Court File and Parties

Court File No.: CR-19-9597 Date: 2020-06-12 Ontario Superior Court of Justice

Between: Her Majesty the Queen Brian White, for the Crown

- and -

Joshua Hannaford Tyler Smith, for Joshua Hannaford

Heard: June 11, 2020 – Zoom Hearing during Covid-19 Pandemic (Kitchener File)

Reasons for Judgment

T. SKARICA J.

[1] The accused was convicted of five criminal offences involving the possession of a stolen van, possession of stolen firearms and ammunition and driving offences relating to a police chase after the accused stole the van and firearms from a rural Hamilton residence. The accused was shot in the right thigh just prior to his arrest. The injury has not properly healed. Recent photos show an unhealed wound with significant muscle tissue loss and currently the accused has a significant disability.

Issues

[2] Issue #1 – Should the accused be given extra consideration in sentence due to the current COVID-19 pandemic?

[3] Issue #2 – What is the appropriate sentence given the accused committed serious crimes but also suffered a serious injury during the arrest process?

Facts

Summary of the Trial Evidence

[4] A detailed summary of the trial evidence appears at paras. 9-480 in the Reasons for Judgment reported as R. v. Hannaford, 2020 ONSC 1388. The analysis of the trial evidence is outlined at paras. 481-518 of the Hannaford decision.

[5] The facts of the trial can be briefly summarized as follows:

1. The accused entered the home of Rocco Fazzari on March 31, 2018 at 1633 Westover Road in Hamilton and stole two rifles, ammunition and keys to a Dodge Caravan. Within the stolen Dodge van was a wallet with $3,000 cash in it.
2. The van had a GPS in it and the Hamilton police informed the Waterloo Police Service that the van was in Cambridge.
3. The stolen van was ultimately located at a dead-end road at Old Mill Road in Cambridge.
4. The Waterloo police set up a road block at Old Mill Road.
5. The accused drove up to the roadblock and saw many police with their firearms drawn.
6. The accused reversed his position and drove on to a farmer’s field with the police in pursuit.
7. The accused’s stolen van got stuck in the mud and then the accused fled on foot into a bush area just south of Highway 401.
8. The pursuing police searched the abandoned stolen van and discovered two firearms and open ammunition. The Waterloo police had previously been informed that there was a possibility of a third stolen firearm. This information along with the discovery of open ammunition in the van led the police involved to believe, on reasonable grounds, that the accused was armed with a loaded, fully operational firearm.
9. Sgt. Dorling, an experienced and senior officer with the Waterloo Police Service, saw the accused emerge from the bush area south of Highway 401. Sgt. Dorling demanded that the accused show his hands. The accused refused to comply with this demand.
10. Sgt. Dorling saw a black object in the accused’s hand. Sgt. Dorling, believed, reasonably, that the accused was holding a loaded functional firearm.
11. While the accused was holding the black object, the accused turned to face Sgt. Dorling and the accused told Sgt. Dorling, “Want to die?”
12. Sgt. Dorling concluded, reasonably in the circumstances, that the accused was about to shoot at Sgt. Dorling and accordingly, Sgt. Dorling believed that his life was in jeopardy.
13. Sgt. Dorling, in self defence, fired six shots at the accused with the final shot striking the accused in the upper right thigh.
14. Near to where the accused was arrested, after being shot, a folding knife with a black handle was discovered. This was the item the accused was holding prior to being shot.
15. The accused has had five surgeries from December 2018 to December 2019. The surgeries have left him disabled and his leg is seriously scarred. Decaying muscle tissue has had to be removed from the accused’s leg and this has left the accused with a wound that has still not fully healed, some two years after being shot.
16. The accused advises that a sixth surgery will be necessary. This future surgery will involve applying skin grafts to the wound to alleviate the extensive scarring to the accused’s leg.
17. At trial, the accused needed a wheel chair to move about. It is obvious that the accused’s injury has left him, at the current time, with a significant disability.
18. I indicated at para. 538 of my trial judgment that I would take the accused’s injuries into account when sentencing him.

Circumstances of the Offences

[6] The accused stole a van. He also stole firearms and ammunition from a dwelling house in a rural area in Flamborough. These thefts ultimately led to a police chase where numerous officers believed that they were involved in a dangerous situation pursuing an armed fugitive who refused all opportunities to voluntarily surrender.

[7] After the accused was shot, Highway 401 was shut down during rush hour so that an air ambulance, an ORNGE helicopter, could escort the accused to a nearby hospital.

