Court File and Parties
COURT FILE NO.: CR\19\10000010\0000 DATE: 20200213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
shamiehl pink
COUNSEL: J. Flaherty, for the Crown M. Andrews, for Mr. Pink
HEARD: November 27, 2019 and February 6, 2020
REASONS FOR SENTENCE
KELLY J.
[1] Mr. Shamiehl Pink has pleaded guilty to possessing a prohibited firearm with ammunition, contrary to s. 95(1) of the Criminal Code, R.S.C., 1985, c. C-46. He has also pleaded guilty to possessing the loaded firearm during a robbery and while prohibited from doing so, contrary to ss. 344(1)(a.1) and 117.01(1) of the Criminal Code respectively. Mr. Pink appears before me now for sentencing.
[2] Crown Counsel submits that the appropriate sentence is a global one of 10 years in custody. Counsel for Mr. Pink submits that the appropriate sentence is a global one of 7 to 7.5 years.
[3] Both Counsel agree that Mr. Pink should receive a reduction in his sentence for time served pursuant to R. v. Summers.[^1] They also agree that some credit should be given for the harsh conditions experienced by Mr. Pink while incarcerated in the Toronto South Detention Centre pursuant to R. v. Duncan.[^2]
[4] Lastly, both Counsel agree that the following ancillary orders should be imposed:
(i) an order pursuant to s. 487.051(2) of the Criminal Code that Mr. Pink provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and
(ii) an order pursuant to s. 109 of the Criminal Code that Mr. Pink be prohibited from possessing any weapons (as defined in that section) for life.
[5] After having considered the facts of the case, Mr. Pink’s background and the relevant legal principles, I find that the appropriate sentence is 9 years, less time served (4 years, 9 months) for a further 4 years, 3 months to be served.
[6] What follows are my reasons.
The Facts
[7] The facts giving rise to the pleas and convictions formed part of an Agreed Statement of Facts (“ASF”). The ASF may be summarized as follows:
a. On August 8, 2017, Mr. Pink was on King Street West in the area of Portland Street. He and another male approached Mr. Evan-Robert Benoit and his girlfriend in a parking lot.
b. Mr. Pink had a loaded firearm in his possession at the time. The unknown male with Mr. Pink appeared to possess a loaded firearm as well.
c. Mr. Benoit was wearing a large gold chain necklace. The unknown male assaulted Mr. Benoit, grabbing him from behind and demanding his chain. A physical struggle ensued at which time, the unknown male pulled out his firearm.
d. Mr. Pink circled around to face Mr. Benoit. He pointed his firearm at him. All was captured on video surveillance.
e. At least two shots were fired during the struggle. One caused a through-and-through shot of Mr. Benoit’s anterior left thigh.
f. Mr. Benoit freed himself and ran away. Mr. Pink followed with his firearm pointed at him.
g. After the altercation, Mr. Pink and the unknown male ran to a white Chevy Cruz which was parked across the street. Both entered the car. Mr. Pink was arrested after he tried to exit the car.
h. Located on the floor of the car in the rear (where Mr. Pink had been sitting) was a Colt .45 caliber semi-automatic firearm. At the time, Mr. Pink did not have a firearms license to possess it, nor was he the holder of a registration certificate for it.
i. It is not alleged that Mr. Pink fired the shots. He was a party to the robbery and not the principal.
[8] These are the facts upon which Mr. Pink is being sentenced. I will now turn to a consideration of Mr. Pink’s background.
