Court File and Parties

COURT FILE NO.: CR-18-70000324-0000 DATE: 20200721 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – KADAH DEMATAS AND CHRISTOPHER LUCAS Accused

Counsel: Monica Gharabaway, for the Crown Christian Pearce, for the Accused

HEARD: December 20, 2019 B.A. Allen J.

REASONS FOR JUDGMENT ON SENTENCE

THE CHARGES

[1] Kadah Dematas and Christopher Lucas were arrested on charges related to a home invasion and shooting of an occupant in an apartment unit which occurred in the early morning hours of December 31, 2016. The incident took place in an apartment unit in a housing complex in Toronto. The two accused were charged in relation to the shooting of Adam Cummings, an occupant of the unit at the time. They were jointly charged on an 11-count indictment with:

a) count 1 attempted murder, b) count 2 discharge firearm with intent, c) count 3 aggravated assault, d) count 4 assault with a weapon, e) count 5 robbery with a firearm, f) count 6 use of firearm while committing indictable offence, g) count 7 unlawful possession of loaded restricted firearm without being the holder of authorization or licence permitting possession at that place, h) count 8 unlawful possession of a firearm knowingly without being the holder of a licence permitting possession, i) count 9 unlawful possession of a firearm knowingly being without a licence, j) count 10 careless use of a firearm.

[2] I directed a verdict of not guilty for both accused on the attempted murder charge. Following trial, I acquitted Mr. Lucas on the 10 remaining charges on the indictment and convicted Mr. Dematas on all 10 remaining charges. Only Mr. Dematas stands to be sentenced.

FACTUAL BACKGROUND

[3] Just after 1:00 a.m. on December 31, 2016 three black males, Mr. Dematas and two other unknown males, burst into 5 Wakunda, unit 612, a small bachelor apartment after an occupant, Mr. Rogers, answered the door. There were two other occupants in the unit at the time. Mr. Rogers and the lessee, Mr. Ellison, were in the living room watching television and Mr. Cummings had gone to the bathroom. The bathroom is immediately across from the entrance to the unit.

[4] One of the males who was wearing a brown jacket was pointing a firearm upon entry. Two of the men went towards the bathroom and one, who I identified as Mr. Dematas, remained in the living room.

[5] Mr. Dematas stayed with the two occupants and ordered them not to move or use their cellphones. The male wearing a brown jacket pushed the bathroom door open, where Mr. Cummings was sitting on the toilet, and yelled, “Give me the money”. Mr. Cummings replied that he did not know what he was talking about.

[6] The male in the brown jacket then pointed a firearm at Mr. Cummings’ forehead and poked him on the forehead three times. Mr. Cummings grabbed the nozzle of the firearm after the third hit, pulling it down towards his neck, and the firearm discharged on the side of his neck. He underwent surgery for an injury to his neck and remained in the hospital for 18 days. The bullet has remained lodged in his upper back. Mr. Cummings thought the men who came into the unit were after him for selling drugs in the housing complex and were after drug money.

PRINCIPLES ON SENTENCING

[7] Section 718 of the Criminal Code sets out the principles that underpin the sentencing objectives of denunciation, deterrence and the separation of the offender from society.

[8] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.

[9] Proportionality is a guiding principle. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 ONCA 5549, 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[10] Parity is another governing principle which requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163].

[11] The totality principle requires the judge sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.

AGGRAVATING AND MITIGATING FACTORS

[12] Section 718.2(a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[13] The aggravating factors in this case are of course the extremely violent and egregious nature of a crime which involved the discharge of a firearm which seriously injured an occupant of the home. Mr. Dematas has a youth criminal record for a drug-related offence, for uttering threats, obstructing a police officer and two failure to comply convictions.

[14] A further aggravating factor is the fact that Mr. Dematas does not have an employment history. Nor is there any indication that he has sought to improve his formal education since he left school at age 16.

[15] On the mitigation side, Mr. Dematas does not have a prior adult criminal record. As well, he is a young man. He was 18 years of age at the time of the offence, four months into statutory adulthood. He is currently 21 years of age. The detention centre records indicate that his conduct and attitude have improved and turned toward more positive motivations in adult custody in contrast to his disposition in youth custody. He has shown a willingness for rehabilitation through the programs he has completed in custody.

