COURT FILE NO.: 16-A10921
DATE: 20210610
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Nehemiah Samuel Campbell
BEFORE: Justice C.T. Hackland
COUNSEL: Matthew Geigen-Miller, Counsel, for the Crown
Michael Smith, Counsel, for the Accused
HEARD: May 25, 2021 (by Zoom videoconference).
Sentence Decision
The Convictions
[1] The accused Nehemiah Campbell was convicted on 4 counts on an indictment containing a series of weapons charges and one count of breach of recognizance. The Court’s reasons are reported, see R. v. Campbell, 2019 ONSC 1938.
[2] The accused was found not guilty on counts 2 and 3. The charges on which the accused was convicted and the maximum and where applicable, the minimum sentence provided for in the Criminal Code, are the following:
Criminal Code Section
Maximum/Minimum
Count 1
244.2(3)
Intentionally discharge firearm into or at a place
Minimum of 5 years when committed with a prohibited firearm
Maximum 14 years
Count 4
117.01(3)
Possess firearm while prohibited
Maximum 10 years
Count 5
95(2)
Possessing a loaded prohibited firearm
Maximum 10 years
Count 6
92(3)
Possessing a firearm knowing possession is unauthorized
Maximum 10 years
Count 7
145(4)
Fail to comply with recognizance
Maximum 2 years
Circumstances of the Offence
[3] On May 23, 2016 at approximately 2:50 am, the accused was standing on the corner of Laurier and O’Connor streets in downtown Ottawa. He had been at a nearby bar that had just closed, and he was standing with a group of patrons from the bar. Suddenly, a passing car pulled over to the curb and an occupant of the vehicle began shooting a firearm in the direction of the accused, wounding the accused in the right arm and wounding a bystander in the hand.
[4] The accused ran about a half block from the scene to escape the gunfire and as the attacker’s vehicle accelerated by him in the street, the accused fired approximately 13 shots at the vehicle from a 9mm handgun in his possession. At the time of this incident the accused was on a recognizance of bail that prohibited him from possessing firearms or from being in the City of Ottawa (except for court purposes).
[5] The Crown points out, I find correctly, that there is a 5 year minimum sentence for the intentional discharge of a prohibited firearm pursuant to s. 244.2(3)(a)(i) of the Criminal Code. I am satisfied the 9mm handgun fired by the accused in this incident is a prohibited firearm.
Crown’s Position
[6] The position of the Crown is that the accused should receive a sentence of 9 years imprisonment, consisting of 8 years on the most serious charge of intentionally discharging a firearm (s. 244.2(3)) with concurrent sentences on the other firearms charges and breach of recognizance charge, except that the sentence for possessing a firearm while prohibited (s. 117.01(3)), should be one year consecutive. The Crown agrees that the accused should have credited against his sentence a total of 112 days for 75 days of pre-trial custody, (at the rate of 1.5 to 1).
Defence Position
[7] The position of the defence is that a 4 year sentence is appropriate for the discharge firearm offence (s. 244.2 Criminal Code) and the sentences for the other weapons offences and the breach of recognizance offence should be served concurrently. The accused seeks the standard 1.5/1 credit for pre-trial custody, in this case 112 days. In addition, the accused seeks a ‘Downes’ credit for the period he was subjected to house arrest and other stringent conditions as a component of his bail (discussed below).
Aggravating Factors
[8] This was an extremely reckless and dangerous use of a firearm in downtown Ottawa. While the accused did not shoot anyone, he was trying to do so when he fired 13 bullets at a fleeing car, seriously risking the safety of persons on the street. This type of gun violence constitutes a major public safety issue. The accused had been ordered by the court not to possess weapons and not to be in Ottawa other than for court related reasons, restrictions he was prepared to ignore. The accused has a criminal record for drug trafficking (2015) and for breach of recognizance arising from travelling from Toronto to Vancouver in contravention of his Calgary house arrest restrictions while awaiting sentencing on the present charges.
