COURT FILE NO.: CR-20-30000276-0000
DATE: 20211222
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DONANDO EMANUEL BAUGH
ALEXANDER LAURENCE LIBURD and
LEX ANDRE REECE
Kathleen Farrell, for the Provincial Crown
Christine Malezis, for the Federal Crown
Talman Rodocker, for Mr. Baugh
Michael Webster, for Mr. Liburd
Hussein Aly, for Mr. Reece
HEARD: September 7; November 18 and 29, 2021
M. Forestell J.
REASONS FOR SENTENCE
Overview
[1] On September 7, 2021 Mr. Baugh, Mr. Liburd and Mr. Reece all entered guilty pleas to 9 charges related to a shooting incident that occurred on December 10, 2018. Those charges are: aggravated assault (wounding); intentional discharge of a firearm while being reckless as to the life or safety of another person; 3 counts of pointing a firearm (at three separate individuals); possession of a loaded restricted firearm without being the holder of an authorization or licence and occupying a motor vehicle knowing that there was a restricted firearm in that vehicle
[2] In additon, Mr. Reece entered a guilty plea to a charge of breaching a Youth Criminal Justice Act S.C. 2002, c. 1 (“YCJA”) s. 51 weapons prohibition and Mr. Liburd entered guilty pleas to one count of breaching a s. 109 weapons prohibition and one count of possession of Fentanyl for the purpose of trafficking.
The Circumstances of the Offences
[3] The circumstances of the offences related to the shooting are set out in the Agreed Statements of Facts which is marked as “Exhibit 1” on sentencing as follows:
On the evening of December 10, 2018, Ivelin Pentchev (53 years old at the time…) was operating a marked taxicab. Downtown Toronto, two… males flagged Mr. Pentchev down for a ride. He had never met the two males before. Mr. Eid Hassan sat in the backseat on the rear passenger side. An unknown male (“John Doe”) sat in the front. Mr. Penchev did not notice either male to be carrying anything when they entered his taxicab. Mr. Pentchev was directed by Mr. Hassan to drive them to the Midland and Eglinton area in Scarborough. Mr. Pentchev understood the trip to be a round trip back downtown. Once in the Midland and Eglinton area, Mr. Pentchev was directed towards a highrise building at 30 Gilder Drive. Mr. Hassan exited the taxicab and went inside the building. After a few minutes he came back and told Mr. Pentchev it was the wrong building. Mr. Hassan directed Mr. Pentchev to drive across the street to 31 Gilder Drive.
Mr. Hassan directed Mr. Pentchev to wait outside of 31 Gilder Drive: another highrise apartment building. The meter was on, and the two passengers remained in the taxi. Mr. Pentchev was getting nervous given the ongoing passage of time as they waited outside the building. He voiced this concern, but Mr. Hassan asked him to just wait, so he did. Mr. Hassan and John Doe did not converse during the car ride, and Mr. Hassan was the one providing all instructions to Mr. Pentchev.
At approximately 8:55 p.m., the taxicab was parked (with the engine on) in the parking lot of 31 Gilder Drive. Mr. Baugh, Mr. Reece, and Mr. Liburd arrived in a Mazda vehicle and parked nearby in the same parking lot. They exited the Mazda and entered 31 Gilder Drive through the lobby entrance. The taxicab had moved and was parked right in front of the lobby entrance at approximately 9:10 p.m. Mr. Baugh and Mr. Reece exited the building from the lobby entrance and walked by the idling taxicab. Surveillance captures them interacting with Mr. Hassan, who was still seated in the backseat of the taxicab. Mr. Pentchev heard Mr. Baugh and Mr. Reece say (referring to Mr. Hassan and John Doe): "we don't want to deal with these fucking n-----s.” While trailing a bit behind, Mr. Liburd also exited the lobby and was within earshot of the exchange between his friends and Mr. Hassan. Mr. Baugh (driver) and Mr. Reece (front passenger) entered the Mazda parked in the building parking lot near the taxicab, while Mr. Liburd walked north across the parking lot towards Gilder Drive.