Personal Background
[9] Mr. Pink’s background (and other relevant information) was provided by way of a Pre-sentence Report. It may be summarized as follows:
a. Mr. Pink is currently 32 years of age.
b. Mr. Pink is the youngest of three children. His father lived in the United States, so he was primarily raised by his mother in Toronto.
c. Mr. Pink resided in the Driftwood area of Toronto for some time. At the age of 13 he was the victim of gun violence, causing him to lose an eye. He became insecure about his appearance as well as “scared” and “angry”. His mother moved out of the Driftwood neighbourhood, but he returned there as he felt “welcomed”.
d. At the age of 17, Mr. Pink was the victim of gun violence again. He was shot in the buttocks. He believes that this may have been the result of ongoing issues between the various neighbourhoods. He does not believe that he was targeted on either occasion.
e. Mr. Pink’s brother has been in conflict with the law, but they have a positive relationship. He also has a good relationship with his sister who advises that she has not known her brother to affiliate with peers involved in criminal activity. She reports that although they are a close family, they have not discussed the shootings of her brother.
f. Mr. Pink has a relationship with Ms. Lesheena Smith and has been so involved for five years. They have no children.
g. Mr. Pink started his education and was doing well until he was shot the first time. Thereafter, he withdrew and was placed in behavioural classes. He stopped taking education seriously and constantly “cut” classes. Eventually he was expelled but completed his high school courses while incarcerated federally.
h. Mr. Pink has been employed sporadically. He has worked in a call centre, for agencies and a janitorial company. In July 2017 he completed a pre-apprenticeship program in network cabling.
i. After his gunshot injuries, Mr. Pink was using marijuana frequently to ease the pain. Witnessing the effects of crack cocaine on his family members deterred him from using it. Mr. Pink is an occasional consumer of alcohol.
j. Mr. Pink expressed remorse to the probation officer. He recognizes that the choices he has made have impacted not only himself, but his family and the public. He admits that he has exercised poor judgment and has a desire to live a pro-social existence, free of criminality. He believes the trauma that he suffered has caused him to live a “paranoid lifestyle” where he felt the need to protect himself with a firearm.
[10] Mr. Pink has a criminal record that contains the following entries:
| Date | Offence | Sentence |
|---|---|---|
| June 26, 2002 | Possession of a Schedule I substance. | Probation for 12 months. |
| Possession of a Schedule I substance. | As above, concurrent. | |
| May 12, 2004 | Obstruct peace officer. | Probation for 18 months. |
| Fail to comply with recognizance. | As above, concurrent. | |
| Robbery. | As above, concurrent. | |
| December 20, 2004 | Fail to comply with recognizance. | Probation for 12 months. |
| September 2, 2008 | Conspiracy to commit an indictable offence. | 7 years imprisonment (4.5 years’ imprisonment in addition to 30 months pre-sentence custody) and a mandatory prohibition order pursuant to s. 109. |
| Commission of an offence for a criminal organization. | As above, concurrent. | |
| Weapons trafficking. | As above, concurrent. | |
| January 25, 2012 | Statutory release violator. | Recommitted. |
[11] While incarcerated, Mr. Pink has participated in various programs, including: Overdose Prevention and Response; 17 Life Skills Educational Sessions for Men; Anger Management; Men’s CIAC Connections Program; The Way the Truth and the Life; Boundaries; Look Both Ways Creative Writing Series; Forgive You: The Forgiveness Project; Change is a Choice; Managing Stress; Problem Solving; Thoughts in Action; Goal Setting; Supportive Relationships; Understanding Feelings; MPC LIVE Music Production; Recognizing Healthy Relationships; Setting Up a Budget; Being an Effective Father; Substance Use; It’s a Gamble; Planning for Discharge; Discharge Planning; Maintaining Employment – Keeping a Job; Looking for Work; Use of Leisure Time; African Excellence Pilot Project; Library Book Club; Creative Writing Series, More Life; The Forgiveness Project workshop on anger management, forgiveness, restorative justice and restoration; and Thoughts to Action.
[12] Letters were provided to the court which may be summarized as follows:
Ms. Dawn Drummond: Ms. Drummond is Mr. Pink’s mother. She works at the TD Bank and before that, she worked at a call centre for almost 19 years. She describes the impact of the gun violence on her son as follows:
Our lives changed years ago, especially Shamiehl’s, when he was injured at the age of thirteen. Shamiehl was shot on his way home from a local church where he had been playing basketball with his friends. He had been walking home when he heard shots ring out and began running. He ran inside a store to take cover, ran out the back of the store, and was hit by a stray bullet as he exited the back of the store. He was about a 5-minute walk from home when this happened. The bullet hit him in the head and caused him to lose his left eye. He now wears a prosthesis.