[16] The records describe Mr. Dematas’ conduct as “fair”. But I think that descriptor has to be seen in light of the abysmal conditions at Toronto South Detention Centre (“TSDC”) during his stay there and the natural human tendency to react emotionally under the circumstances. As discussed below, there was a multiplicity of lockdowns sometimes for days on end where inmates were confined to their cells. “Fair” conduct in more humane conditions would surely take on another meaning.

[17] Mr. Dematas has family support from his mother and girlfriend. So, he does not have to rely solely on himself to move into a more pro-social lifestyle.

[18] For the purposes of a finding of guilt, Mr. Dematas shares guilt equally with the actions of his associates. On sentencing, however, it is appropriate to consider the role an offender has played in the offence to look at any mitigating and aggravating factors.

[19] I take note that while Mr. Dematas invaded the apartment unit with his two associates fully aware that one of them was armed and planning to rob Mr. Cummings, he did not play a direct role in shooting Mr. Cummings. He stood guard over the other two occupants in the unit so they would not move or call the police. He did not go to the bathroom where the shooting occurred. This is not to ignore the fact that Mr. Dematas partook in the truly frightening act of bursting into the sanctity of a home in the early hours of the morning in company with an armed intruder. However, it is appropriate for the court to consider in mitigation the lesser role Mr. Dematas played in the commission of the crime.

[20] Mr. Dematas did not plead guilty. However, as addressed below, he displayed what I found to be genuine remorse for his actions when he stood and addressed the court.

KADAH DEMATAS’ LIFE

[21] A Pre-Sentence Report (“PSR”) was prepared for which the probation officer interviewed Mr. Dematas and others.

[22] Mr. Dematas was age 18 years of age when he committed the offences before the court. He has a youth criminal record from 2016 for possession of drugs, uttering threats, for which he received a 12-month conditional discharge, obstruct peace officer for which he received a 5-month conditional discharge and two failures to comply convictions for which he received 30-day sentences each. Not for consideration for this sentencing are firearm convictions on his record dated October 25, 2017 which post-date the commission of the offences before the court.

[23] Mr. Dematas spoke of having had a difficult upbringing from the time he was a young child. He spoke of being emotionally abused by his step-father. He has had no relationship with his biological father only seeing him twice that he could recall. The Children’s Aid Society was involved with the family for periods of time.

[24] Mr. Dematas did not perform well in school. His mother moved him from school to school on many occasions seeking better learning environments for her son. He became involved with a negative peer group and left school at age 16. He has a history of disturbing and threatening behaviour while in youth detention. His mother had him hospitalized for out of control behaviour when he was 15 years of age.

[25] Mr. Dematas shared that he has a close relationship with his mother, Sookia Vieira. His mother attended court during his trial and at the sentencing hearing. He indicated that growing up without a father was difficult. He became associated with a bad crowd. More recently while incarcerated Mr. Dematas developed a relationship with a young lady, Julie, whom he continues to be involved with to the present.

[26] The PSR indicates Mr. Dematas’ conduct in adult custody has been “fair”. He is described as polite and cooperative by authorities at the Toronto South Detention Centre (“the TSDC”) and by the probation officer. This appears to be quite an improvement in his conduct from how he was described when detained as a youth. While in adult custody, he has completed a variety of programs to deal with stress and anger and to prepare him for discharge. He has also completed the African Canadian Wellness program.

[27] At sentencing, through his counsel Mr. Dematas explained that the probation officer who prepared the PSR was incorrect when she indicated that Mr. Dematas did not accept responsibility for his crimes.

[28] Counsel explained that Mr. Dematas told the probation officer that he did not have the gun that shot Mr. Cummings, which is what I found as a fact at trial. Mr. Dematas explained to the probation officer that he did accept responsibility for his convictions but wanted her to know he did not do the shooting. I believe the probation officer likely wrote her comments with a misconception in mind and I accept this to be a reasonable explanation for the probation officer’s mischaracterization of Mr. Dematas’ attitude.

[29] Mr. Dematas addressed the court. He spoke at some length. I obviously do not know Mr. Dematas. The only time I heard his voice was when he stood up to speak to the court at the sentencing hearing. However, I find he displayed what I believe to be genuine remorse for his criminal conduct. I think I am supported in my view by the improvements in his conduct from his youth to adult detention.