Surveillance captures the Mazda exiting the building parking lot and heading west on Gilder Drive. It shows the Mazda quickly crossing to the wrong side of the road and braking where Mr. Liburd is walking. Mr. Liburd entered the vehicle, sitting in the back passenger side. The Mazda continued west on Gilder Drive, and then headed north on Midland. At 9:12:55 p.m., surveillance captures the Mazda making a sharp U-Turn on Midland, heading back towards 31 Gilder Drive. Surveillance captures it passing the building entrance it exited from moments earlier, and circling around to approach the taxicab from behind. Meanwhile, the taxicab continued to idle outside of the lobby entrance. Beginning at 9:14 p.m, the following is captured on surveillance.
The Mazda pulls up behind the taxicab and turns in front of it: preventing the taxi from driving forward. Mr. Baugh (driver), Mr. Reece (front passenger), and Mr. Liburd (rear passenger) quickly exit the Mazda with firearms drawn and pointed at the taxi and its passengers. Several muzzle flashes –showing each of the firearms being discharged—are captured on surveillance while the firearms are pointed towards the taxi. Mr. Baugh, Mr. Reece and Mr. Liburd all discharge their respective restricted firearms at the taxicab. They each fire shots towards the taxicab where they know Mr. Hassan, John Doe, and Mr. Pentchev are all passengers. They stand at most a few metres from the vehicle when firing.
Mr. Hassan is struck once in his upper back. Further damage is caused to the taxi from the discharge of the firearms, including: the rear driver’s side window is entirely blown out, there is a circular hole in the rear window on the passenger side, and there is deformation to the chrome window trim on the driver’s side.
In the midst of the shots, Mr. Pentchev floored the gas and accelerated. Given the positioning of the Mazda, he lost his bumper as he struck it. The three shooters quickly re-entered the Mazda (to the same seats as they exited from upon arrival) and drove after the taxi as it fled the area. Once at the intersection of Midland and Gilder, Mr. Pentchev headed south, and the Mazda headed north.
After fleeing, Mr. Hassan yelled out that he had no air and couldn’t breathe. He said to call an ambulance. As they approached the intersection of Kennedy and Eglinton, John Doe told Mr. Pentchev to stop the car and let him out. Before John Doe exited, Mr. Hassan handed him a wrapped package which he took with him. It was approximately the size and shape of a child’s shoe box. It was wrapped in plastic or paper. Mr. Pentchev continued driving. Only by chance (as Mr. Pentchev was not very familiar with the area) they drove by the 41 Division police station. Mr. Hassan called out to Mr. Pentchev to stop the vehicle at the police station. Mr. Hassan ran into 41 Division and was attended to by officers and immediately brought to the hospital by ambulance. He was carrying nearly $1,000 in cash on his person.
At the time of these offences, nobody had a licence to possess firearms. Further, Mr. Liburd was on a s. 109 CC order prohibiting him from possessing firearms. Mr. Reece was on a s. 51 YCJA order prohibiting same.
[4] Video clips are relied upon by the Crown to demonstrate the circumstances of the shooting. Counsel for the accused argue that the video clips support an inference that an occupant of the taxi may have fired a shot or shots at the accused. Counsel for Mr. Liburd submits that the video clips show that Mr. Liburd was a reluctant participant who held back from the confrontation.
[5] The inference that a shot was fired from the taxi is available from the video and the admitted facts. I draw that inference for the purpose of sentencing. However, this conclusion does little to reduce the seriousness of the circumstances of the offences. It was clearly Mr. Baugh, Mr. Liburd and Mr. Reece who initiated the confrontation with the occupants of the taxi when they approached and surrounded the car with guns drawn and pointed at the occupants.
[6] I have considered the positioning and actions of Mr. Liburd on the video and I do not find that the video supports the inference that he was a reluctant or less involved participant in the shooting. He clearly fired his gun at the taxi and has admitted that he did so.
[7] The circumstances of the charge of possession of Fentanyl for the purpose of trafficking are also set out in an Agreed Statement of Fact. On October 5, 2021 police attended an address in the course of an investigation. They entered a unit and saw Mr. Liburd. He walked away from the officers and one of the officers saw him slide a clear plastic bag of what the officer believed to be drugs into his pocket. The officer removed the bag and arrested Mr. Liburd. Inside the bag was 11.7 grams of Fentanyl and 17.67 grams of crack cocaine. Mr. Liburd was also in possession of $1,756.55 in Canadian currency. It is admitted that Mr. Liburd possessed the drugs for the purpose of trafficking and that the cash was proceeds of crime.