Mitigating Factors
[9] The accused does not have an extensive criminal record and the current offences are the first involving violence. His Pre-Sentence Report is reasonably positive. He seems to take a responsible and caring approach to his two daughters and he is close to his elderly parents. He is willing to engage in programming and counselling. In my view he has rehabilitative potential. In terms of the incident, I would note that there is no clear evidence that the accused planned to be involved in this incident, although he did appear to arm himself with a handgun shortly before he walked to the street corner where the incident occurred. The assailant’s attack from a passing vehicle that pulled over to the curb was sudden and seemed to take the accused by surprise.
Case Law and Legal Analysis
[10] The Crown submits Ontario jurisprudence recognizes a range of 7 to 11 years for serious firearms offences: R. v. Bellissimo, 2009 ONCA 49 and R. v. Jefferson, 2014 ONCA 434. The Superior Court of Justice followed the Bellissimo range in R. v. Weeden, 2019 ONSC 773. In Bellissimo, the Court of Appeal increased a sentence to 10 years for an offender who fired several shots in a restaurant significantly injuring one victim, causing a minor injury to another and narrowly missed killing a third person. In Jefferson, the Court of Appeal upheld a 10 year sentence for discharging a firearm and possession of a firearm while prohibited for an offender who fired a gun through the windshield of a car, wounding someone with whom he was having a dispute. In Jefferson, the Court of Appeal confirmed the range of 7 to 11 years imprisonment for serious weapons offences. In Weeden, McArthur J. sentenced an offender to 9 ½ years for aggravated assault, discharging a firearm at a person with intent and possession of a loaded restricted firearm, in circumstances of a shooting in a bar in which the offender accidentally wounded an Uber driver waiting in his vehicle to pick up a fare.
[11] Recently, in R. v. Dhaliwal, 2019 ONCA 398, the Court of Appeal further discussed and limited the application of the Bellissimo range for serious firearms offences. The offender in Dhaliwal intentionally fired a single bullet into the ceiling of a building, where it lodged without striking anyone. The Court of Appeal held that the sentencing judge erred by imposing a sentence in the Bellissimo range of 7 to 11 years and reduced the sentence on the firearms offences in that case to 6 years imprisonment.
[12] An important distinction between the decisions applying the upper end of the Bellissimo range of sanctions and the present case is that Mr. Campbell did not injure anyone from the use of his firearm and indeed was wounded himself. The bystander shot in the hand was shot by the attackers. As noted, there was no clear evidence this attack was anticipated and it unfolded very suddenly. Having said that, once the accused distanced himself from the attacker’s vehicle, he went into a retaliation mode, pulling out his handgun and firing some 13 shots in the direction of the attacker’s vehicle as it sped away on the street. He was clearly attempting to at least wound persons in the fleeing vehicle and demonstrated no regard for other persons on the street who may have been in the line of fire.
[13] In the Court’s view this very serious and dangerous shooting incident falls into the lower end of the Bellissimo range and as the Court of Appeal has explained, offences involving gun violence need to be dealt with harshly in order to reflect the sentencing principles of denunciation and deterrence. I also view the circumstance that the accused was under an order not to possess firearms when he was discharging his firearm in this incident in a downtown street, as a serious violation of his obligations to the court and to the public, requiring a consecutive sentence, see R. v. Flowers, 2010 ONCA 129 and R. v. Brown, 2010 ONCA 745.
[14] In the Court’s opinion, a fit and proper sentence on the most serious of the offences charged, being the intentional discharge of firearms offence (count 1) is 7 years imprisonment and on the possession of firearms while prohibited offence (count 2), 1 year, to be served consecutively. The balance of the offences will be served concurrently to the intentional discharge of firearms offence, as follows: count 5 possession of a loaded prohibited firearm (sec. 95(2) CCC), 3 years; count 6 possession of a firearm knowing possession is unauthorized (sec. 92(3) CCC), 2 years; count 7 failure to comply with a recognizance (145(4) CCC), 3 months.
Pre-Sentence Credits
[15] As noted, the accused will be accorded 112 days credit against his sentence for the time he spent in custody following his arrest. In addition, the defence seeks an additional credit based on the principles outlined by the Court of Appeal in R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555. These principles were helpfully summarized by my colleague Maranger J. in R. v. Thornton, 2015 ONSC 5280 (at para. 7):
In the case of R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.), at para. 37, the Court set out the approach that a trial judge should take when examining pre-trial bail conditions in terms of what credit should be given.
