COURT FILE NO.: CR-17-700003080000

DATE: 20190207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JADEN SAUVE

Defendant

Monica Gharabaway, for the Crown

Jennifer Myers, for the Defendant

HEARD: February 7, 2019

Byrne j.

REASONS FOR SENTENCE

Introduction

[1] On July 19, 2018, Jaden Sauve was found guilty after trial of discharge firearm, aggravated assault, use firearm while committing an indictable offence, occupy a motor vehicle with knowledge a firearm was present, possession of a loaded firearm without authorization, possession of a firearm without a licence, carrying a concealed weapon, dangerous operation of a vehicle, failure to stop, and breach of probation.

[2] I found that on June 3, 2016, at approximately 11:30 p.m., Mr. Sauve along with another male made their way on foot through the back of a townhouse complex located at 70 Blake Street, Toronto. The pair arrived at the rear of townhouse 111 and fired 13 projectiles into the living room window of that residence and then fled the area. Inside that residence, asleep in the main-floor living room, was 10 year old Ahmed Arif. His mother, father and three siblings were asleep on the second floor. The entire family was awoken by the sound of what they believed was fireworks and glass breaking. Upon hearing the shots, Ahmed’s mother and father rushed to the main floor and found 10 year old Ahmed had been shot. Ahmed was rushed to The Hospital for Sick Children and treated for a through and through gunshot wound to his shoulder. The intended target of the shooting was the rapper known as STK Rax who lived or frequented the same townhouse complex.

[3] On June 10, 2016, police were searching for the small green vehicle that had been observed on video surveillance dropping off Mr. Sauve and the other shooter at the back of townhouse complex minutes before the shooting on June 3, 2016. At approximately 7:11p.m., police observed the small green vehicle being driven by Mr. Sauve. They were led into a high-speed vehicle pursuit in a residential neighborhood. Mr. Sauve successfully evaded the police on this day but was later arrested on June 22, 2016. The dangerous nature of the entire chase was captured on the police car dash camera.

Kienapple Issue

[4] Dealing first with the Kienapple issue.

[5] Defence takes the position that either Count 1, discharge of a firearm with intent, or Count 3, aggravated assault, should be judicially stayed pursuant to the rule against multiple convictions for the same crime.

[6] In a nutshell, the rule prevents an accused from being convicted of multiple offences arising out of the same transaction where the elements of the offences are substantially the same. It applies where there is both a legal and factual nexus between offences: R v. Rocheleau, 2013 ONCA 679, at para 24; R v. Ellis, 2013 ONSC 3092; R v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 SCR 729; R v. Prince, 1986 CanLII 40 (SCC), [1986] 2 SCR 480.

[7] Both these offences arise out of the same transaction, thereby satisfying the factual nexus component of the rule. In terms of the legal nexus, although they share some elements, in my view, the charges lack sufficient legal nexus to warrant an application of the rule in Kienapple. I am satisfied that convictions can be properly issued for both counts.

Positions of Crown and Defence

[8] Crown counsel takes the position that the overwhelming aggravating circumstances attached to this case justify a global sentence of 12.5 years imprisonment.

[9] Defence counsel takes the position that the appropriate sentence is 8 years.

[10] Both Crown and Defence have presented me with case law in support of their respective positions. I am thankful for the guidance and have reviewed those cases thoroughly.

Guiding Legal Principles

[11] Our criminal law is a system of values.

[12] In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society, contributing to the respect for the law and the maintenance of a just, peaceful and safe society by the imposition of a just sanction.

[13] Any sanction imposed by a court must take into account the objectives set out in section 718 of the Criminal Code, R.S.C., 1985, c. C-46. This includes denunciation, deterrence, rehabilitation, the separation of offenders from society where necessary to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[14] In cases like this one where an offender faces consecutive sentences for multiple offences, section 718.2 of the Criminal Code directs that due consideration be given to the principle of totality. As the sentencing judge, I must ensure that the cumulative sentence does not exceed the overall culpability of the offender: R v. Addow, 2014 ONSC 3225, at para 25; R v. Callaghan, 2017 ONSC 1853, at para 128; Clayton Ruby et al, Sentencing (Toronto: LexisNexis/Butterworths, 2004), at para 2.58.