[30] Mr. Dematas apologized for any harm or consequences that came to anyone because of his actions. He explained that he has been incarcerated a total of over a 3-year period from age 18, which includes the time he has served from April 4, 2017 on the October 25, 2017 charges. Mr. Dematas told the court that during his detention period he has had plenty of time to think about his mistakes and the direction his life has taken from his youth. He said he feels he has had the opportunity to grow into an adult over those three years. Mr. Dematas has had the support of his mother and girlfriend. He spoke of the positive side of being imprisoned telling the court that he might not be alive today were he not in prison given the dangerous lifestyle he was leading.

[31] The defence submitted a letter from an organization called the Forgiveness Project that supports Mr. Dematas’ words about his plan for the future direction of his life. The organization provides group and one-on-one counselling and post-release planning. Mr. Dematas has been a long-time participant in the program while in the TSDC which he has continued through the pandemic by phone and mail. The letter indicates that Mr. Dematas has plans post-release to get involved in community organization to support problem youth to find new directions towards more positive lifestyles.

[32] I find Mr. Dematas presents as a young man who is amenable to rehabilitation and a change in his lifestyle post-release.

PRINCIPLES GOVERNING HOME INVASIONS AND FIREARMS

[33] This case involves Mr. Dematas’ involvement as a party to a home invasion where a restricted, loaded firearm discharged wounding Mr. Cummings. As noted above, Mr. Dematas was not the shooter but rather acted as a party to the crime guarding the other two occupants during the shooting.

[34] Courts have weighed in on the seriousness of home invasions involving robbery and the use of firearms in cities like Toronto where violent gun crime is prevalent. The defence has filed a number of cases on robberies, but their usefulness is limited by the fact that none of them involve pointing or discharging a firearm, the most critical aspect of Mr. Dematas’ convictions. One case the defence filed involved a home invasion and an aggravated assault with a firearm the offender did not discharge:

a) The offender, age 18 years involved in violent home invasion where female resident was bound and beaten with a firearm and a golf club. The appellate court upheld a 7-year sentence for the non-firearm offences but that the trial judge had erred in not making the firearm charges run concurrent to the non-firearm sentence. Total sentence was 7 years. Court commented that a prison sentence for a youthful person should the shortest term proportionate to the crime and the offender’s responsibility: [R. v. Brown, 2015 ONCA 361 (Ont. C.A.)]

[35] The Crown’s cases were more helpful. The following cases provide guidance:

a) Exemplary sentences must be considered with a focus on the principles of denunciation, general and specific deterrence and protection of society; must be imposed in gun-related crimes: [R. v. Danvers, 2005 ONCA 30044, [2005] O.J. No. 3532, at paras. 77 and 78 (Ont. C.A.)]. b) The jump principle which cautions against imposing more severe sentences on the offender for similar offences has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness: [R. v. Courtney, 2012 ONCA 478, [2012] O.J. No. 3087 at para. 12 (Ont. C.A.)] c) The range of sentence for serious gun-related crimes is 7 to 11 years. Court imposed 8 ½ years for an attempted murder using a firearm in a public restaurant where one person was injured: [R. v. Bellissimo, 2009 ONCA 49, [2009] O.J. 179, at para. 3 (Ont. C.A.)] d) Sentence of 9 years’ imprisonment imposed for offender age 32, who, with an accomplice, posed as salesmen, armed with a firearm, pushed into the complainant’s home, bound the complainant, stole money and electronics. The complainant broke free and the offender fired several shots missing him, the bullets entering a nearby school. Nine years was considered at the low range for a planned violent home invasion involving the use of a firearm: [R. v. Jervis, 2013 ONCA 249, paras. 6 and 7 (Ont. C.A.)]. e) Sentence of 8 ½ years’ imprisonment was imposed for a home invasion by 3 men wearing bandanas who entered complainant’s home through the garage door looking for drugs, one carrying a loaded firearm, in circumstances where they knew the occupants were at home. One of the males discharged the firearm hitting one of the occupants in the thigh. Court found the offence particularly serious as having been planned and executed by masked assailants armed with a loaded handgun which was discharged injuring an occupant. The range of sentence was found to be 4-5 years at the low end and 11-13 years at the higher end. In deciding sentence, the circumstances of the case must be considered for a sentence outside the range: [R. v. Mills, 2014 ONSC 2099, at paras. 68, 76 and 77 (Ont. S.C.J.)]. f) The offender, age 20, carried a firearm to a mall. When he encountered the police, a struggle ensued after which police found a loaded firearm in his satchel. Offender, with no criminal record, pleaded guilty and expressed remorse for his actions to the author of the PSR. The court relied on R. v. Marshall, 2015 ONCA 692, at para. 53 (Ont. C.A.) for the observation that although the court should impose the shortest sentence for a youthful, first-time offender, court must consider the seriousness of the crime in imposing sentence. Court commented on the prevalence of gun violence in Toronto and the plague on communities. A 3 ½-year sentence was imposed: [R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038, at para. 16 and 21 (Ont. S.C.J.)]. g) The offender, age 20, was convicted of armed robbery, forcible confinement, discharge firearm, assault with a weapon and other possession of firearm charges. Three masked men with handguns entered an apartment. Two of the males went to get a safe in the apartment. The other male shot the complainant in the back when he tried to escape. Another of the males also discharged his firearm at the complainant missing him, the bullet passing into a neighbouring apartment. Court emphasized the extreme violation of the sanctity of a home caused by home invasions. The accused was sentenced to an 8-year penitentiary sentence: [R. v. Bullock, 2015 ONSC 4300, at paras. 3, 4, 19 and 33 (Ont. S.C.J.)]. h) Although the fact that a type of crime occurs frequently in a particular community is not an aggravating factor, this is a factor a judge might take into account in balancing sentencing objectives, including denouncing the conduct in question in the community. In the appropriate case the court may take judicial notice of the prevalence of a crime in a community: [R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, paras. 90 and 94 (S.C.C.)].