In summary, credit for pre-trial bail conditions should be approached in the following manner:
• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account, is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[16] The defence submits that the accused was subjected to two periods of house arrest, totalling 894 days, as part of his bail conditions, which were onerous to the accused and should result in a significant credit against his sentence on the Downes principles. The accused was released from custody on August 5, 2016. He was required to reside in Calgary with one of his two sureties Ms. A.M., and observe house arrest conditions. Subsequently, effective January 2018, his bail conditions were varied to allow him to reside in Toronto with his girlfriend. The Crown and defence disagree as to whether the Toronto period involved house arrest, or merely a curfew at various times during that period, as a result of several bail orders and variations.
[17] The accused testified at the sentence hearing on how the bail conditions impacted him in both Calgary and subsequently in Toronto. The Court also had the testimony of his present surety and girlfriend who has resided with him in Toronto since he was permitted to re-locate there from Calgary, and from his other surety, Mr. G.M., who testified online from Ethiopia where he has been for some 3 months. Mr. G.M. is obviously not fulfilling his duties as a surety. He admitted in cross-examination that he was presently in Ethiopia and has made a number of lengthy trips out of the country since he has been a surety for the accused. Mr. G.M. has been one of the accused’s sureties in Calgary and subsequently in Toronto. I give little weight to Mr. GM’s evidence.
[18] The accused lived in Calgary with his former surety, Ms. A.M. and her young child. He had no personal relationship with Ms. A.M. He slept on the couch in her small apartment. When he went out in her company, he usually attended the child’s activities. He was depressed, inactive and gained a great deal of weight. He understood his bail order to require that he be in the actual presence of one of his sureties at all times, which further added to very stressful living conditions. He was unable to see his 2 daughters who resided in Ottawa. He was in considerable pain as the bullet wound in his arm gradually healed. He worked online doing some record keeping for his father who had a business in B.C. The accused, I accept, led a very unpleasant confining existence for the approximately 18 months he was on house arrest in Calgary. I propose to recognize half that time (9 months) as a credit against his sentence.
[19] The accused was then permitted to relocate to Toronto in late January 2018 to reside with his girlfriend, who also became his surety. The bail conditions provided: “3. Remain in your residence at all times unless you are in the presence of one of your sureties”. I accept the accused’s evidence that he believed his house arrest actually continued and he had to be with a surety at all times (his girlfriend or G.M.). Contrary to his perceptions, he was simply subject to a curfew for most of his time in Toronto. The bail order was subsequently modified to allow him to make visits to B.C. to visit his parents (accompanied by his girlfriend). In January 2019, his bail terms were varied again to clearly restore the 11:00 pm to 6:00 am curfew and the permission to go to B.C. for two weeks at a time was continued. Overall, I find that the accused’s lifestyle while in Toronto, residing with his girlfriend as his surety, was far less onerous than his time in the Calgary house arrest regime. In summary on this issue, I am persuaded by the defence that on the balance of probabilities some recognition of the restrictive bail terms for the year in Toronto leading up to the last variation is warranted. I allow a credit of 3 months for this period.
Disposition
[20] In summary, the accused is sentenced to 8 years imprisonment as explained above, less a credit of 12 months for restrictive bail conditions (‘Downe’s’ credit) and less a credit for 112 days for pre-trial custody. The time remaining to be served is therefore 6 years and 253 days.
Ancillary Orders
[21] The following ancillary orders are also made: a DNA order on counts 1,4,5,6 and 7 and a s. 109 weapons prohibition order for life on counts 1,4,5 and 6.
Date: June 10, 2021
COURT FILE NO.: 16-A10921
DATE: 20210610
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
AND
Nehemiah Samuel Campbell, Accused
COUNSEL: Matthew Geigen-Miller, Counsel, for the Crown
Michael Smith, Counsel, for the Accused
SENTENCE DECISION
Justice Charles T. Hackland
Released: June 10, 2021