[15] 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 accused. There is no “one size fits all” formula. Sentencing continues to be one of the most difficult tasks for judges.

[16] However, in cases of gun violence, the principles of general deterrence and denunciation must dominate. This is very much one of those cases.

[17] Ultimately, whatever sentence is imposed, it must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Offender

[18] Jaden Sauve was 20 years of age at the time of these offences. He is now 23 years old.

[19] Since 2010, Mr. Sauve has amassed approximately 15 convictions both as an adult and young offender. His criminal history includes an array of offences including: robbery, theft, fail to comply, break and enter, extortion, fail to attend, mischief, possession of stolen property and forcible entry.

[20] This is Mr. Sauve’s first conviction involving a firearm. His longest sentence as an adult was in 2015. On December 12, 2015, Mr. Sauve was convicted of robbery with violence and received a sentence of 8.5 months incarceration and 12 months’ probation. Mr. Sauve was still bound by that probation order when he committed these offences. Of equal importance is that he committed these offences less than two weeks after his release from custody on charges of forcible confinement and mischief.

[21] By way of background, Mr. Sauve was born and raised in Toronto. Mr. Sauve was raised by his mother until the age of two, when he was removed from his mother’s care by Children’s Aid Society (CAS) due to her addiction to a variety of drugs, including cocaine. Mr. Sauve was in the care of his biological father from the age of two to the age of 10, when his father became addicted to crack cocaine. At this point, young Mr. Sauve was placed in the care of CAS.

[22] From the age of 10 to 14, Mr. Sauve was placed in a CAS foster home. It is reported that the stability of this home allowed him, perhaps for the first time in his young life, to thrive. Unfortunately, at the age of 13 Mr. Sauve’s brother was tragically shot and killed in his presence. This traumatic incident seemed to trigger a downward spiral in Mr. Sauve’s life. At the age of 14, he transitioned into a group home and remained there throughout his teenage years. His youth was difficult. Mr. Sauve suffered from ADHD and other behavioral and emotional issues. Mr. Sauve eventually became a Crown Ward and began his descent into the criminal justice system.

[23] Mr. Sauve’s education experience was equally turbulent and unstable. To his credit, Mr. Sauve was able to complete grade 11 and is currently working towards his GED while incarcerated at the Toronto South Detention Centre.

[24] Mr. Sauve has never been employed due to the fact that he has been repeatedly incarcerated over the past nine years.

[25] Mr. Sauve has been incarcerated on these charges since his arrest in June 2016. Collectively, Mr. Sauve has 13 brothers and sisters, the majority of whom have been involved in the criminal justice system. Despite the fact that most of his siblings live in the Greater Toronto Area, none have visited Mr. Sauve during his incarceration on these charges. The one constant source of support in Mr. Sauve’s life is his 19 year old girlfriend Whitney Chamberlain. Ms. Chamberlain has known Mr. Sauve since she was 13 years old and they have been dating on and off for the past two and a half years. Theirs has clearly not been a traditional romantic relationship, given that the timing of their relationship appears to coincide directly with Mr. Sauve’s most recent incarceration. Be that as it may, Ms. Chamberlain has been present in court almost every day and I am sure this has been a great comfort to Mr. Sauve. He is lucky to have her in his life.

[26] Records indicate that in the past, Mr. Sauve has been consistently compliance challenged, rebuking authority at every turn. This is not surprising given his traumatic and unstable upbringing.

[27] Mr. Suave offers no insight or understanding about the current offences. He has demonstrated no acceptance of responsibility outside of indicating that he is sorry and understands how traumatic this incident would have been for the victims. Mr. Sauve is no stranger to trauma this in large measure accounts for his ability to empathize with the victim. My hope is that upon further reflection Mr. Sauve will gain the necessary insight and understanding to ensure that he does not land back here again.