THE PARTIES’ POSITIONS

[36] I requested that in advance of July 14th the parties provide further submissions and evidence to address the issue of the effect of the pandemic on the TSDC and sentencing.

[37] The Crown took the position that Mr. Dematas should serve a 10-year penitentiary sentence. She seeks the following ancillary orders: a mandatory DNA order under the Criminal Code, s. 487.051, a Criminal Code s. 109 firearm prohibition for life and a Criminal Code, a s. 743.21 (1) no contact order prohibiting Mr. Dematas from contacting directly or indirectly Adam Cummings, Ken Rogers and Dave Ellison during his custodial period and a forfeiture order in relation to the firearm. The defence did not dispute the ancillary orders.

[38] The Crown broke down the 10 years as follows:

• 9 years discharge firearm with intent;
• 8 years concurrent aggravated assault;
• Kienapple (stay) assault with a weapon;
• 5 years concurrent robbery with a weapon;
• 1 year consecutive, use firearm during indictable offence (mandatory minimum of 1 year must, according to the Crown, be consecutive);
• 6 years possession loaded restricted firearm;
• 6 years concurrent possession firearm while unauthorized;
• 6 years concurrent possession of firearm knowing unauthorized;
• 2 years concurrent careless use of a firearm.

[39] The Crown based its position on case law that emphasizes exemplary sentences for violent, home invasion type crimes especially as they involve the discharge of a firearm. The Crown recognized the attention that should be given to ordering the least possible penitentiary sentence for youthful offenders who have never served a penitentiary sentence. However, the Crown wished the court to consider case law that cautions that if the offences are very serious as they are in this case the sentence must still be commensurate with the gravity of the offence.

[40] The Crown further asked the court, in fashioning a fit sentence, to take judicial notice of the longstanding crisis in Toronto with firearm-related crimes. Crown counsel filed as an exhibit a graphic depiction of the increase in gun crime in Toronto from January 2014 to December 2019 citing the numbers of deaths and injuries. I do take judicial notice of those circumstances.

[41] The defence took the position that an appropriate sentence is a global sentence of five years broken down as follows.

• 5 years discharge firearm with intent;
• 5 years concurrent robbery with a firearm;
• 5 years concurrent aggravated assault;
• Kienapple (stay) assault with a weapon;
• 3 years concurrent possession loaded restricted firearm;
• 3 years concurrent possession firearm while unauthorized;
• 3 years concurrent possession firearm knowing unauthorized;
• 2 years concurrent careless use of firearm.

[42] Since the sentencing hearing on December 20, 2019, the court ceased regular functions. On March 16, 2020 court operations were suspended due to the COVID-19 virus. Sentence in this case was originally to be passed on March 18th. It was eventually adjourned to July 14th.

