COURT FILE NO.: 20-799

DATE: 2021-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

David Kirk, Counsel for the Crown

• and -

ISAIAH ALVARADO

Mark J. Palombi, Counsel for the Accused

Accused

HEARD: November 12, 2020 and January 26, 2021

VARPIO J.

REASONS FOR SENTENCE

[1] In January 2020, Mr. Isaiah Alvarado was driven from Toronto to Sault Ste. Marie, Ontario, in order to sell cocaine. He had in his possession a loaded handgun.

[2] On January 9, 2020, Mr. Alvarado was selling cocaine when two of his customers attempted to rob him using bear mace and a machete. Mr. Alvarado shot and killed one of the assailants. Shortly thereafter, Mr. Alvarado returned to Toronto. On March 17, 2020, Mr. Alvarado was arrested in Toronto and he has been in custody ever since.

[3] On November 12, 2020, Mr. Alvarado plead guilty to four charges:

1. Possession of a loaded prohibited firearm, contrary to section 95(a) of the Criminal Code of Canada;

2. Possession of a firearm while prohibited from doing so contrary to section 117.01(1) of the Criminal Code of Canada;

3. Breaching a recognizance contrary to section 145(5)(a) of the Criminal Code of Canada; and

4. Possession of a Schedule I substance, to wit cocaine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

[4] Mr. Alvarado is to be sentenced for these crimes, but his case raises a number of issues that I must resolve prior to so doing.

FACTS

The Incident

[5] As noted above, on January 9, 2020, Mr. Alvarado was selling cocaine in a residence located at 147 Caledon Street, Sault Ste. Marie. At approximately 6:00 p.m., a witness in the parking lot of the Church of Jesus Christ of Latter Saints observed Mr. David Jamieson rolling around on the ground, moaning. Mr. Jamieson had been shot. The witness called “9-1-1”. Police and ambulance attended on scene. Mr. Jamieson was taken to the hospital where he succumbed to his injuries on January 10, 2020.

[6] As police were attending the scene, the witness observed the drapes at 147 Caledon Street closing. Police observed blood droplets leading from the area where Mr. Jamieson was found to 147 Caledon Street. Police also observed a silver knife near where Mr. Jamieson had been lying on the ground.

[7] Police attended at 147 Caledon Street where they observed blood droplets on the side door and fresh blood on the door handle. They knocked on the door and a woman answered. She was coughing and rubbing her eyes. The woman advised that she and another woman were alone in the house. While speaking with the woman, police observed fresh blood leading downstairs into the basement of the residence. They also smelled bear mace.

[8] Police cleared the residence and obtained a search warrant. One of the women in the residence indicated that the “cops said that Dave had lists on him” and “one had a machete, a big knife, I saw them. I was right at the door when they were flying out the door. One of them had a bloody face…”

[9] Police did not find anyone else at the residence but as a result of what was described by both the Crown and defence as “thorough police work”, the police were able to determine Mr. Alvarado sold cocaine to Mr. Jamieson on at least three occasions on January 9, 2020. Mr. Jamieson had planned, along with a Mr. Carli Armstrong, to rob Mr. Alvarado. Mr. Chris Cormier was going to transport the two robbers after the robbery had taken place.

[10] Pursuant to the plan, Mr. Jamieson attended the residence at approximately 5:30 p.m. whereupon he pepper sprayed Mr. Alvarado to incapacitate him. Mr. Armstrong was armed with a machete and was swinging at Mr. Alvarado. A physical altercation ensued between Mr. Jamieson and Mr. Alvarado. Mr. Alvarado took out a pistol and shot Mr. Jamieson three times. Both assailants ran out of the residence to Mr. Cormier’s vehicle.

[11] Mr. Alvarado fled the scene with a Ms. Morgan Robinson. They went to another residence on Albion Street in Sault Ste. Marie. Ms. Maxine Derasp then drove Mr. Alvarado and Ms. Robinson to the Pickering area. During their investigation, police seized photographs from gas stations located along Highways 17 and 69 that showed Ms. Derasp in the company of Mr. Alvarado and Ms. Robinson. Said pictures were distributed to police agencies across the province and a detective with the Toronto Police Service identified Mr. Alvarado. Police investigation cross-referenced Mr. Alvarado’s tattoos which assisted police in confirming Mr. Alvarado’s identity. On March 17, 2020, Mr. Alvarado was arrested and ultimately transported to Sault Ste. Marie to face charges.

[12] On March 18, 2020, Mr. Alvarado gave a statement to Sgt. Dubie of the Sault Ste. Marie Police Service. Mr. Alvarado presented as a sympathetic person during the interview. He stated that he was nineteen years old and was dealing drugs because he had a young child to support. He seemed both relaxed and open with the officer. Mr. Alvarado appeared quite remorseful. He indicated that he wished to relieve his conscience and to makes changes.

