused. The victim suffered a substantial injury to his left forearm, when the bullet from the accused’s handgun passed right through the victim’s forearm, entering on one side and exiting out the other. Thankfully, Mr. McClelland was not injured even more seriously. The intentional discharge of a handgun inside a motor vehicle during a robbery obviously has the potential to cause grievous bodily harm and even death to those being shot from such close range inside the vehicle. Such offences must, therefore, be met with penitentiary sentences that are proportional to the sheer gravity and consequences of the crimes, and which appropriately stress the need to denounce and deter such crimes and adequately protect the public.

28It must also be recalled that the mandatory minimum sentence in this case, pursuant to s. 344(1)(a.1) of the Criminal Code, is four years imprisonment given that a firearm was “used” in the commission of an offence. Of course, in this case the firearm was not simply brandished or otherwise employed in some menacing way in order to secure the victim’s “cooperation” in relation to the theft of the MDMA – in this case the accused intentionally discharged his loaded firearm at the victim, shooting him in his left forearm. This resulted in the commission of the separate offence of aggravated assault. In my view, this calls for the imposition of a sentence significantly greater than the mandatory minimum for the offence of using a firearm during a robbery.

29This conclusion is confirmed by consideration of the various aggravating and mitigating circumstances in this case. On the one hand, the aggravating circumstances include the following: (1) this was a planned drug-robbery by the accused, motivated entirely by the desire for personal financial gain; (2) the robbery involved the intentional discharge of a loaded firearm to overcome the physical resistance of the victim; (3) the victim suffered a serious injury when the bullet from the accused’s loaded firearm passed completely through his left forearm; and (4) at the time of the offences, the accused was on a recognizance preventing him from the possession of illegal drugs, and yet he was still actively engaged in the business of drug trafficking.

30On the other hand, the mitigating circumstances include the following: (1) the accused is a youthful offender, not yet 21 years of age, who still enjoys the support of his mother and his aunt; (2) the most serious entries on the accused’s criminal record relate to offences committed in the few days after the commission of the present offences; (3) the Pre-Sentence Report is relatively positive about the accused’s prospects for rehabilitation, especially given his troubled family history; (4) the accused has taken significant steps toward his rehabilitation while in custody, and professes to be set upon a more pro-social lifestyle; and (5) after the jury’s verdict, the accused has expressed his remorse and regret about the commission of the crimes.

31In my view, having regard to all of the circumstances of this case, the appropriate global sentence for the accused for his offences, before the appropriate credit is given for the time the accused has spent in his pre-sentence custody, is five years imprisonment. This sentence is, in my view, proportional to the objective gravity of the crimes committed by the accused and their impact on the victim, provides the necessary measure of deterrence and denunciation, and properly protects the public. At the same time, a sentence of five years imprisonment fairly recognizes the fact that the accused is a still youthful offender and seems to have begun making efforts toward rehabilitation and a more law-abiding lifestyle.

32The imposition of a five-year term of imprisonment also takes into account the overall totality of the sentence being served by the accused. In this regard it is important to appreciate that the accused has just finished serving, some 83 days ago, an effective sentence of 2½ years. Accordingly, by the time the young accused is finally released from custody after serving the sentence for the present offences, he will have served an effective total sentence of 7½ years imprisonment. The appellate court authorities caution against the imposition of an effective combined sentence that is “crushing” to a young offender. See R. v. Claros, 2019 ONCA 626, at paras. 39-45, 76; R. v. Johnson, 2012 ONCA 339, at paras. 18-25. The totality of this particular sentence should not be perceived as “crushing” to the accused. Indeed, but for this concern over the totality of the combined sentences on the accused, the sentence imposed for the present offences might well have been longer.

33In my view, in all of the circumstances of this case, the imposition of a global sentence of five years imprisonment fairly and appropriately considers all of the relevant sentencing goals and principles and is not at all inconsistent with the range of sentence provided by the governing jurisprudence in this area. See R. v. L.(H.), 2013 ONSC 7050, at paras. 53-57; R. v. Dawkins, 2013 ONSC 4949, at paras. 57-63, affirmed, 2015 ONCA 202; R. v. Frost, [2006] O.J. No. 5792, affirmed, [2009] O.J. No. 3743 (C.A.); R. v. Reis, 2017 ONSC 1961, at paras. 14, 17-22, 27-35.

F. The Credit for Pre-Sentence Custody

34The parties are agreed that the accused began spending time in pre-sentence custody in relation to the offences now before the court on September 8, 2019. Accordingly, the accused has now spent a total of 83 days in custody, for which he should be given a credit, pursuant to the combination of s. 719(3.1) of the Criminal Code and the Supreme Court of Canada decision in R. v. Summers, 2014 SCC 26, of “one and one-half days for each day spent in custody.” By my calculations, this results in a credit of approximately 125 days for the accused.

35The sentence of five years imprisonment that would otherwise have been imposed upon the accused must be fairly reduced by this credit. Accordingly, the accused will now be sentenced to a term of imprisonment of four years, seven months and three weeks.

G. Ancillary Sentencing Orders

36In addition, in my view, and in accordance with the joint position advanced by the parties, all of the following ancillary sentencing orders are appropriate in the circumstances of this case.

37First, as the accused has been convicted of “primary designated offences” within the meaning of s. 487.04(a) of the Criminal Code, pursuant to s. 487.051(1) of the Code, I make an order, in Form 5.03, authorizing the taking of samples of bodily substances from the accused for purposes of forensic DNA analysis.

38Second, pursuant to ss. 109(1) and (3) of the Criminal Code, the accused is prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.

39Third, pursuant to s. 743.21 of the Criminal Code, the accused is prohibited from communicating, directly or indirectly, with the victim in this case, Justin McClelland, during the custodial portion of his sentence.

H. Conclusion

40In summary, the accused is now sentenced to a penitentiary term of imprisonment of four years, seven months and three weeks. That is the sentence imposed in relation to each of the first three counts of the indictment for which he has been convicted. These sentences shall be served concurrently.

41Given the credit that has been accorded the accused for his pre-sentence detention, this is effectively a five-year global term of imprisonment.

42The accused is also subject to all of the aforementioned ancillary sentencing orders.

Kenneth L. Campbell J.