ENHANCED CREDIT FOR PRE-SENTENCE CUSTODY

[43] At the sentencing hearing, the statutory sought 1.5:1 credit for pre-sentence custody or “Summers credits” as well as 1:1 credit for the lockdown credits at the TSDC or “Duncan credits”. With the emergence of the pandemic, the defence now seeks 1.5:1 days’ credit for the pre-sentence period with which Crown agrees.

[44] In addition to the regular Summers credits, the defence seeks a credit of 1.5 days for each day of lockdown, based on the most recent records, from December 4, 2017 to June 23, 2020.

[45] The defence seeks an additional ½ day for each day Mr. Dematas serves over the 4 months in custody during the pandemic. The Crown does not agree with the defence’s position that the pandemic should be treated as affecting the overall sentence imposed.

[46] I do not accept the defence’s position. I agree with the Crown that given the seriousness of discharging a firearm and shooting someone in the context of a home invasion, accepting the defence’s position would result in too lenient a sentence given that the defence’s starting point is a 5-year sentence. The sentence would offend the proportionality principle: [R. v. Morgan, 2020 ONCA 279, at para. 10 (Ont. C.A.)]. I will however grant some Duncan credit and credit for the conditions of the pandemic.

Summers Credits

[47] Under s. 719(3) and 719(3.1) of the Criminal Code, when considering sentence, a court may take into account any time the accused spent in pre-sentence custody as a result of the offence before the court. R. v. Summers held that “the unavoidable consequence of capping pre-sentence credit at the 1.5:1 rate is that it is insufficient to compensate for the harshness of pre-trial and pre-sentence detention in all cases. The maximum that can be credited is 1.5 days for each day spent in custody: [R. v. Summers, 2014 SCC 26, 2014 CSC 26, 2014 CarswellOnt 4479 (S.C.C.)].

[48] At the time of the sentencing hearing, Mr. Dematas had been in pre-sentence custody in the TSDC from December 4, 2017 until the date of the sentencing hearing, December 20, 2019, which was 747 real days. He therefore had served 1,121 Summers days.

[49] Of the 747 days the defence sought credit for 185 lockdown days. On December 20th there were only records available to November 6, 2019 which recorded 165 lockdown days until that date. The defence sought extra credit for 185 lockdown days based on Mr. Dematas’ own personal records which indicated there were 20 extra days of lockdown to December 20th. I accept 185 lockdown days to the date of the hearing.

[50] I had scheduled the passing of sentence for March 18, 2020. By that date Mr. Dematas had served 835 real days which amounted to 1,253 Summers credit days.

[51] From March 16th to July 14th, Mr. Dematas served a further 120 real days or 4 months. This means Mr. Dematas served a total of 955 real days from December 4, 2017 to July 14, 2020. Therefore, the total of Summers days from December 4, 2017 to July 14th is 1,433 days.

[52] The defence and Crown provided updated detention records from the TSDC for the period from November 6, 2019 to June 23, 2020 which is 230 days. Of the 230 days, 115 days were spent in partial or full lockdown. The total number of lockdown days from December 4, 2017 to June 23, 2020 is therefore 300 days (185 days+115 days).

Duncan Credit and the Pandemic Credit

[53] R. v. Duncan held that sentencing judges can allow credit for especially harsh conditions as a mitigating factor on sentencing. The court set down the factors to consider being: (a) the conditions of the pre-sentence incarceration; and (b) the adverse effect of those conditions on the accused. The court recognized that is a highly individualized and fact-specific determination: [See also R. v. Bell, 2020 ONSC 2632, [2020] O.J. No. 2317 (Ont. S.C.J.); R. v. Studd, 2020 ONSC 2810 (Ont. S.C.J.); R. v. J.B., 2016 ONSC 790, [2016] O.J. No. 588 (Ont. S.C.J.); R. v. Nsiah, 2017 ONSC 526, [2017] O.J. No. 526 (Ont. S.C.J.); and R. v. Passera, 2019 ONCA 527, [2017] O.J. No. 4381 (Ont. C.A.)].