Ms. Drummond describes that everything changed after the first injury to her son from gun violence. When he came out of the federal prison system, she describes that her son wanted to make a change. He got an apartment, a job, went back to school and completed an apprenticeship program. She was shocked when she learned that her son had been arrested for these offences. She was shocked because she is aware that her son can lead a positive life. She, together with members of their community, will be there to guide him to a productive life when he is released. She is confident that her son regrets his behaviour.
Ms. Shenequah Pink: Ms. Pink is Mr. Pink’s sister. She describes that her brother is capable of becoming a responsible citizen. She believes that he was always looking out for her, despite the fact that she was older. When she went to New York for university and was frustrated, it is her brother who encouraged her to continue. She describes him as “caring, encouraging, funny, hardworking and determined”. She describes that her brother is “more than capable of being a positive contributor to society, he knows what it takes to be a success and I know he can fall right back into the routine of work, school, and home life”.
Ms. Lesheena Smith: Ms. Smith is Mr. Pink’s girlfriend and has been for almost eight years. She works two jobs and is the sole proprietor of a small online boutique. She says that she will be available to support Mr. Pink both mentally and emotionally upon his release. She describes him as “very caring, ambitious, driven, loving and supportive”. She has suggested that they may leave Toronto to make a fresh start. She says that Mr. Pink, “possesses the desire and determination to learn from his experiences and move in a positive direction with his life”.
Ms. Lucy Reid: Ms. Reid is the Director of Operations at Impact Cleaning Services. She confirms that Ms. Pink was employed by them for approximately five years in two locations. She says:
He was a respectful and responsible young man who was diligent in his duties and was a team player. He could be counted on to work additional shifts if required and was always willing to lend a helping hand. He worked well with others and was polite and respectful towards his co-workers and supervisor.
Ms. Tara Muldoon: Ms. Muldoon is the found of the Forgiveness Project. They work with inmates dealing with self-reflection and accountability. She describes a pilot project called “Look Both Ways” for young men who are passionate about rehabilitation and growth. She advises that Mr Pink has participated and has remained “engaged and reflective”. She added:
Upon release, we work with graduates to do public speaking engagements in Universities, Colleges and High Schools across the GTA. As one can imagine, we need many volunteers to make this happen. During this time, Mr. Pink will reflect on his own journey and speak to students about the impact of his decisions with forgiveness being the key theme.
I personally commit to supporting Mr. Pink as he integrates into society as I believe he has strong leadership skills.
[13] Mr. Pink also addressed the Court during sentencing submissions. He stated, amongst other things, as follows:
a. He apologized for the harm caused to the victims. He regrets participating in this offence saying, “Nothing can explain the remorse I feel for the people I affected by my wrongdoing. I’m truly sorry and there is no excuse for what I’ve done.”
b. The last 2.5 years in custody have been difficult and the “worst” period of his life. He says, “I failed myself and my loved ones, especially my mother knowing where I come from and what I want for my life.”
c. Mr. Pink says, “I know what I did was wrong, and I also know that the person that did those things is not the kind of person that I am”.
d. Mr. Pink says that he is a better person than the person who made the decision to participate in this criminal act. He explained that a couple of weeks before he was arrested for these offences, he was escorted out of his job as a janitor at the Law Society of Upper Canada. He had worked there for four years without incident. However, they conducted a background check. When they discovered his criminal record, he was dismissed immediately and escorted from Osgoode Hall by a security officer. He felt angry and frustrated by this action. The job had kept him occupied and allowed him to maintain a distance from his old acquaintances.
e. Mr. Pink says that there is no excuse for his behaviour. He acknowledges the pain and trauma he and his family experienced due to gun violence. He knows from experience that no one should have to live through what he has explaining, “Instead of adding to the problem I should be doing everything in my power to help that it stops and this kinda [sic] thing doesn’t happen again.”
f. Mr. Pink says that he has changed his thinking and that did “not happen overnight”. He says that he has changed his ways and wants to move forward with his life.