Victim Impact
[8] I have no victim impact statements from Mr. Hassan, the victim of the wounding or from Mr. Pentchev, the taxi driver. I have considered the testimony of Mr. Pentchev at the preliminary inquiry, a transcript of which was filed on the sentencing hearing. Mr. Pentchev testified that after this incident he felt traumatized, panicked and paranoid.
[9] I have considered the medical records contained in Appendix D of the agreed facts. These records demonstrate that the injury suffered by Mr. Hassan was serious but there is no evidence before me of ongoing physical effects on Mr. Hassan.
Positions of the Parties
[10] The Crown seeks the following sentences: For Mr. Baugh, a global sentence of 6.5 years imprisonment before credit for pre-sentence custody; for Mr. Liburd, a global sentence of 8 years imprisonment on the charges relating to the shooting and a sentence of four years concurrent for the count of possession of Fentanyl for the purpose of trafficking, all before credit for pre-sentence custody; and for Mr. Reece a global sentence of 7 years imprisonment before credit for presentence custody.
[11] Counsel for Mr. Baugh submits that a sentence in the range of 5 to 6 years is appropriate before credit for pre-sentence custody. He argues that the sentence should be in the lower end of that range.
[12] Counsel for Mr. Liburd submits that a six-year sentence before credit for pre-sentence custody is appropriate for Mr. Liburd.
[13] Counsel for Mr. Reece submits that a five-year sentence before credit for presentence custody is appropriate for Mr. Reece.
Circumstances of Mr. Baugh
[14] Mr. Baugh is 23 years old. He was 20 years old at the time of these offences. He had no criminal record before committing these offences. Mr. Baugh has four brothers and a sister and was raised by his mother who works as a personal support worker and at other jobs. His father was not involved in his upbringing and his mother worked long hours at multiple jobs to support the family. Mr. Baugh’s family remains supportive of him.
[15] Mr. Baugh has been in custody since his arrest on December 20, 2018 – a total of 1099 days or 3 years and 4 days. He was detained first at the Toronto East Detention Centre (TEDC) for six months before being transferred to the Toronto South Detention Centre (TSDC). He was triple-bunked at the TEDC for a total of 42 days. His unit at the TEDC was offered access to the yard only 38 times or just over 6 times each month. He was subject to lockdowns due to staffing issues 16 times during his 6 months at the TEDC.
[16] Mr. Baugh in his affidavit describes the hardship of triple bunking. He spent time sleeping on the floor on a thin mattress next to the toilet. Mr. Baugh also describes being triple-bunked in a cell without a working toilet.
[17] The Crown called evidence from Sgt. John Lawson, head of security for the TEDC. Sgt. Lawson testified that when he notices that inmates are triple-bunked and there is a cell available where they could be housed with only one other inmate, he directs that the inmates be moved. He testified that when he does so, the inmates invariably resist moving. Sgt. Lawson also conceded in cross-examination that it is the institution and not the inmates who decide cell assignments.
[18] I do not draw any inference from the testimony of Sgt. Lawson on the issue of triple-bunking. It was not argued by the Crown, nor would I find, that Mr. Baugh (or Mr. Reece or Mr. Liburd) chose to be triple-bunked. I accept that the triple-bunking for 42 nights was a hardship for Mr. Baugh.
[19] Mr. Baugh was transferred to the TSDC on June 17, 2029. During his time at the TSDC he was subject to lockdowns for approximately 45% of his time at that institution. The TSDC was subject to frequent lockdowns before the COVID -19 pandemic but the lockdowns increased post-pandemic. In addition, visits were cancelled for a considerable period of time during the pandemic. They were reinstituted on much reduced basis. Showers were often unavailable. I accept Mr. Baugh’s evidence in his affidavit that his incarceration at the TSDC has been like being in segregation and that it has been a crushing experience.