[13] With respect to the incident, Mr. Alvarado indicated that he was driven from Toronto to Sault Ste. Marie for the purpose of selling cocaine. On the afternoon in question, he was selling cocaine when two men attempted to rob him. They sprayed him with bear mace which blurred his vision. The assailants then maneuvered Mr. Alvarado into a corner. Alvarado had his back turned to the assailants. On the video, he demonstrated that he was either crouched or bent over. He indicated that he feared for his life. Mr. Alvarado took the pistol from his waist and fired shots over his shoulder.

[14] The Crown advised that Scene Of Crime Officers attended the scene and located a bullet hole in the wall. The trajectory of the bullet was such that the bullet was travelling at an upward angle, from low down to higher up, thus corroborating Mr. Alvarado’s version of events.

[15] Mr. Alvarado was charged with a number of offences but was not charged with an offence related to the killing of Mr. Jamieson.

Victim Impact

[16] On November 12, 2020, Mr. Jamieson plead guilty. On January 26, 2021, I heard a full-day sentencing hearing. At that hearing, I received three Victim Impact Statements (“VIS”) from Mr. Jamieson’s relations. Some of the VIS’s contained views on sentencing and principles of justice. As per s. 722(8) of the Criminal Code of Canada, I will not consider these positions in my reasons. With respect to those issues described in s. 722(1) of the Criminal Code, Ms. L.J. described that the deceased was the closest person in her life and that his death changed her life forever. Ms. L.J. indicated that “[t]his has been an incredibly long hard year for me and my family with very disappointing obstacles along the way”.

[17] In her V.I.S., Ms. P.J. described the shock of receiving a phone call regarding the loss of her brother. She indicated that he had to tell her mother the awful news. She stated that she suffers from stress, anger, fear and consequent sleepless nights. She also indicated that Mr. Jamieson had a 10-year-old daughter who will now grow up fatherless.

[18] Ms. H.M. read her V.I.S. to the court. She described the shock that she suffered upon learning of the shooting. She also described the difficulties associated with the deceased’s passing which ranged from the emotional turmoil of not being able to have a funeral for two weeks (because the deceased’s body was needed as evidence) to ongoing emotional difficulties.

Mr. Alvarado - P.S.R., Youth Record and Letters of Support

[19] I ordered a Pre-Sentence Report for the hearing. The PSR indicated that Mr. Alvarado has no previous criminal record but the Crown filed a youth record with the court. I am advised by both counsel that the timing of Mr. Alvarado’s findings of guilt are such that I may consider his record for sentencing purposes as per the Youth Criminal Justice Act. The youth record indicates two findings of guilt for simple assault, one finding for possession of a weapon as per section 88(1) of the Criminal Code, and one finding of guilt for failing to comply with a recognizance. Mr. Alvarado received terms of probation for each entry.

[20] The PSR also indicates that Mr. Alvarado had no contact with his biological father growing up. Nonetheless, Mr. Alvarado indicated that he was grateful for the support of the family that he knew. He grew up with his mother and was raised with a Catholic faith. The family was poor and lived on a fixed income. His mother had a relationship with a man that Mr. Alvarado considers to be his stepfather. The relationship lasted for two years when Mr. Alvarado was between eight and ten years old. The stepfather often provided guidance to young Mr. Alvarado. For her part, Ms. Alvarado indicated to the PSR writer that Mr. Alvarado may have observed toxicity within the relationship. Mr. Alvarado was also close to an uncle who was shot and killed.

[21] At the age of 13, Mr. Alvarado had an argument with his mother and left the house. He met an older male who introduced him to the gang lifestyle. Specifically, Mr. Alvarado became associated with the “POW” gang as well as the “Youth Train Gang”. The gang lifestyle involved drugs, money and women but came with dangers as Mr. Alvarado was stabbed on one occasion.

[22] Mr. Alvarado completed Grade 9. CAS was involved due to his school attendance. Mr. Alvarado claims to have worked a total of four days in his life but left that employment due to racism. He has previously been on Ontario Works.

[23] At age 15, the PSR indicates that Mr. Alvarado fell in love and that at age sixteen, Mr. Alvarado became a father. This fatherhood enabled Mr. Alvarado to wedge his way out of the gang lifestyle for a time but the need to provide for his child soon caused him to return. Recently, the relationship with the mother of his child faltered. Mr. Alvarado is in a new relationship.

[24] Mr. Alvarado admitted to the PSR writer that he previously drank and smoked marijuana but claimed that his substance use has not particularly affected his recent life. The PSR writer found Mr. Alvarado to be polite and accepting of some responsibility.

[25] Mr. Alvarado has participated in the Chaplaincy Program while incarcerated and has attended Core Life Skills sessions. He has also undertaken group sessions whereby inmates watch films and discuss life actions including such films as “28 Days” (effects of substance abuse), “What Doesn’t Kill You” (anger management) and the like.

[26] Mr. Alvarado filed several letters of support. The letters originate from family members, his girlfriend and his pastor. They describe Mr. Alvarado as a kind, compassionate and polite person. They describe the incident in question as an unfortunate mistake and Mr. Alvarado’s grandmother apologized for Mr. Alvarado’s behavior. The letters make clear that Mr. Alvarado’s family will support him and they asked that he be given the opportunity to prove himself to society.