[14] I will now turn to a consideration of the relevant legal principles.
The Law
[15] In determining an appropriate sentence for Mr. Pink, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- The fundamental purpose of sentencing is to protect society and 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 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.
[16] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^3]
[17] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^4]
[18] Both Counsel have provided cases in support of their positions on sentence. Some of the cases provided by Crown Counsel may be summarized as follows:
R. v. Addow:[^5] Mr. Addow was found guilty of several offences, including discharging a firearm; committing aggravated assault and pointing a firearm; three offences dealing with firearms possession; two offences of possession of a firearm while prohibited; and breach of his probation order and of his recognizance. A group of youths were gathered drinking and smoking. One was shot in the back of his leg by Mr. Addow. At the time of sentencing, Mr. Addow was 23 years of age. He did have an unrelated criminal record. Quigley J. imposed a sentence of 8 years, 3 months.
R. v. Swaby:[^6] Mr. Swaby was found guilty of aggravated assault, discharging a firearm with intent to endanger life and unlawful possession of a loaded prohibited firearm with ammunition. The offences arose from a drive by shooting wherein the victim was shot in front of his home. Mr. Swaby created a dangerous environment, not only for the victim, but for those with him as well as the people and property in the neighbourhood. Mr. Swaby was 19 years of age at the time of the incident. He did not have a criminal record but committed an offence while on bail. He demonstrated remorse and had the support of his family. Mr. Swaby was sentenced to 9 years in custody.
R. v. Walker-King:[^7] Mr. Walker-King shot a drug dealer with a firearm while subject to a firearms prohibition. He wore a mask and attempted to flee. Mr. Walker-King had prior convictions for weapons offences. The shooting was unprovoked, deliberate and planned. Mr. Walker-King was in a stable relationship. He was remorseful, had family support and a plan for rehabilitation. Mr. Walker-King was sentenced to 9.5 years’ imprisonment.
R. v. Kreko:[^8] Mr. Kreko pleaded guilty to possession of a loaded prohibited firearm, robbery with a firearm and intentional discharge of a firearm. At age 22, Mr. Kreko had his face masked with a bandana. He approached the victim with a firearm in his hand. There was a struggle. The gun discharged and the bullet hit the ground. Mr. Kreko took a necklace and cell phone before fleeing. The victim chased Mr. Kreko who fired several shots at the car in which the victim was located. Mr. Kreko was Aboriginal but did not know that or the fact that he was adopted until he was between the ages of 16 and 18. He had struggled with his identity but took steps to deal with these issues. He was remorseful. The Court of Appeal reduced Mr. Kreko’s sentence from 13 to 9 years imprisonment. The Court of Appeal observed that there was a real possibility of rehabilitation. However, the fact that these offences were committed in violation of a conditional sentence which included house arrest and that they were committed while subject to two prohibition orders were aggravating factors. Also, aggravating was the seriousness of the offences.
R. v. Cox:[^9] Mr. Cox participated in a robbery involving keys and $50 taken at a store in a mall. The victim was shot in the leg by a single bullet at the end of the robbery. Mr. Cox was given a sentence of 11 years’ imprisonment. The Ontario Court of Appeal upheld the sentence, accepting that the incident was planned to some extent. They found that the sentence was entirely fit given the nature and location of the offences.
[19] Counsel for Mr. Pink also provided cases to the Court that assist in defining a range of sentence. Some of the more relevant cases provided may be summarized as follows:
R. v. Charley:[^10] Mr. Charley was convicted of robbery with a firearm, aggravated assault, possession of a loaded firearm and breach of a prohibition order. Mr. Charley and another robbed a convenience store at gunpoint. Mr. Charley pistol whipped the clerk. The clerk grabbed the firearm from Mr. Charley and a struggle ensued. Two shots were fired, apparently by accident, during the struggle. Mr. Charley was given a global sentence of 7.5 years plus one day.