[8] The accused received serious injuries that, despite numerous surgeries, have not healed properly. In the result, the accused is disabled and requires further surgeries.

Circumstances of the Offender

[9] In addition to his injuries, which have left the accused disabled, the accused has been in custody since his arrest on March 31, 2018.

[10] The accused was on probation for convictions for similar offences at the time of the offences committed on March 31, 2018.

[11] The accused has a very lengthy criminal record for dishonesty and violation of court orders. There are 54 convictions on the criminal record. Twenty-seven of the convictions relate to property related crimes of dishonesty and 18 convictions relate to breach of court orders.

[12] The accused, after considering sentences for other offences that he has pled guilty to over the past two years, has served approximately one year of pre-trial custody. Accounting for the usual 1.5 to 1 Summers credit, (see R. v. Summers, 2014 SCC 26), the accused is entitled to a total pre-trial custody credit of approximately 18 months or 1.5 years.

[13] Currently, the accused finds himself in custody with a serious unresolved injury during the COVID-19 pandemic. Photos taken proximate to the trial confirm that the accused has suffered from significant tissue loss and scarring from the gunshot wound.

[14] Medical reports, filed by the defence prior to this sentence hearing, confirm that the accused has had multiple operations on his thigh. The operations have attempted to remove small remnants of bullet fragments and rotting necrotic tissue. However, he continues to have a chronic draining wound that has not healed. In addition, the accused has developed urinary retention problems due to his medications, constipation and decreased mobility.

[15] The pre-sentence report (PSR) reveals that the accused has had a very chaotic upbringing as a child. The accused has never met his father. The accused’s stepfather was abusive.

[16] At page 11 of the PSR, the obvious conclusion to be drawn is that the accused’s childhood was riddled with neglect, domestic violence and sexual abuse. The accused seems to have responded to this background by resorting to drug use and crime.

[17] The accused does not have a stable employment history. He has not completed Grade 12. He does not have any close friends.

[18] Given this background, it is not surprising that the accused has accumulated a lengthy criminal record.

[19] The accused has five children with his common law spouse, Shawna Burlingham. She has had drug problems as well. The children have been apprehended by the Children’s Aid Society. The accused states that he has a good relationship with his oldest daughter (11) and his youngest daughter (3) when not in custody. He has only casual contact with his other three children.

[20] Attached to the PSR is a letter of reference, dated January 22, 2020 from Rachel Cziera from the Community Transformation Foundation (CTF) who has counselled the accused. It appears that the accused is making strides to deal with his drug and psychological problems. Accordingly, this positive letter provides a glimmer of hope for the accused’s future rehabilitation.

[21] The Gladue Report (GR) confirms many aspects of the PSR with several more specific details.

[22] For example, the accused’s mother had a gambling problem and would leave the accused with his sister. The accused’s older sister, Melissa, confirms abusive behaviour in the home. Melissa indicates, regarding her mother, “She would hit us (with her hands and objects) and would lock the children in their rooms”.

[23] Regarding schooling, the mother would see the children enter the front door of the school and the children would then walk out the back door.

[24] Not knowing who his biological father was, affected the accused’s ability to trust others. The accused was not able to develop his identity as a Haudenosaunee person. He has no knowledge of Haudenosaunee culture, traditions or language.

[25] The accused indicates he felt bad for what he did regarding the crimes committed on March 31, 2018. The accused is 32 years old. He has been working in the jail in the kitchen and laundry rooms.

[26] Three of the accused’s children were made Crown wards in 2015. The accused mourns losing his children.

[27] The accused’s drug use began when he was just 11 years old and progressed into adulthood.

[28] Given the absolute chaos in the way the accused was brought up, he was given virtually no chance to achieve any type of success in adulthood.

[29] Regarding after care, the GR recommends that the accused connect with Gladue caseworker Bryanne Drysdale in order that Ms. Drysdale can assist the accused in succeeding with his goals.

Circumstances of the Complainant

[30] Rocco Fazzari had his home broken into. Firearms, ammunition and his company van were stolen. $3,000 was stolen from his wallet. Only $2,000 was returned to Mr. Fazzari.

Circumstances of the Offence

[31] The accused, by stealing a van and firearms/ammunition and then subsequently fleeing from the police during a police chase, placed the police, the community and himself at serious risk of harm. Ultimately the accused was shot in the right leg and received serious injuries, which over two years later, he has not fully recovered from.