Circumstances of Mr. Liburd
[20] Mr. Liburd is 31 years old and was 28 years old at the time of the offences. he has a criminal record. His record begins in 2009 with a conviction for assault. It includes five convictions for possession of a Schedule I substance for the purpose of trafficking (2010, 2012 x2 2017 x2) and one conviction for trafficking (2016). He was convicted in 2016 of assault causing bodily harm. The circumstances of that offence as disclosed in the transcript of the guilty plea were that he accused one of his drug customers of being a ‘rat’ and then punched, kicked and stomped on her face, head and upper torso.
[21] At the time of the offences before me, Mr. Liburd was subject to a firearms prohibition. At the time of the shooting on December 12, 2018 Mr. Liburd was on bail following his October 2018 arrest for the possession of Fentanyl for the purpose of trafficking.
[22] Mr. Liburd has a partner and two children aged 3 and 4 years. His partner and her sister remain supportive of Mr. Liburd. He assisted his partner’s father in the tow truck business at some point prior to the offences. Mr. Liburd has completed his GED while in custody. He plans on pursuing an apprenticeship in a trade upon his release.
[23] Mr. Liburd has been in custody since December 12, 2018 and spent two days in custody in October 2018 after his arrest on the drug charge for a total time in custody of 1109 days or 3 years and 14 days.
[24] Mr. Liburd spent just over 14 months at the TEDC following his December 2018 arrest. During that time, he was triple bunked 17 nights. He was subject to lockdowns due to staffing issues on 54 occasions.
[25] He was incarcerated at the TSDC from February 21, 2020 until sentencing. He was subject to lockdowns on 161 occasions between February 21, 2020 and September 28, 2021 or about 27% of the time. Mr. Liburd’s affidavit also attests to the fact that visits were cancelled and then reduced because of the pandemic. He saw his son only once in the 19 months before sentencing. While incarcerated, Mr. Liburd had little information about the risks presented by COVID and this caused him anxiety. There was considerable tension in the institution. He also experienced anxiety because of the uncertainty around whether his case would proceed.
Circumstances of Mr. Reece
[26] Lex Reece is 21 years old. He had just turned 19 years old at the time of the offence. He was subject to a firearms prohibition at the time of the offence as a result of a 2017 finding of guilt under the Youth Criminal Justice Act for possession of cocaine for the purpose of trafficking.
[27] Mr. Reece has a very supportive family. He has four brothers. He was raised by his mother who has worked at multiple jobs to support her family. Mr. Reece’s father was not consistently in Mr. Reece’s life and provided no support to Mr. Reece’s mother. There was little support for the family from extended family.
[28] Mr. Reece has a three-year-old son.
[29] Mr. Reece grew up in a community housing complex. His mother has now moved from that area and is prepared to have her son live with her when he is released. Mr. Reece has a few credits left to complete before he will earn his high school diploma. He has been diagnosed with a mild intellectual disability.
[30] During his adolescence, Mr. Reece was frequently stopped by the police and feared the police as a result of his interactions with them.
[31] Mr. Reece has been involved with a local pastor who is still willing to work with him upon his release.
[32] Mr. Reece has been detained in custody at the TEDC since his arrest on December 12, 2018- a total of 1107 days or 3 years and 12 days. He was triple bunked 277 times and was subjected to lockdowns 205 times.
[33] Mr. Reece’s affidavit states that he had to sleep on the floor at times when he was triple bunked. He attests to the discomfort of the open toilet in the cell with three inmates. He was anxious and could not sleep. He was the youngest and smallest person on his range.
[34] Mr. Reece was isolated from his family support because of the cancellation and then reduced frequency of visits. In September of 2021 Mr. Reece contracted COVID-19. He recovered from the serious symptoms but continues to suffer from ongoing fatigue and shortness of breath.
The Appropriate Sentence
[35] There are general principles and objectives of sentencing that apply to all three offenders in this case.
[36] The fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. The sentence I impose on each of these offenders must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In arriving at an appropriate sentence, I must consider any aggravating and mitigating circumstances.