R. v. Muir:[^11] Following a jury trial, Mr. Muir was found guilty of robbery with a firearm and related offences. He and another entered an apartment building and encountered the victim coming up the hallway towards them. They ran towards him with a loaded firearm and hatchet. The facts did not clearly identify who possessed the firearm because both had their faces covered. Mr. Muir and the other fled in a car after having taken the wallet and identification of the victim. Mr. Muir eventually got out of the car and travelled through a backyard on foot. In that backyard, police found a backpack containing, amongst other things, a hatchet and a firearm. Mr. Muir was sentenced to 5 years’ imprisonment. The Court of Appeal upheld the sentence. It found that, “given the submissions made and the fact that the trial judge imposed the minimum sentence for these very serious offences, in the circumstances, we are not persuaded the trial judge disregarded the pre-sentence custody or house arrest bail”.
R. v. Taylor:[^12] Mr. Taylor was convicted of robbery with a firearm and aggravated assault. The victim was a 17-year-old who was accosted by a group of men after he left a party and was approaching his car. One of the men pointed a firerarm at the victim who fought back. There was a struggle for the firearm. Others intervened, attacking the victim. The firearm was discharged several times thereafter. The others eventually fled, leaving the gunman and the victim struggling. As he ran to his car, the victim was shot in the back and he was paralysed. He was robbed of a set of gold and diamond studded teeth. The trial judge was not satisfied that Mr. Taylor was the shooter but was satisfied that he was a party to the robbery. A global sentence of 8 years was upheld by the Court of Appeal. Amongst other things, the Court found that there was a need to deter and denounce the illegal use of firearms. The offence was a planned and vicious attack on an innocent victim for the purpose of robbing him. The firearm was loaded during the attack and shots were fired. The area was populated with people such that Mr. Taylor’s actions showed a complete disregard not only for the victim, but also for the bystanders. The attack involved group violence. The offence had a devestating impact on the victim. Mr. Taylor had a significant youth record, including a robbery with a firearm. He was on probation at the time.[^13]
R. v. Uniat:[^14] Mr. Uniat pleaded guilty to conspiracy to commit robbery and robbery arising out of a home invasion in Ottawa. The trial judge imposed a sentence of 7 years. Mr. Uniat appealed, seeking a sentence of 4 years. The Court of Appeal upheld the sentence of 7 years, finding that Mr. Uniat was “an 18-year-old- recidivist, who was on probation and bound by a firearms prohibition, armed himself with a shotgun enroute to a home invasion robbery of several youthful residents of an Ottawa area apartment building. He held the victims at gunpoint. He threatened to shoot them. The gun was unloaded, but anyone facing its barrel would have no way of reaching that conclusion.”[^15] The Court held that the trial judge properly considered denunciation and deterrence as the predominent sentencing objectives in reaching her conclusion about the appropriate sentence.
[20] While helpful, the submitted cases demonstrate that sentencing a person, such as Mr. Pink, is a very individualized process. There is no such thing as a uniform sentence for a particular crime.[^16]
[21] Further, regardless of which counsel provided the cases, one theme is consistent in all authorities dealing with firearms, especially in the City of Toronto. This is a theme that is often referred to regardless of the level of court: firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons.[^17]
Analysis
a. Mitigating and Aggravating Factors
[22] In considering the fit sentence, I find the following to be the aggravating factors:
a. Mr. Pink possessed the loaded firearm in our city that is plagued with firearm possession and use.
b. Mr. Pink possessed this firearm and ammunition in breach of a prohibition order.
c. Mr. Pink has been the victim of gun violence on two occasions. He is aware of the havoc these weapons can cause and yet he armed himself with a firearm and had it on his person during a robbery in a busy downtown area.
d. The robbery was a vicious attack on an innocent victim, even if only planned at the last minute.
e. Mr. Pink has a significant record. Despite having been incarcerated federally in the past, Mr. Pink has not been deterred.
f. Despite efforts at employment and education, Mr. Pink is in conflict with the law again. It appears that, to some extent, he has accepted violence as a way of life.
g. The victim was outnumbered by Mr. Pink and his accomplice. Mr. Pink and his accomplice were working in tandem to effect the robbery.
h. This was an unprovoked attack in a very public place.
i. Members of the public, in addition to the victim, were put at significant risk. The robbery took place on King Street at closing time for the licensed establishments in the area. It was busy and active with members of the public.
j. Mr. Pink tried to make his escape by getting into a car that fled the area.
k. The offence, despite the fact that no Victim Impact Statement was read or filed, must have had a devastating effect on the victim.