Position of the Crown and Defence

[32] The Crown seeks a further period of incarceration of 2-3 years less pre-sentence custody calculated on an enhanced basis.

[33] The accused seeks a suspended sentence and probation considering his lengthy pre-trial custody credit and serious ongoing medical problems as outlined.

Mitigating and Aggravating Factors

[34] Section 718.2 of the Criminal Code requires a court to consider both mitigating and aggravating factors when considering an appropriate sentence.

Mitigating Circumstances

[35] Mitigating circumstances include:

1. The accused has suffered a serious gunshot wound to his right leg, which has not fully healed and has left the accused with a significant disability.
2. The accused has been in custody for over two years since the offences were committed and has served approximately one year of pre-trial custody.
3. The accused has endured a horrific childhood with basically no nurturing input from a caring adult.

Aggravating Circumstances

[36] Aggravating factors include:

1. As previously outlined, the accused has a lengthy and serious criminal record.
2. The accused committed the current offences while on probation for numerous convictions, similar to the offences before this sentencing court.
3. The complainant has lost $1,000 for which there is no realistic hope of restitution. Further, the complainant had to suffer from the trauma of having his home broken into and having his company van/money/firearms/ammunition stolen.
4. The accused by stealing firearms and ammunition and engaging in a subsequent police chase, created a situation that endangered police officers, the community and ultimately himself.
5. In order to provide the quickest medical assistance possible, Highway 401 had to be shut down during rush hour to enable the accused to be transported to hospital by an air ambulance.

Law

Issue #1 – Consideration of COVID-19 Pandemic

[37] In imposing sentence, the court can recognize and consider COVID-19 implications – see R. v. McConnell, 2020 ONCJ 177 at para. 34, R. v. Kandhai, 2020 ONSC 1611 at para. 6, R. v. Hearns, 2020 ONSC 2365 at paras. 2, 20.

[38] However, the COVID-19 pandemic will not necessarily reduce a sentence that is already at the low end of the range – see R. v. Morgan, 2020 ONCA 279 at paras. 11, 12.

[39] In a bail hearing/bail review context, I held in R. v. Baidwan, 2020 ONSC 2349, at para. 161, that when assessing risk to an accused in custody during the COVID-19 pandemic, a court should consider the following factors:

1. Recent reliable data regarding the general risk, to the Canadian/Ontario/local population, of being infected by COVID-19 and related risk of serious illness/death.
2. The specific risk of an accused due to his/her age and underlying medical conditions.
3. The specific risk of an accused in a particular institution.
4. Any medical evidence particular to an accused’s physical and/or mental health.
5. S. 515(10)(b) of the Criminal Code (the secondary ground) requires a justice to consider whether detention is necessary for the protection or safety of the public. During this pandemic, an individual is required to adhere to social distancing and stay at home rules and/or perhaps any rules implemented under quarantine legislation and rules. An accused’s personal history regarding complying with previous court orders is particularly relevant in assessing whether the accused would likely adhere to social distancing and stay at home rules. An accused who violates social distancing rules and stay at home rules would not be any safer at large than in an institution where risk is being managed adequately.

[40] Given that the same types of evidence are admissible at sentence hearings as are at bail/bail review hearings, i.e. credible direct evidence, trustworthy hearsay, judicial notice principles, I suggest that the Baidwan factors in assessing risk to an accused in custody are also applicable at sentence hearings.

Application of Law to Facts

Issue #1 – Consideration of Baidwan Factors on Sentencing of Accused – Risk While in Custody During COVID-19 Epidemic

[41] Pursuant to the Baidwan factors outlined above, I make the following findings:

1. General risk to Ontario population having regard to most recent data – The most recent Public Health Ontario data regarding infection and death rates of COVID-19 in Ontario appears in “Epidemiological Summary COVID-19 in Ontario: January 15, 2020 to June 9, 2020 (I will refer to it as “summary”). The summary indicates that there have been zero deaths from COVID-19 in the 19 and under age group. There have been 11 deaths in the 20-39 age group. The likelihood of a person under 40 dying from COVID-19, if infected, is reported at 0.1 percent. Death rates for people over 60 years of age rise dramatically. 96 percent of the deaths from COVID-19 in Ontario come from the over 60 age group with the bulk of those deaths coming from the over 80 age group. Of 2,475 cumulative COVID-19 deaths in Ontario, 1,719 of the deaths are from the 80 and over age group.
2. Specific risks to accused – The accused is 32 years old. According to current data, there are 11 people in Ontario, who are in the accused’s age range, who have died after being infected by the virus. Even if infected, according to the data, the accused’s chances of death are approximate 0.1 percent.
3. Specific risks in institution – The accused is currently being housed in Maplehurst. There is no evidence before me of cases of inmates at Maplehurst being infected with COVID-19.
4. Medical Evidence – The accused has presented no medical evidence regarding health/mental conditions that would make him more susceptible from an infection from the virus. The impact of the virus in combination with the accused’s ongoing struggle with his gunshot wound are unknown.
5. Violation of court orders – The accused has no regard for court orders. In considering COVID-19 as a factor influencing sentence, I am skeptical of the accused’s ability to adhere to public recommendations regarding physical distancing and stay at home rules.