Analysis

[28] There are a number of significant aggravating factors attached to this particular case. Of note is the serious and violent nature of the offences themselves. This was a planned and deliberate shooting. Thirteen shots were deliberately fired into a residential home with the intention of killing or injuring the occupant(s). I do not accept the defence submission that this was an impulsive act. The shooting was planned days in advance. The firearm and ammunition were obtained in advance and arrangements were made to have a vehicle drop Mr. Sauve and the other shooter off at the back of the townhouse complex. The firearm was concealed in a satchel while Mr. Sauve and the other shooter made their way on foot to what they believed was their target’s residence.

[29] The fact that this shooting happened in the victim’s home while he and his family were asleep adds significantly to the trauma suffered by this family. They were awoken to find their home turned into a war zone and their youngest child shot.

[30] Ten year old Ahmed suffered a through and through gunshot wound to his left shoulder. Ahmed spent several nights at the hospital and remained on pain medication for months after his release. The bone in his shoulder was fractured and the scar now serves as a constant reminder of that horrific night. Despite the months of physiotherapy, he still experiences pain and physical challenges which result in feelings of anger and frustration. There is no medication or quick fix for the emotional trauma this young boy and his family have suffered. His mother Nighat Arif prepared a victim impact statement and testified on behalf of her entire family. In it, Ms. Arif states that since this event on June 3, 2016, her family no longer feels safe in their home, where they have lived for the past 14 years. A home is a place where we should all feel safe and secure. A sanctuary that brings us comfort and relief in times of stress. That was taken away from the Arif family. They now live in fear inside and outside of their home. People no longer want to visit and they feel isolated from their community; paralyzed by an inability to trust driven by constant fear. What once was a place of celebration and comfort is no longer. Young Ahmed has suffered the most. Sleep, which once came easily, is now difficult. He does not want to sleep alone or even go to the bathroom alone. Behavioral issues have surfaced for him at school. It is difficult to fully comprehend the impact this shooting has had on this family. One thing is certain: their lives will never be the same. They have suffered incredible physical and emotional trauma on so many levels. In my view, this is a tragedy of epic proportion.

[31] Further aggravating is that Mr. Sauve and the other shooter shot blindly into this residence and then immediately fled the scene, demonstrating a complete disregard for the lives and safety of the occupants. This, in my view, was a cold and callous shooting.

[32] Mr. Sauve also engaged in a high speed chase in an attempt to escape responsibility, which in turn endangered lives of drivers and pedestrians. This is yet another serious aggravating factor attached to this case.

[33] Further aggravating is that this shooting took place in a densely populated residential neighborhood. It is remarkable that more people were not injured.

[34] In R. v. Lacasse, 2015 SCC 64, at paras 87-105, the Supreme Court of Canada instructs that trial judges are entitled to consider local conditions, including the frequency of a type of offence in a given region into account on sentence. The prevalence of firearms offences has, and continues to be, a serious concern for the citizens of our city. Offences like this only serve to reinforce that fear and undermine feeling safe in our communities. The fact that a firearm was used in this offence is a highly aggravating feature: R. v. Nur, 2015 SCC 15, at paras. 131-145.

[35] Further aggravating is the fact that the firearm that was used has yet to be recovered, increasing the possibility that it will be used in yet another offence.

[36] Just days after being released from custody, and while bound by a probation order, Mr. Sauve saw fit to arm himself with a firearm and commit these offences. In my view, this is a flagrant act of disregard for the justice system and a serious aggravating factor. Moreover, Mr. Sauve is no stranger to the criminal justice system. As already stated, he has a troubling and related criminal record. Albeit no prior involvement with firearms. There is, however, an obvious escalation in the seriousness of the offences committed by Mr. Sauve.

[37] As previously stated, a further consideration is the devastating impact this shooting has had on the individual victims, their families, friends and the community at large. Although the shooting itself lasted only seconds, the impact will last a lifetime on the victim, his family and the community at large.