[23] There are mitigating circumstances to consider in sentencing Mr. Pink as well:
a. There was a plea of guilt. The plea resulted in a saving of resources in a post-Jordan era.
b. Mr. Pink has shown remorse by pleading guilty.
c. Mr. Pink gave a moving apology to the Court when asked if he wished to address it during the sentencing proceeding.
d. The plea provided certainty of result. The witnesses did not have to testify.
e. Mr. Pink has the support of his community. His mother and girlfriend were present in court during the sentencing proceeding as well as other members of his community.
f. Mr. Pink has demonstrated that he is a valuable employee. Since last being incarcerated, he was employed as a janitor at the Law Society of Upper Canada for four years. His employer has indicated that she would give him a job upon release. As such, work is available to Mr. Pink.
g. His work history and his attendance for further education (an apprenticeship) demonstrate a capacity for rehabilitaiton.
h. Mr. Pink has made wise use of his time while incarcerated. He has attended many programs. He has been held out as a good example and would be of value to our community via speaking engagements regarding his involvement in the criminal justice system.
i. Although he wielded a firearm, he was not the shooter.
j. Mr. Pink, himself, has been affected by gun violence.
b. The Fit Sentence
[24] So what is the fit sentence? This is a difficult case.
[25] Mr. Pink has been affected by gun violence. As counsel suggested, this experience drew him into a life of criminality. Rather than turning to the police for security, members of his community assured him that he would be taken care of. He was drawn into the criminal lifestyle at a young age (13). A second bullet injury did not release him from the grip of that community. Rather than turn to law enforcement, he armed himself for protection. This provides some explanation for his criminal record.
[26] I am cognizant of the significant sentence imposed on Mr. Pink in 2008 (a global sentence of 7 years less pre-sentence custody). He has already been to the penetentiary. That said, he was steadily employed for a number of years without incident following his release. His past came back to haunt him when background checks were conducted. Although he appears to have been a valued employee by the agency who was responsible for cleaning the Law Society of Upper Canada, his pride was crushed when he was escorted out of the building that he had worked in for the past four years. He returned to his criminal lifestyle thereafter.
[27] Even after having committed these offences and while incarcerated, he has made use of his time to improve his lot in life. Despite the harsh conditions of the Toronto South Detention Centre, he has again participated in sessions to make him a better person when released. He has impressed Ms. Muldoon of the Forgiveness Project. She wishes for him to speak to members of our community so they can avoid the mistakes he has made leading to his incarceration.
[28] Despite the positive steps that Mr. Pink has taken, the appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. Pink. However, Mr. Pink deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts. I cannot say, with certainty, that there is no hope for rehabilitation and I do not disregard such a possibility. I also cannot ignore the principle of totality. However, I find that the primary sentencing objectives in this case are denuciation and deterrence.
[29] The sentence for breaching the court order must be consecutive. That charge represents a separate and distinct offence from that of possessing the firearm and ammunition.[^18]
[30] In all of the circumstances, I find that the appropriate sentence is a global one of 9 years. But for the principle of totality and the plea, I would have had no hesitation in imposing a sentence of 10 years.