Conclusion - Issue #1 – Consideration of Baidwan Factors on Sentencing of Accused – Risk While in Custody During COVID-19 Epidemic

[42] As of June 9, 2020, there are 11 people under 40 in all of Ontario that have died from COVID-19. Even if infected, the morbidity rate of persons in the accused’s age range is 0.1 percent. The accused is relatively young – 32 years of age. He has an underlying medical problem regarding a gunshot wound that has not healed properly. Without medical evidence, there is no reliable evidence of any susceptibility to a COVID-19 infection.

[43] There is no evidence before me of a COVID-19 outbreak at Maplehurst and there is no evidence of any inmates currently infected with COVID-19 at Maplehurst.

[44] Accordingly, on the evidence before me, the COVID-19 pandemic has minimal relevance regarding an appropriate sentence for the accused.

Issue #2 – Appropriate Sentence – Accused Has Committed Serious Crimes But Has Suffered Serious Injury During Arrest

[45] The accused has spent over two years in custody since committing the present offences. He has accumulated approximately one year in pre-sentence custody, which with a 1.5 to 1 credit, is equivalent to a credit of 1.5 years of pre-trial custody.

[46] Had the accused not been shot during his arrest, an appropriate cumulative sentence for the present offences would have been 3-4 years in the penitentiary. I am sure that if given the choice, the accused would have preferred to spend 4 years in the penitentiary rather than get shot and suffer from an injury that has rendered him disabled.

[47] The accused indicated that it is difficult to get excellent care while incarcerated. Treatment options would almost certainly be better if the accused were not in custody. One of the factors regarding the accused’s recent urinary retention problems is his reduced mobility situation. Being released from custody should provide conditions that can be expected to improve this medical problem.

[48] I see no benefit to either the accused or society to incarcerate the accused any further.

Conclusion - Issue #2 – Appropriate Sentence – Accused Has Committed Serious Crimes But Has Suffered Serious Injury During Arrest

[49] After reviewing the history in the pre-sentence and Gladue reports, outlining the accused’s turbulent and chaotic childhood, I conclude that the accused was never provided with the nurturing necessary to become a successful and contributing adult member of society.

[50] In all the circumstances, I do not find it necessary in either society’s interest or the accused’s interest to sentence the accused to a further period of incarceration. After giving credit of 1.5 years or 18 months of presentence custody, I find that an appropriate sentence, in these unique circumstances, to be a suspended sentence and two years’ probation concurrent on all charges. Given the accused’s past problems adhering to probation conditions, I intend to impose minimal conditions as I do not wish to set the accused up for future failure.

Conclusion - Order

[51] On all counts, (counts 2-6), the accused is sentenced to a suspended sentence and 2 years’ probation, concurrent on all counts with a pre-trial credit of 1.5 years.

[52] The conditions of probation are:

1. To report to a probation officer forthwith and thereafter as required.
2. To attend drug addiction treatment/counselling as recommended by the probation officer.
3. To have no contact directly or indirectly with Sgt. Dorling and Rocco Fazzari.

Ancillary Orders

[53] Ancillary orders are as follows:

1. Regarding count #3 [breach of weapons prohibition – s. 117.01(1)] and count #4 [possession of a firearm – s. 96(2)], pursuant to s. 109 of the Criminal Code, the accused is prohibited from possession of firearms for life.
2. Regarding count #2 [driving while disqualified – s. 259 (1)] and count #6 [flight from police – s. 249.1 (2)(a)], there will be a 3-year driving prohibition.
3. There will be an order for the return of any seized property to Rocco Fazzari (firearms and ammunition) and a forfeiture order of any remaining seized property to the Waterloo Police Service.

Skarica J. Released: June 12, 2020