R. v. Almeda-Rodriguez, 2020 ONSC 695

COURT FILE NO.: CR-19-50000749

DATE: 2020-01-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LEONARD ALMEDA-RODRIGUEZ

Defendant

Michael Wilson, Counsel for the Crown

Craig Zeeh, Counsel for the Defendant

HEARD: December 9 and 13, 2019; January 10, 2020

BROWN, CAROLE J., J.

REASONS FOR SENTENCE

1The defendant pled guilty at the commencement of trial to assault using an imitation weapon to commit a crime, uttering death threats and failure to comply.

2In this case, Mr. Rodriguez used an imitation firearm, in broad daylight on a busy street against the victim. That victim was significantly traumatized by the imitation firearm which produced such psychological trauma that the victim, in fear for his life and safety, ran across the busy city street and jumped into an ambulance which was stopped nearby.

3Mr. Rodriguez had a previous record of aggression and violence. His criminal record includes uttering threats, assault and fail to comply, for which he was incarcerated and, upon release, placed on probation.

4It is the position of the Crown that, given the offences and his past criminal record, he should be sentenced to 12 to 14 months with some reduction for the time he has served at the Toronto South Detention Centre, given the record of lockdowns which was filed in evidence before this Court. The Crown further seeks a two-year probation on terms to which the defence agrees.

5It is the position of the defence that, taking into account the mitigating factors and the need to recognize his chances for rehabilitation, demonstrated through the Certificates of Completion he has obtained while in detention and his plans for the future, Mr. Rodriguez should serve eight months in prison, and up to 12 months at most, should this Court consider that additional time is required. He seeks a significant reduction on the basis of Duncan credits for his time in lockdown at the Toronto South Detention Centre.

General Sentencing Principles

6The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences that have one or more of the following objectives:

a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b. to deter the offender and other persons from committing offences;

c. to separate offenders from society where necessary;

d. to assist in rehabilitating offenders;

e. to provide reparations for harm done to victims or to the community; and

f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

7The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be had regarding the principles set forth in section 718.2.

8The principle of parity is a governing principle which must be considered. It requires a sentence to 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] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

9The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 42, (S.C.C.). If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

10In this case, I am of the view that the principles of general and specific deterrence and denunciation are of paramount significance. I also take into consideration the principle of rehabilitation, given the efforts that Mr. Rodriguez has made, taking appropriate courses, seeking the assistance of a psychologist and making plans for his future for living arrangements with his father and stepmother and work arrangements, with his father and brothers in their framing business.

11Each sentencing case differs and each offender must be sentenced based on the particular offences that he or she has committed. However, other cases, such as those cited by both counsel in sentencing submissions, are of assistance in determining an appropriate range of sentence for similar offences and offenders, in connection with consideration for the sentencing objectives as set forth above.

Victim Impact

12The victim, Mr. Leite, submitted a Victim Impact Statement. He was and continues to be shaken by the event, and fears for his safety and that of his family. Based on all of the facts and his actions in running across a busy city street and jumping into an ambulance across the street, it would appear that he experienced psychological trauma at the time of the confrontation, which continues.

Aggravating and Mitigating Factors

Aggravating Factors

13The most significant aggravating factor in this matter is the use of an imitation weapon in the City of Toronto on a busy street in broad daylight. There is a multitude of jurisprudence about the use of firearms in the City of Toronto. There is a further body of jurisprudence as regards use of an imitation firearm. In the matter of R v Al-Isawi, [2017] B.C.J. No. 782, the court cited the Court of Appeal decision in R v Scott 2000 BCCA 220, affirmed 2001 SCC 73, as follows:

43After surveying the recent history of firearms legislation in Canada, it becomes clear that the purpose of section 85(2) is to prohibit persons from using an object that has the appearance of a gun during the commission of a crime, so as to prevent the alarm and trauma that such an activity produces. Parliament must have been aware of the Supreme Court of Canada’s decision in Coven [R v Coven, 1983 CanLII 151 (SCC), [1983] 1 SCR 725] which ruled that section 85(1) does not cover such situations.

14The court continued as follows:

39The relevant provisions have not materially changed since Scott. While section 85(1) prohibits the use of a firearm, there is no meaningful distinction insofar as section 85(2) prohibits the use of an imitation firearm. The purpose of section 85 is to combat the fear, alarm and trauma caused by the use of a firearm, real or imitation, and it has been recognized that whether an offender uses a real or imitation firearm does not impact the harm to the victim who would not know the difference. In R v Steele, 2007 SCC 36 at para 23, a case defining (use) under section 85, Fish J, for the Court, commented “[t]he use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation. Indeed, they share that very purpose.”.

40Moral culpability is not diminished by the use of an imitation, and not a real, firearm. In fact, Parliament has equated the moral culpability of these offences by providing the same sentencing provisions for §§ 85 (1) and (2) (except for certain designated offences in the case of a real firearm). The distinction between a real and an imitation firearm does not bear on the culpability analysis. Nor does Mr. Al-Isawi posit any hypothetical premised on the distinction between a real and an imitation firearm.

15It is of note that Mr. Rodriguez also had a previous criminal record including aggression, violence and failure to comply.

16Upon Mr. Rodriguez’ return to Canada, he became involved in Latino gangs and negative peer groups.