[37] In this case the aggravating factors that arise from the circumstances of the case and apply to all three offenders are:
(i) The offences occurred in public in a residential area;
(ii) Multiple shots were fired;
(iii) The actions of the three offenders in pointing the firearms at the occupants of the car were orchestrated and showed an element of planning;
(iv) There were multiple victims; and
(v) Mr. Pentchev, as a taxi driver, was a vulnerable victim. Those who work as taxi drivers are vulnerable to acts of violence.
[38] An aggravating factor specific to Mr. Liburd is his prior criminal record and the fact that he was on bail at the time of the shooting.
[39] Mitigating factors that apply to all three accused are:
(i) That they have entered guilty pleas and saved considerable court time;
(ii) All three offenders have spent just over 1 year and 9 months in custody during the COVID-19 pandemic and the conditions of detention have been exceptionally harsh;
(iii) All three offenders have supportive families.
[40] Some mitigating factors exist that are specific to Mr. Reece and Mr. Baugh. Mr. Reece and Mr. Baugh are both youthful offenders. Neither has an adult criminal record although Mr. Reece has a prior youth finding.
[41] Mr. Reece contracted COVID-19 in custody. This is a further mitigating factor because of the hardship of his period of illness and ongoing symptoms.
[42] The Court of Appeal for Ontario has repeatedly identified the seriousness of firearms offences in the Toronto area.[^1]
[43] It is well-settled law that in sentencing for firearms offences denunciation, deterrence and the protection of the public are the primary sentencing objectives. Generally, exemplary sentences are required for these offences.[^2]
[44] The objective of rehabilitation is still a relevant consideration in sentencing for gun offences. It is particularly important to give weight to rehabilitation when sentencing youthful offenders and when sentencing an offender to a first penitentiary sentence. The principle of restraint applies to youthful offenders facing their first sentences of imprisonment. The sentence imposed a first sentence of imprisonment “should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”.[^3]
[45] Mr. Baugh and Mr. Reece are young and are facing their first prison sentences. Mr. Baugh is a first offender and Mr. Reece has only an unrelated finding of guilt under the YCJA.
[46] In this case I must also consider the collateral consequences of serving a sentence during the COVID-19 pandemic. The approach to collateral consequences was described by Moldaver J. in R. v. Suter:[^4] “The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.”
[47] Each of the three offenders will have to serve the balance of his sentence during the pandemic. The existing restrictions and hardships in the jails will continue or worsen. The risks to the health of these young men will remain or worsen. I have considered the hardships already suffered by the offenders in presentence custody as a mitigating factor in sentence. I must also consider the effect of COVID on the sentence that remains for each of them to serve. I am satisfied that I can take judicial notice of the worsening numbers of COVID infections in the past two weeks and the predictions that infections will continue to rise with the emergence of the recent Omicron variant. It is well accepted that there is a heightened risk to persons in congregate settings like jails. It is clear that even those who have received two vaccinations or have been previously infected with COVID-19 can contract the virus with the new variant.
[48] I am cognizant of the limitation that while the impact of COVID is a relevant collateral consequence, it “cannot be used to reduce a sentence to the point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.”[^5]
[49] In determining the appropriate sentences in this case, I have considered the principle of totality. The Crown submits that all sentences should be concurrent to the sentence imposed on the count of discharging a firearm being reckless as to the lives or safety of other persons. The decision whether to make a sentence consecutive or concurrent is a discretionary one[^6].
[50] Mr. Liburd and Mr. Reece entered guilty pleas to offences involving the breach of firearms prohibition orders. Generally, in cases where an offender is sentenced for a firearm offence or offences and for the offence of breaching a firearms prohibition order, consecutive sentences would be imposed. As the Court of Appeal held in R. v. Claros:[^7] “The principle that such offences should be served consecutively is intended to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. This principle also recognizes the fact that the breach of a prohibition order is different behaviour than the associate offences, engaging different social interests.” [citations omitted]
[51] Mr. Liburd entered a guilty plea to the offence of possession of Fentanyl for the purpose of trafficking. This offence was committed on a different day and was entirely unconnected to the shooting incident. Where offences do not arise out of the same event or series of events, consecutive sentences are generally imposed.[^8]
[52] Where offences are temporally linked but involve invasions of different legally protected interests consecutive sentences may be appropriate.[^9] In this case, the pointing of the firearms at three individual occupants of the car could be viewed as engaging different legally protected interests and consecutive sentences might have been appropriate.