[38] I can find very little in the way of mitigating factors apart from Mr. Sauve’s youth, which engages the principle of restraint. I am mindful that at 23 years of age, Mr. Sauve still has ample time to turn his life around, if he so chooses. Accordingly, the principle of rehabilitation play a role in Mr. Sauve’s sentencing, albeit a significantly diminished one given the serious and violent nature of the offences. I also take into consideration Mr. Sauve’s traumatic and turbulent upbringing which clearly set the trajectory of his life’s path. It is clear to me that the painful challenges of his young life have shaped the choices he has made and the lens through which he views the world. Over the many months that I have been attached to this matter I have had few direct interactions with Mr. Sauve. To his credit, I have always observed him to be attentive and respectful in my presence. When reading in his final statement to me I saw a glimpse of an intelligent and articulate young man, perhaps the thriving young person his foster mother saw a decade ago when Mr. Sauve was in her care. Mr. Suave has also expressed to me his desire to move his life forward in a positive direction. To that end and to his credit he has been participating in a variety of programs while incarcerated.

Credit for Pre-Trial Custody

[39] Mr. Sauve has been incarcerated since his arrest on June 22, 2016. From that date until today, Mr. Sauve has accumulated 961 days pre-trial custody. He will be given credit for those days on a 1.5:1 basis for a total credit of 1,442 days, or approximately 4 years.

[40] Mr. Sauve also asks that he be given credit for the 118 days that he has been subjected to partial or full lockdowns while incarcerated at the Toronto South Detention Center. This is often referred to as a Ducan credit based on the decision from the Ontario Court of Appeal endorsing a finding by a sentencing judge that conditions during a lockdown that have adversely affected an offender may entitle them to enhanced credit. In this case, there is no evidence before me that Mr. Sauve was adversely affected by the lockdowns. Accordingly, no basis for credit has been established: R v. Duncan, 2016 ONCA 754, at para 6-7.

Summary

[41] After consideration of the law, the submissions of counsel, and the unique circumstances that are attached to this case, I find that a global sentence of 12.5 years is appropriate. Mr. Sauve will be given enhanced credit of 4 years of pre-trial custody leaving him with 8.5 years to serve.

[42] Mr. Sauve’s sentence will be as follows:

• Counts 1 - Discharge Firearm: 11 years;

• Count 2 - Use Firearm While Committing an Indictable Offence: 1 year consecutive;

• Count 3 - Aggravated Assault: 11 years concurrent;

• Count 5 - Occupy Motor Vehicle Know Firearm Present: 3 years concurrent;

• Count 6 - Possession of a Loaded Firearm: 4 years concurrent;

• Count 7 - Unauthorized Possession Firearm Knowing it is Authorized: 4 years concurrent;

• Count 8 - Carry Concealed Weapon: 6 months concurrent;

• Count 9 - Dangerous Operation of Motor Vehicle: 6 months consecutive;

• Count 10 - Fail to Stop: 6 months concurrent;

• Count 13 - Fail to Comply Probation: 6 months concurrent.

[43] In addition, there will be the following ancillary orders:

• An order pursuant to s. 109 of the Criminal Code preventing Mr. Sauve from possessing any firearm, weapon or ammunition as defined by the Criminal Code for life;

• An order, pursuant to s. 485.051 of the Criminal Code, that Mr. Sauve provide a sample of his DNA for analysis;

• A three year driving prohibition;

• Pursuant to section 743.21(1) of the Criminal Code, while in custody, Mr. Sauve is not to have any communication directly or indirectly with the following individuals: Mohammad Arif, Nigat Arif, Hazeefa Arif, Iqra Arif, Ahmed Arif, Hinna Arif, Aziz Rehman, Haseeb Arif, Darhyn Martin, Jeremy Morgan and John Brown Fetterly.

[44] That completes my sentence.

Byrne J.

Released: February 7, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JADEN SAUVE

Defendant

REASONS FOR sentence

Byrne J.

Released: February 7, 2019