Introduction

[1] Following a trial, I found Paul Weeden guilty of aggravated assault, possession of a loaded prohibited or restricted firearm and discharge a firearm at a person with intent.[^1] I also found him guilty of possession of marijuana for the purpose of trafficking and possession of proceeds of crime.

[2] These are my reasons for sentence.

Circumstances of the Offence

[3] On April 25, 2016, Mr. Weeden went to see a rap contest at a bar in downtown Toronto. His older brother, Llamall Weeden (Llamall), was competing.

[4] Shortly after midnight, Mr. Weeden, Llamall and a number of others left the club. Surveillance images show that a dispute then erupted between Llamall, Mr. Weeden and the men they were with, and another group of men.

[5] Mr. Weeden ran to his car and retrieved a gun. He returned quickly and brandished the gun at the other group. A short while later, he fired the gun towards the group. He did not hit anyone involved in the dispute. Rather, the bullet went through the car door of Abdisalam Ali, an Uber driver who was waiting nearby to pick up his fare. The bullet hit Mr. Ali in the shoulder.

[6] Mr. Weeden then ran back to his car, and drove the wrong way on a one way street, before driving quickly away from the scene.

[7] Police executed a search warrant at Mr. Weeden’s apartment on September 13, 2016. Inside his bedroom, the police found just over two kilograms of marijuana and a bundle of cash, totalling $1,980.

Impact on the Victim

[8] Mr. Ali did not provide a victim impact statement. He testified in front of me at the trial, however, and said that after he was shot, he was in the hospital for a number of hours. He had to return three days later for X-rays and then a short while later, had surgery. He had to return to the hospital one last time to have stitches removed. Physically, Mr. Ali seemed to be doing quite well. He testified that while he does still have a “bit” of pain, it is “not much”.

[9] Mr. Ali was not asked about the emotional impact of the incident when he testified. That said, in my view as a matter of common sense and human experience, it must have been a terrifying and traumatic incident for Mr. Ali. I am told that he has sold his car and moved, which supports a conclusion that the shooting had a profound impact on him.

Circumstances of the Offender

[10] Mr. Weeden was 23 years old at the time of the shooting and is now 26 years old. He is still relatively youthful.

[11] Mr. Weeden has had some difficulties in his life. His mother went to jail when he was only three years old. As a result, he and four of his siblings went to live with his grandmother. They lived in crowded and difficult conditions. Mr. Weeden moved back in with his mother when he was approximately eight years old.

[12] Before high school, Mr. Weeden had achieved academic success. However, he struggled academically in high school and left school part way through grade 11. Mr. Weeden now wants to upgrade his education; his goal is to complete high school and then college.

[13] Mr. Weeden has held a number of jobs. When he was 13, he had his own newspaper route. After grade 8, he got a summer job, through his mother, working in a Minute Maid factory stacking pallets. In grade 10 he started working at a No Frills grocery store. He held this job for two years. From the ages of 10 to 17, he also assisted his step-father, who had his own carpet cleaning business. He continued doing this work until his mother and step‑father separated when he was 17.

[14] Mr. Weeden grew up in what was characterized at trial as a high crime area and has witnessed much violence in his life. In 2011, his good friend was murdered, which had a significant adverse impact on Mr. Weeden.

[15] Mr. Weeden has one previous conviction for possession of marijuana for the purpose of trafficking, for which he received a sentence of one day on top of 60 days pre-sentence custody, plus a weapons prohibition order. The offence date stemmed back to September 2011.

[16] Mr. Weeden has been in custody since September 13, 2016, which totals 871 real days as of today’s date. During that time, Mr. Weeden was subjected to 221 total or partial lockdowns.

[17] Mr. Weeden took the opportunity at the sentencing hearing to apologize for his actions, and express his remorse for the pain that he has caused.

Position of the Parties

[18] The Crown argues that the appropriate sentence for the shooting and guns offences is in the range of 10 to 12 years. She argues that six months should be imposed both for the possession for the purpose and possession of proceeds offences (concurrent to each other, but consecutive to the counts flowing from the shooting).