[53] In this case however, the principle of totality justifies the imposition of concurrent sentences. The principle of totality requires that a cumulative sentence “does not exceed the overall culpability of the offender.”[^10] Consecutive sentences could lead to sentences that are unduly long and harsh.
[54] Accordingly, the focus of the sentencing submissions in this case was on the appropriate sentence for the offence of discharging the firearm while reckless as to the life and safety of others. The Crown argues that the range of sentence for this offence is 7 to 11 years while the defence argues that the range is 5 to 7 years.
[55] In R. v. Alexander,[^11] Thorburn J. (as she then was) imposed a global sentence of 9 years on Mr. Alexander who had discharged a firearm at loss prevention officers in a mall when the officers attempted to arrest him for shoplifting. No one was injured in the shooting. The offender in that case had a record that included three robbery convictions and four convictions for assault causing bodily harm.
[56] In R. v. Abdullahi,[^12] McWatt J. imposed a sentence of 5 years on an offender who pleaded guilty to recklessly discharging a firearm, possessing the firearm while not authorized or registered to do so and possessing an over-capacity magazine. The facts in that case were that Mr. Abdullahi and two companions were shot at and Mr. Abdullahi then fired shots in the air. The shooting occurred at a housing complex. One of Mr. Abdullahi’s companions was shot in the leg (not by Mr. Abdullahi). Mr. Abdullahi had a minor criminal record.
[57] In R. v. Hassan,[^13] the British Columbia Court of Appeal upheld a 7-year sentence for reckless discharge of a firearm and possession of a loaded prohibited firearm in circumstances where Mr. Hassan shot a bouncer at a club and attempted to fire the gun at bystanders who pursued him. Mr. Hassan was 33 years old. He was on bail at the time of the offences. The sentencing judge made the sentence consecutive to a sentence for possession of cocaine for the purpose of trafficking that predated the shooting and was unrelated. There was about 2.5 years left for the offender to serve on that sentence.
[58] Belobaba J., in R. v. Larmond,[^14] in imposing a global 7-year sentence for aggravated assault by wounding, discharge of a firearm with intent to wound and possession of a loaded prohibited firearm, observed that, “the more usual sentence in cases where the shooting was planned or premeditated, the shooter had a criminal record with crimes of violence, and the resulting injuries were serious or permanent, is 8 to 9 years.” The offender in Larmond was 22 years old at the time of the offence and had a very minor unrelated record.
[59] In R. v. Jama,[^15] two offenders were convicted after trial of recklessly discharging a firearm. One of the two was also convicted of five offences related to possession of a firearm and a number of drug offences including possession of oxycodone, heroin and cocaine for the purpose of trafficking. The facts underlying the conviction for recklessly discharging the firearm were that the two offenders drove to a parking lot of an apartment complex and stopped behind a car with two men in it. One of the two offenders (Mr. Farah) fired at least three shots from a handgun in the direction of the other car. They then drove away. Mr. Jama was driving. The other car also drove away and there was no evidence that anyone was injured.
[60] Schreck J., in Jama, sentenced the shooter, Mr. Farah to 5 years for the reckless discharge of the firearm, one year consecutive for one of the firearms charges and 22.5 months consecutive for the drug offences for a global sentence of 7 years and 10.5 months. He sentenced the driver, Mr. Jama, to five years for the reckless discharge of the firearm. Justice Schreck noted that the sentences would have been significantly higher if not for the pre-sentence conditions at the Toronto South Detention Center.
[61] The Court of Appeal, in R. v. Bellissimo,[^16] referred to a range of sentence of 7 to 11 years for serious gun-related offences. This range has been cited in several cases from this court. In R. v. Jama[^17] et al., Schreck J. distinguished Bellissimo. Schreck J. held that the Bellissimo range may be properly applied only to cases of intentional shootings where someone is injured or there was an attempt to injure someone. Justice Schreck concluded that the range of sentence for reckless discharge of a restricted or prohibited firearm is five to seven years.