[54] The defence cited a case of this court where the offender spent 47% of his pre-sentence time in lockdown, the result mainly of staff shortages, where he was confined to his cell, denied showers and fresh air. The court allowed 1.5:1 Summers credit for pre-sentence custody and an additional 1.5:1 Duncan credit for the period in lockdown: [R. v. Persad, 2020 ONSC 188 (Ont. S.C.J)]. The conditions faced by the offender in that case are distinguishable in terms of the proportion of time in lockdown and the more severe impact on Mr. Persad’s health.

[55] Without considering the effects of the pandemic, I accept that the conditions at TSDC are harsh. Numerous courts have commented on the notoriety of the anti-social and deplorable conditions there. The offender has to provide proof of the impact on him of those conditions. The defence filed an affidavit for the December 20th hearing in which Mr. Dematas addressed the hardships he faced.

[56] Mr. Dematas states that inmates were required to remain in their cells for 24 hours during some lockdowns. Some lockdowns lasted multiple days. There was a cessation of the programs inmates could attend to prepare for pro-social community life; inability to call lawyers; a lack of mobility; inability to use a phone; a lack of privacy for hygiene and toilet use resulting in exposure to unpleasant odours and illnesses; limitations on showering and yard activity; and restrictions on visitations by family and friends. Mr. Dematas described the humiliation, anxiety, stress and anger he feels locked up in a cell for hours and hours with no distractions, no privacy in unhygienic and socially isolating conditions.

[57] In a supplementary affidavit, Mr. Dematas describes many of the same conditions as existed in the pre-pandemic period. Added to those conditions are: the cancellation of rehabilitative programming he attended; disruption in his ability to speak to his two main support persons, his mother and his girlfriend; inability to keep abreast of outside news about important issues like the pandemic and the Black Lives Matter movement due dysfunctional televisions; disruption of ability to pray in congregant settings for practising his Muslim faith; decline in ability to maintain personal hygiene; inability to social distance; and poor hygiene practices by guards in not changing their gloves as required before handing food.

[58] Mr. Dematas added in his supplementary affidavit that in 2018 he sustained a fractured occipital bone injury in an altercation with another inmate who among others Mr. Dematas claims seek to harm him.

[59] Mr. Dematas also indicates he suffers from asthma and has been prescribed Flovent and Ventolin puffers while in custody. He complains that inmates smoke cigarettes and drugs which aggravates his condition. He is aware of the risk that respiratory diseases pose with the virus and indicates and knows of the cases of the virus at TSDC. He fears in particular that guards will carry the virus into the facility and infect inmates.

SUMMARY

[60] I carefully considered the sentences for similar offences set down in the cases presented by the parties. I factored in the aggravating and mitigating factors. I find an appropriate sentence is 6 years exclusive of Summers, Duncan and pandemic credits. I believe that sentence is a fit sentence that recognizes the objectives of denunciation, deterrence and separation of the offender from society.

[61] The sentence satisfies the requirement that it be proportionate to the gravity of the offence. It is a sentence that reflects the specific circumstances of Mr. Dematas and the degree of his responsibility for the offence. While he was jointly charged, he did not fire the gun that injured Mr. Cummings. There is acknowledgement in the sentence of the seriousness of firearm-involved home invasions and the prevalence of this crime in Toronto. The sentence further accords with the totality principle in that it is not inordinately lengthy.

[62] The 6 years is broken down as follows:

• 5 years discharge firearm with intent;
• 5 years concurrent aggravated assault;
• Kienapple (stay) assault with a weapon;
• 5 years concurrent robbery with a weapon;
• 1-year consecutive mandatory minimum, use of a firearm while committing indictable offence;
• 5 years concurrent possession loaded restricted firearm;
• 5 years concurrent possession firearm while unauthorized;
• 5 years concurrent possession of firearm knowing unauthorized;
• 2 years concurrent careless use of a firearm.

[63] As permitted by Criminal Code sections 719 (3) and 719 (3.1) and Summers, I will allow credit for 1,433 non-lockdown Summers days.

[64] Looking at Duncan credit, I must consider that Mr. Dematas is a young man. As he has moved to adulthood in detention, he appears to have genuinely attempted to address his anger and anti-social behaviour. He has made use of programs to rehabilitate and improve himself while in custody. I find it a cruel irony that the deplorable conditions at the TSDC could serve to defeat the positive rehabilitative efforts of young people like Mr. Dematas by denying them the programs during multiple lockdowns. Lockdowns have served to produce conditions that promote the negative emotions and attitudes Mr. Dematas has been striving to overcome while in custody.