Mitigating Factors

17In this case there are several mitigating factors. Firstly, the accused pled guilty to the charges, saving the court and witnesses time, expense and the potential trauma and re-victimization of testifying. Further, Mr. Rodriguez has shown, in numerous ways, his intention to improve and to better himself. He sought the help of a psychologist to understand the traumas of his childhood. Mr. Rodriguez has taken numerous courses during his incarceration to attempt to understand and improve himself and to better himself, including the following: Problem-Solving, Managing Stress, Anger Management, Recognizing Healthy Relationships, Looking for Work, Maintaining Employment, Planning For Discharge, Substance Use, a course called “It’s A Gamble”, Supportive Relationships, Use of Leisure Time, a second course In Supportive Relationships, Setting Up a Budget, a course called “Thoughts To Action”, Changing Habits, Anger Management, Change Is A Choice for 7.5 hours, a course called Connections, Change Is A Choice, a rehabilitative program, for 7.5 hours , another course in Managing Stress, Men’s Educational Session. Thus, he has taken a significant number of courses in an effort to improve himself and to assist in making his integration back into society smoother and more productive.

18He has made plans for the future. He intends to live with his father, stepmother and one brother who lives with them in Maple, Ontario. He intends to work with his father and three brothers in their framing business, where he had previously worked prior to his arrest. His family is supportive. His father and three brothers were in court during his sentencing submissions.

19It appears that he did have a difficult childhood. His parents separated when he was young. He returned to Uruguay after the separation. At the age of nine, a relative seriously assaulted him in Uruguay. His mother was murdered by an ex-partner when he was 13. His father brought him back to Canada at the age of 13 or 14.

20As indicated above, I believe that the appropriate principles of sentencing to be applied here are denunciation and deterrence. Given all of the circumstances recounted above, I am also of the view that rehabilitation is a consideration as regards Mr. Rodriguez .

21In my view, given the seriousness of the use of a firearm, in this case an imitation firearm, I am satisfied that the appropriate sentence is 12 months, allocated as follows: 12 months for assault using an imitation weapon; 10 months concurrent for uttering a death threat; two months concurrent for fail to comply. However, that sentence should be reduced by the period of time that Mr Rodriguez served in pre-trial custody. Also from that sentence should be deducted Duncan credits for the time he spent in the Toronto South Detention Centre, in lockdown.

Duncan Credits

22The conditions as regards the Toronto South Detention Centre have been ongoing for a number of years, and appear not to have improved substantially. Lockdowns are numerous and frequent. Lockdowns sometimes last for the day, sometimes for a period of time during the day and in the case of Mr. Rodriguez, based on the records, appear all to be attributable to staff shortage. This is unacceptable and the conditions produced by the lockdowns result in inhuman treatment for the prisoners. There have been numerous cases which have given a variety of credits for the amount of time in lockdown, from .25 days per day of lockdown to one day per day of lockdown. In the present case there were 108 days of either partial or complete lockdown of which, based on my count, there were 49 days of full lockdown, meaning that the entire Detention Centre and not simply a part of the detention centre was in lockdown. As regards those days that were not in full lockdown, it appears from Mr. Rodriguez’ affidavit that his range was affected during the entire 108 day period. I am satisfied that Duncan credits should be awarded and I would award credits on the basis of .75 per day of lockdown listed in the material provided, or 81 days of credit. As a result, Mr. Rodriguez is sentenced to 12 months less 81 days.

23Thus, taking into account his period of pre-sentence custody, and the Duncan credits, Mr. Rodriguez is subject to a suspended sentence.

24Further, Mr. Rodriguez is to be on probation for two years on the following conditions. Mr. Rodriguez is to report to a parole officer within two business days of release and as often thereafter as required by the probation officer. Mr. Rodriguez is not to be in possession of any weapons or imitation weapons as defined by the Criminal Code, during his parole. There is to be no contact with Mr. Leite or any members of his immediate family. Mr. Rodriguez is not to attend within 300 m of any place that Mr. Leite or any member of his immediate family resides, works or is known to be. He is to attend at and actively participate in any counselling or treatment program as directed by his probation officer. He is to take courses focusing on his rehabilitation, substance abuse, childhood trauma, as well as any other issues which may be determined necessary in consultation with the probation officer. He is to sign all releases necessary to permit his probation officer to follow his progress of treatment, counselling and other programs in which he engages. He is to abstain from use of any alcohol or non-medically prescribed substances. He is to engage in work, commencing immediately, with his father and brothers in their framing business as planned. In this regard, he is to register his work schedule with the probation officer and to provide all necessary authorizations to permit the probation officer to monitor progress, work attendance and report as directed by the probation officer. He is to reside with his family (father, stepmother and brother) as planned. He is subject to a section 109 weapons prohibition order for life and a DNA order.

25Mr. Rodriguez, please stand.

26I have listened to your plans for the future. I have considered all of the courses that you have taken while at the Toronto South Detention Centre. I am of the view that you have demonstrated your desire and intention to improve yourself to re-enter our society as a positive, contributing member of society. I believe that you can indeed be a pro-social, contributing member of the Canadian society. You have a supportive, loving family who are there to assist you as you go along this new path. I hope that you will contemplate on the wrong path that you took and realize and understand how to avoid that in the future. I believe that you have it in yourself to be a good, productive member of the Canadian society. I wish you courage and determination as it will take these qualities as you go along your new path. Please do not let me down.