[31] Mr. Pink is entitled to a reduction in sentence for a variety of reasons.
c. The Summers Credit
[32] Mr. Pink will be given credit for time spent in pre-sentence custody in accordance with s. 719 (3.1) of the Criminal Code and Summers. Mr. Pink has been in custody since August 8, 2017. As such, he has spent 920 days in custody or, 30 months and 6 days. Enhanced at 1.5 days for each day spent in presentence custody, Mr. Pink will be given credit for 3 years, 10 months (this has been rounded up) or 46 months.
d. The Duncan Credit
[33] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration.[^19]
[34] During the time that Mr. Pink was incarcerated, it is agreed that there were a considerable number of days of full and partial lockdown.[^20]
[35] It is agreed that during this time, there was limited, if any, access to the shower program, telephones, etc. Both counsel agree that Mr. Pink suffered anxiety over and above the norm due to the conditions. I do find that Mr. Pink was subject to harsh conditions and that the impact of such conditions was detrimental to Mr. Pink’s well-being. Neither Mr. Pink nor any other inmate was responsible for the majority of the lockdowns. They occurred purely as a result of staff shortages.
[36] There is no mathematical equation for the amount of time to be credited as compensation for being incarcerated under harsh conditions. Based on the evidence before me, I am prepared to give Mr. Pink a further credit of 11 months given his harsh experience while in pre-sentence custody.
Conclusion
[37] In conclusion, Mr. Pink is sentenced to a global sentence of 9 years less the following credits:
a. Summers credit: 46 months; and
b. Duncan credit: 11 months.
[38] When the credits (57 months) are deducted from the sentence of 9 years (108 months), Mr. Pink is required to serve another 51 months or 4 years, 3 months.
[39] The sentence shall be recorded as follows:
| Count | Offence | Criminal Code Section | Sentence |
|---|---|---|---|
| 6 | Possession of a loaded prohibited firearm while not the holder of an authorization or licence for the firearm with ammunition. | 95(1) | 5 years concurrent to Count 7. |
| 7 | Party to a robbery where a firearm was discharged. | 344(1)(a.1) | 8 years, less 56 months for a further 3 years, 3 months to serve. |
| 17 | Possession of a firearm while prohibited from doing so by an order pursuant to s. 109 of the Criminal Code. | 117.01(1) | 1 year consecutive to Count 7. |
[40] Mr. Pink will be subject to the following ancillary orders:
(i) an order under s. 487.051(3) of the Criminal Code that Mr. Pink provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and
(ii) an order under s. 109 of the Criminal Code that Mr. Pink be prohibited from possessing any weapons (as defined in that section) for life.
Kelly J.
Released: February 13, 2020
COURT FILE NO.: CR\19\10000010\0000 DATE: 20200212
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
shamiehl pink
REASONS FOR SENTENCE
Kelly J.
Released: February 13, 2020
[^1]: 2013 ONCA 147 and 2014 SCC 26 [^2]: 2016 ONCA 754 [^3]: See: R. v. Nur, 2011 ONSC 4874, aff’d. 2013 ONCA 677, upheld 2015 SCC 15, [2015] 1 SCR 773 [^4]: See: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 80 [^5]: 2014 ONSC 3225 [^6]: [2009] O.J. No. 1974 (S.C.J.) [^7]: [2011] O.J. No. 3088 (S.C.J.) [^8]: 2016 ONCA 367, [2016] O.J. No. 2552 (C.A.) [^9]: [2015] O.J. No. 5823 (C.A.) [^10]: 2019 ONSC 6490 [^11]: 2017 ONCA 461 [^12]: [2006] O.J. No. 3178 (C.A.) [^13]: See R. v. Taylor, supra, at para. 13 [^14]: 2015 ONCA 197 [^15]: Ibid., at para. 5 [^16]: 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) [^17]: See, amongst others, R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), [2005] O.J. No. 3532 (C.A.) (QL) and R. v. Nur, 2015 SCC 15 [^18]: See: R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) [^19]: R. v. Duncan, supra, at paras. 6 and 7 [^20]: There was a significant discrepancy between the records kept by the Toronto South Detention Centre (“TSDC”) and Mr. Pink. Mr. Pink believed there were 386 days of lockdown by the TSDC; however, the TSDC recorded 235 days of lockdown. In an effort to move the sentencing matter forward, counsel agreed on the credit to be given to Mr. Pink for the harsh circumstances experienced by Mr. Pink in the TSDC due to staff shortages.