[65] In spite of the concerns that offenders and the courts have expressed about the TSDC over the years since its opening, the circumstances have not improved. The conditions are increasingly hazardous for both staff and inmates. In the circumstances, I think it appropriate to allow additional credit for lockdown days as other judges have seen fit to do. Again, there is no pat formula.

[66] In considering the conditions at the facility, as other courts have done, I must take into account the added harshness created by the pandemic and any particular effect the pandemic may have on Mr. Dematas: [R. v. Hearns, 2020 ONSC 2365 (Ont. S.C.J.); and R. v. Bell, 2020 ONSC 2632, [2020] O.J. No. 2317 (Ont. S.C.J.)]. In his supplementary affidavit Mr. Dematas graphically describes the impact of the virus on the facility and on him personally in terms of his health. What he describes in his supplementary affidavit, as far as the general conditions are concerned, seems more glaring than the pre-pandemic period.

[67] The evidentiary rules for sentencing hearings are not as strict as required at trial and so I can accept evidence that would otherwise require more proof. I take judicial notice of the widely-published data that shows the adverse effects on persons with respiratory conditions. I accept as credible Mr. Dematas’ evidence that he suffers from asthma which makes him more vulnerable to the virus.

[68] Of the total 300 lockdown days, 35 of those days were served after March 16th during the pandemic. I take into account the extraordinary circumstances created by the pandemic and in particular how the pandemic has exacerbated the already deplorable conditions at the TSDC. I give 1:1 days credit for 265 days non-pandemic lockdown days. I allow 2:1 credit for the 35 days lockdown days during the pandemic which is 70 days. Mr. Dematas is therefore entitled to credit for 335 days in addition to the 1,433 (basic Summers credit) which amounts to 1,768 days.

[69] As of July 21st, Mr. Dematas will have served an extra 7 days which allows 11 days credit at 1.5:1 amounting to a total of 1,779 days’ credit. With a total sentence of 6 years or 2,190 days and 1,779 days’ credit, the balance of his sentence is 411 days. Mr. Dematas has therefore served 59.3 months which I will round to 60 months or 5 years’ credit.

[70] I sentence Mr. Dematas to the balance of his sentence which is 1 year in a provincial correctional facility.

[71] I will also grant the ancillary orders sought by the Crown.

SENTENCE

[72] Kadah Dematas, I will now pass sentence.

[73] I have sentenced you to a global sentence of 6 years broken down as follows:

a. 5 years discharge firearm under s. 244.1 of the Criminal Code; b. 5 years concurrent aggravated assault under s. 268(2) of the Criminal Code; c. Stay (Kienapple) assault with a weapon under s. 267 (a) of the Criminal Code; d. 5 years concurrent robbery with a weapon under s. 344(1)(a.1) of the Criminal Code; e. 1-year consecutive use firearm while committing indictable offence under s. 85(1) (a) of the Criminal Code; f. 5 years concurrent possession loaded restricted firearm under s. 84(1) of the Criminal Code; g. 5 years concurrent possession firearm while unauthorized under s. 91(1) of the Criminal Code; h. 5 years concurrent possession of firearm knowing unauthorized under s. 92(1) of the Criminal Code; i. 2 years concurrent careless use of a firearm under s. 86(1) of the Criminal Code.

[74] I allow 1,779 days’ credit, amounting to 5 years, for time served in pre-sentence custody. There is 1 (one) year remaining to be served in your sentence.

[75] I sentence you to 1 (one) year in a provincial correctional centre.

[76] I impose the following ancillary orders:

a) a Criminal Code, s. 109 firearm prohibition for life; b) a DNA order under s. 487.051 of the Criminal Code; c) an order under s. 743.21 (1) of the Criminal Code prohibiting Mr. Dematas from contacting directly or indirectly Adam Cummings, Ken Rogers and Dave Ellison during his custodial period. d) a forfeiture order in respect of the seized firearm pursuant to s. 462.37(2.01) of the Criminal Code.

B.A. Allen J. Released: July 21, 2020

COURT FILE NO.: CR-18-70000324-0000 DATE: 20200721 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KADAH DEMATAS AND CHRISTOPHER LUCAS REASONS FOR JUDGMENT on sentence B.A. Allen J. Released: July 21, 2020