[62] I agree with Justice Schreck that the range of sentence for reckless discharge of a firearm where no one is injured is five to seven years. Where, as in this case, a person is wounded, the range of sentence extends from the range identified in Jama into the range identified in Bellissimo. In my view, the range of sentence in these circumstances is 6 to 10 years.
[63] I turn now to the appropriate sentence for each of these offenders.
Mr. Baugh
[64] With respect to Mr. Baugh, absent consideration for harsh conditions of presentence custody and the collateral consequences of serving the balance of his sentence during COVID, I would have imposed a sentence in the middle of the identified range of 6-10 years. Although Mr. Baugh is a youthful first offender who has shown remorse by pleading guilty, the objectives of denunciation and deterrence demand a significant penitentiary term. This was an extremely serious offence involving multiple gunshots in a residential area. The confrontation was planned and orchestrated. There were multiple victims. The aggravating circumstances take the case out of the lower end of the range and justify an exemplary sentence even on a guilty plea by a first offender like Mr. Baugh.
[65] However, taking into account the exceptionally harsh conditions of presentence custody endured by Mr. Baugh and the collateral consequences of serving his sentence during the pandemic, I instead impose a global sentence of 6 years before Summers[^18] credit for presentence custody. Mr. Baugh has been in custody for 1099 days. A credit at 1.5:1 results in credit of 1649 days. This leaves 541 days (or just under 18 months) left to serve.
Mr. Reece
[66] Mr. Reece is a very youthful offender with an unrelated related youth record. The aggravating circumstances of the offence are the same for Mr. Reece as for Mr. Baugh. In additon, Mr. Reece was subject to a firearms prohibition at the time of the shooting As with Mr. Baugh, absent consideration for presentence conditions I would have imposed a sentence that was in the middle of the range. As a result of the conditions of presentence custody I instead impose a sentence of 6 years before the Summers credit. There is, in my view, no basis to distinguish between Mr. Baugh and Mr. Reece. Mr. Reece was subject to a prohibition order, but he is also younger than Mr. Baugh and suffered greater hardship in custody when he contracted COVID. Mr. Reece has been in custody for 1107 days. He is entitled to a Summers credit of 1661 days. This leaves 529 days (or about 17.5 months) left to serve.
[67] Mr. Liburd is not a youthful offender and he has a related criminal record. He was on bail and subject to a firearms prohibition at the time of the shooting. I recognize that Mr. Liburd has shown remorse by his guilty pleas and that there is a prospect of rehabilitation. However, because of his age and background a longer sentence is warranted. I have considered the harsh presentence conditions and the collateral consequences of a sentence served during COVID. I impose a sentence of 7.5 years before Summers credit. Mr. Liburd has been in custody for 1109 days. At a credit of 1.5:1 he is entitled to 1664 days credit. This leaves 1073 days (or just under 3 years) to serve.
Order
[68] The breakdown of the sentences for each of the offences is as follows:
Mr. Baugh:
Count 5 — Aggravated assault: 4 years’ imprisonment before credit for presentence custody;
Count 10 — Intentional discharge of a firearm while being reckless as to the life and safety of another person: 6 years’ imprisonment concurrent before credit for presentence custody;
Counts 11, 12 and 13 — Pointing a firearm at Eid Hassan, Ivelin Pentchev and John Doe: 2 years concurrent on each before credit for presentence custody;
Count 15 — Possession of a loaded restricted firearm without being the holder of an authorization or licence: 2 years concurrent before credit for presentence custody;
Count 16 — Occupying a motor vehicle knowing that there was a restricted or prohibited firearm in the vehicle: 1 year concurrent before credit for presentence custody.
The global sentence before credit is 6 years’ imprisonment. Mr. Baugh’s actual days in custody are 1099. With credit at 1.5 to 1 of 1649 days, this leaves 541 days to serve.