[19] The defence counters that a fit and proportionate sentence is six to seven years for the shooting and gun offences. She further argues that a sentence of two months should be imposed both for the possession for the purpose offence and possession of proceeds counts (concurrent to each other, but consecutive to the other charges).

[20] Both sides submit that any sentence should be less the time served of 871 days at the enhanced rate of 1.5:1, for the equivalent of 1,307 days. As well, given the harsh jail conditions established in the materials and information provided by the defence, both sides agree that Mr. Weeden should be credited with a further credit for pre-sentence custody somewhere in the range of four and a half months.

Sentencing Principles and Objectives

[21] Before turning to my analysis regarding what I view as the appropriate sentence in this case, I propose to briefly address the relevant sentencing principles and objectives.

[22] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community and promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.

[23] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. As noted by the court of appeal in R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), at para. 87, sentencing is a very human process. The fixing of a fit sentence is the product of the combined effects of the circumstances of the offence with the unique attributes of the specific offender.

[24] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37, the principle of proportionality is intimately tied to the fundamental purpose of sentencing for two reasons:

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[25] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b), which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342, at para. 17, however, the parity principle is not to be applied in an absolute fashion; given the highly individualised sentencing process, sentences imposed for offences of the same type will not always be identical.

[26] The totality principle is addressed by s. 718.2(c). A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender: R. v. C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.

[27] The restraint principle is reflected in both ss. 718.2(d) and (e). As the court explained in Hamilton, at para. 95, the restraint principle is of paramount importance where incarceration is a potential disposition.

[28] Pursuant to s. 718.2(a) of the Criminal Code a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating Factors

[29] Mr. Weeden has a criminal record, which is aggravating. That said, when considering this factor, I take into consideration that he has only one previous conviction, which offence dates back to 2011.

[30] Mr. Weeden was out on bail on two separate releases at the time of the shooting. Further, Mr. Weeden was bound by a weapons prohibition order at the time of the shooting, which is highly aggravating.

[31] The gun has never been recovered, which means that there is an ongoing risk to public safety.

[32] While things happened quickly, Mr. Weeden had time to deliberate on his actions. He left the scene, he went to his car, he retrieved his gun, he returned to the scene, he brandished his gun, and then, he shot his gun towards the group.

[33] Mr. Weeden intentionally shot his gun towards a large group of people. It was sheer luck that he did not wind up killing anyone.

[34] Further, Mr. Weeden shot his gun in a public place in downtown Toronto, where there were many people out trying to enjoy the city, or, as in the case of Mr. Ali, trying to make a living. I have no doubt that the bystanders to this shooting must have found it to be a frightening experience.

Mitigating Factors

[35] Mr. Weeden is still relatively youthful; he was only 23 at the time of the shooting and is now 26.

[36] He has a close relationship with his mother and sister, Nicole. Both appeared in court to show their support. This will assist Mr. Weeden when he is released, as he attempts to move forward on a pro-social path.

[37] Mr. Weeden has shown in the past that he has the capacity to be a contributing member of society. He began to work starting at a young age and has held a number of different jobs.

[38] Mr. Weeden has turned his mind to steps that he can take to better himself. He wants to upgrade his schooling and ultimately attend college. He also wants to participate in counselling and/or courses to assist him with life skills. Mr. Weeden’s stated goals give hope that upon his release, he will be able to move forward from this incident in a positive manner.

[39] Mr. Weeden took the opportunity to address the court before his sentencing, and expressed remorse for his actions and for the pain that he caused Mr. Ali. Having had the opportunity to see and hear Mr. Weeden, I accept that his comments were genuine.

[40] I turn now to my analysis as to what would be a fit and proportionate sentence in this case.

Analysis

[41] Given the seriousness of gun violence offences such as this one, the range is between seven and 11 years: R. v. Bellissimo, 2009 ONCA 49, at para. 3; R. v. Jefferson, 2014 ONCA 434, at para. 14. Both sides provided me with cases in support of their respective positions. The cases confirm the range for these types of offences and illustrate that where an individual falls within the range will vary depending on the facts.