Mr. Liburd:
Count 5 — Aggravated assault: 4 years’ imprisonment before credit for presentence custody;
Count 10 — Intentional discharge of a firearm while being reckless as to the life and safety of another person: 7.5 years’ imprisonment concurrent before credit for presentence custody;
Counts 11, 12 and 13 — Pointing a firearm at Eid Hassan, Ivelin Pentchev and John Doe: 2 years concurrent on each before credit for presentence custody;
Count 15 — Possession of a loaded restricted firearm without being the holder of an authorization or licence: 2 years concurrent before credit for presentence custody;
Count 16 — Occupying a motor vehicle knowing that there was a restricted or prohibited firearm in the vehicle: 1 year concurrent before credit for presentence custody;
Count 20 – Breach of a firearms prohibition order: 1 year concurrent before credit for presentence custody.
On the separate indictment charging Mr. Liburd with possession of Fentanyl for the purpose of trafficking: 4 years’ imprisonment concurrent before credit for presentence custody.
The global sentence before credit is 7.5 years’ imprisonment. Mr. Liburd’s actual days in custody are 1109. With credit at 1.5 to 1 of 1664 days, this leaves 1073 days to serve.
Mr. Reece:
Count 5 — Aggravated assault: 4 years’ imprisonment before credit for presentence custody;
Count 10 — Intentional discharge of a firearm while being reckless as to the life and safety of another person: 6 years’ imprisonment concurrent before credit for presentence custody;
Counts 11, 12 and 13 — Pointing a firearm at Eid Hassan, Ivelin Pentchev and John Doe: 2 years concurrent on each before credit for presentence custody;
Count 15 — Possession of a loaded restricted firearm without being the holder of an authorization or licence: 2 years’ imprisonment before credit for presentence custody;
Count 16 — Occupying a motor vehicle knowing that there was a restricted or prohibited firearm in the vehicle: 1 year concurrent before credit for presentence custody;
Count 22 — Possession of a firearm while prohibited by an order under the Youth Criminal Justice Act: 1 year concurrent before credit for presentence custody.
The global sentence before credit is 6 years’ imprisonment. Mr. Reece’s actual days in custody are 1099. With credit at 1.5 to 1 of 1661 days, this leaves 529 days to serve.
[69] In addition, I make the following ancillary orders:
(i) Section 244.2 is a primary designated offence and accordingly, I make an order with respect to each offender authorizing the taking of samples of bodily substances as are reasonably required for the purposes of DNA analysis.
(ii) With respect to Mr. Baugh and Mr. Reece: An order under s.109(2) prohibiting them from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for ten years after release from prison and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
(iii) With respect to Mr. Liburd: An order under s. 109(3) prohibiting him from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
(iv) Also, with respect to Mr. Liburd, I make a forfeiture order with respect to the currency and cellphones seized from Mr. Liburd.
M. Forestell J.
Released: December 22, 2021
COURT FILE NO.: CR-20-30000276-0000
DATE: 20211222
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DONANDO EMANUEL BAUGH
ALEXANDER LAURENCE LIBURD and
LEX ANDRE REECE
REASONS FOR SENTENCE
M. Forestell J.
Released: December 22, 2021
[^1]: R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532, 201 O.A.C. 138 and R. v. Brown, 2009 ONCA 563
[^2]: R. v. Nur, 2013 ONCA 677 at para. 206; R. v. Smickle, 2014 ONCA 49 at para. 18
[^3]: R. v. Priest, 1996 1381 (ON CA), 1996 CarswellOnt 3588 at para. 23
[^4]: 2018 SCC 34, [2018] 2 S.C.R. 496 at para. 48
[^5]: Suter, at para. 47
[^6]: R. v. Delchev, 2014 ONCA 448 at para 34; R. v. M.(T.E.), 1997 389 (SCC), [1997] 1 S.C.R. 948 (S.C.C.) at para. 46
[^7]: 2019 ONCA 626 at para. 51
[^8]: R. v. Paul, 1982 179 (SCC), [1982] S.C.J. No. 32
[^9]: R. v. Houle, 2008 ONCA 287 at para. 4
[^10]: R. v. M.(C.A.), 1996 230 (SCC), [1996] S.C.J. No. 28 at para. 42
[^11]: 2013 ONSC 1071
[^12]: 2014 ONSC 272
[^13]: 2012 BCCA 201
[^14]: 2011 ONSC 7170 at para. 27
[^15]: 2021 ONSC 4871
[^16]: 2009 ONCA 49
[^17]: 2021 ONSC 4871
[^18]: R. v. Summers