[42] It is clear that denunciation and deterrence must be the paramount sentencing considerations in this case: Bellissimo, at para. 5. It must be said in no uncertain terms that this type of criminal behaviour is abhorrent. People should be able to go out for an evening in downtown Toronto without worrying about getting killed by a stray bullet. But far too often, we hear about shots fired with little regard for the safety of the public; far too often, we hear the tragic stories of lives ruined by senseless gun violence. Courts must clearly denounce such violence with exemplary sentences. Further, the Courts must send a clear message to those who might seek to arm themselves with guns, and harm others, that they will face significant jail sentences if they do.

[43] On the other hand, rehabilitation is still a relevant sentencing objective in this case. Mr. Weeden is still relatively youthful and this will be his first penitentiary sentence. As noted by Rosenberg J.A. in R. v. Borde, 2003 4187 (ON CA), [2003] O.J. No. 354 (C.A.), at para. 36, for a youthful first offender, the length of a penitentiary sentence should rarely be determined solely by the objectives of denunciation and deterrence, and the court should strive to impose the shortest possible sentence to achieve the relevant objectives.

[44] Mr. Weeden has shown that he has the capacity to be pro-social. He has plans to better himself through education, which should be encouraged. Mr. Weeden is an articulate young man, and if he pursues his goals with discipline, I believe that he can do something positive with his life. I also accept that he is truly remorseful for his actions. This bodes well for his rehabilitative potential.

[45] In my view, considering the relevant sentencing principles and objectives, and balancing the aggravating and mitigating factors, a fit and proportionate global sentence in this matter is one of 10 years.

[46] The sentence should be structured as follows:

• 9 ½ years for the aggravated assault, discharge firearm at a person with intent and possession of a loaded prohibited or restricted firearm, concurrent;

• 6 months for the possession for the purpose of trafficking and the possession of proceeds, concurrent to each other, but consecutive to the above offences.

[47] Thus, the total global sentence for Mr. Weeden before taking into consideration pre‑sentence custody is one of 10 years. Mr. Weeden has spent 871 days in pre-sentence custody, which should be calculated on a 1.5:1 basis, for the equivalent of 1,307 days. That should be noted. In addition, I am crediting Mr. Weeden with a further 153 days as a result of harsh jail conditions, which should also be noted. Taking into consideration the total pre‑sentence credit of 1,460 days (four years), Mr. Weeden has a remaining sentence to serve of six years.

Ancillary Orders

[48] Aggravated assault and discharge firearm with intent are primary designated offences and pursuant to s. 487.051(1) of the Criminal Code a DNA order is mandatory. Further, possession of a loaded prohibited firearm is a secondary designated offence. Pursuant to s. 487.051(3)(b) of the Criminal Code, I am satisfied that it is in the best interests of justice to make an order authorizing the taking of samples from Mr. Weeden for the purpose of DNA testing. In arriving at this conclusion, I have considered the nature and circumstances surrounding the offences, the criminal record of Mr. Weeden, and the minimal impact that this order will have on Mr. Weeden’s privacy and security of the person.

[49] A weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Pursuant to s. 109, Mr. Weeden is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for life.

[50] Further, I order forfeiture of the $1,980 seized from Mr. Weeden’s apartment pursuant to s. 462.37 of the Criminal Code as proceeds of crime. Pursuant to s. 16 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, I also order forfeiture of the marijuana seized as offence‑related property. The clothing and footwear seized should be returned to Mr. Weeden pursuant to s. 490(9) of the Criminal Code.

Justice Heather McArthur

Released: January 31, 2019

R. v. Weeden, 2019 ONSC 773

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PAUL WEEDEN

REASONS FOR SENTENCE

Justice Heather McArthur

Released: January 31, 2019

[^1]: On January 24, 2019, the count of possession of a prohibited or restricted firearm contrary to s. 91(2) was stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. A count of simple possession of marijuana was stayed on September 6, 2018.

R. v. Weeden, 2019 ONSC 773

Case Summary

Introduction

Circumstances of the Offence

Impact on the Victim

Circumstances of the Offender

Position of the Parties

Sentencing Principles and Objectives

Aggravating Factors

Mitigating Factors

Analysis

Ancillary Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legislation 2