[27] Finally, Mr. Alvarado apologized at the sentencing hearing to Mr. Jamieson’s family. The apology appeared sincere and the Crown did not dispute that the apology had a depth of emotional honesty.

POSITION OF THE PARTIES

[28] Mr. Alvarado submits that he ought to receive a global sentence of five years. Such a sentence will balance the needs for deterrence with the other principles of sentencing.

[29] The Crown submits that the appropriate sentence is eight to nine years which is needed to ensure that denunciation and deterrence are given due weight.

ANALYSIS

Principles of Sentencing

[30] The principles of sentencing are outlined in sections 718, 718.1 and 718.2 of the Criminal Code of Canada. It is important to recognize that no single factor mentioned within these sections is to be given too much weight.

[31] When dealing with drug dealers and firearms, deterrence and denunciation are generally primary focuses of sentencing: R. v. Mansingh, 2017 ONCA 68 at para. 24; upholding 2016 ONSC 94 at paras. 17 to 25, 36. Mr. Alvarado submits that these sentencing principles would be adequately addressed with a three-year minimum sentence. He points to R. v. Nur 2015 SCC 15 where the Supreme Court of Canada struck down a mandatory three-year sentence for s. 95(3) offences. Mr. Alvarado submits that para. 82 of the Supreme Court of Canada decision mandates that three years is effectively a maximum sentence for a youthful first-time offender:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. [emphasis added]

[32] An examination of the jurisprudence post-Nur suggests that this paragraph does not limit a sentencing judge from going beyond the three-year mark in circumstances similar to those before me. Indeed, the Court of Appeal of Ontario in Mansingh upheld a 43-month term of imprisonment for possession of a loaded firearm in an apartment complex. In so doing, the Court stated at paras. 24 and 25:

The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender. We observe, as did the trial judge, that the appellant not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child.

The trial judge did not err in principle in the sentence he imposed. The sentence is not manifestly unfit. We cannot interfere. [emphasis added]

[33] It is therefore clear that a sentencing judge may go beyond a three-year sentence for s. 95(3) offences where the circumstances so warrant, even for youthful first offenders. It should also be stated that while deterrence and denunciation must be primary focuses of sentencing, rehabilitation is also a factor to be considered in the instant situation. Mr. Alvarado comes to court as a young man who, while he has entries upon his youth record, has impressed a number of people as being an individual who is attempting to turn his life around. I accept that Mr. Alvarado is sincere in that effort but, given the jurisprudence quoted above, rehabilitation will not be afforded much weight in my analysis.

Mr. Alvarado’s Ethnicity

[34] Mr. Alvarado’s counsel submitted that I ought to consider Mr. Alvarado’s background when I sentence him. Counsel pointed to a recent publication from a criminal lawyer’s organization that described the experiences of young black men within the criminal justice system. Counsel devoted little time to this argument. I was not given a copy of that publication nor were any cases provided to me. Given the absence of evidence and given the fact that I have not been given the literature referred to by counsel, I will not consider this argument save and except to state that I find my colleague LeMay J’s reasoning in R. v. Brissett [2018] O.J. No. 4337 to be persuasive, especially at paras. 61 and 62.

Aggravating and Mitigating Factors

[35] Many of the aggravating features of this case are obvious. They include the following, all of which I accept beyond a reasonable doubt:

1. Mr. Alvarado is a drug dealer;

2. Mr. Alvarado was involved in a fairly intricate organized crime operation that caused him to be driven from Toronto to Sault Ste. Marie to sell cocaine;

3. Mr. Alvarado has a youth record, although it is limited in that there are only four entries upon it and he only ever received probation; and

4. Mr. Alvarado, by definition, used a firearm in the offences committed.

[36] I asked counsel if Mr. Jamieson’s passing was an aggravating feature of the case before me. Counsel both indicated that it was an aggravating feature of the surrounding circumstances of the case. Paragraph 24 of Mansingh makes clear that possession of a firearm in circumstances that import heightened levels of risk demand more elevated sentences.[^1] Presumably, an actualized risk (i.e., the use of the firearm) would thus constitute an aggravating feature of the instant case.

[37] While I recognize the logic of this submission, I do not believe that this logic applies to the instant case.

[38] First, in order to accept an aggravating fact on sentencing, I must accept the given fact beyond a reasonable doubt. There is no question that Mr. Alvarado killed Mr. Jamieson. Of note, however, Mr. Alvarado does not appear to have been charged with any crime associated with the discharge of the firearm: murder, manslaughter, discharge firearm, etc. Certainly, Mr. Alvarado was never committed to trial for any offences associated with said discharge. In the video statement filed as an exhibit, the investigating officer indicated to Mr. Alvarado that any charges would be laid in consultation with the Crown Attorney’s office. Presumably, police sought that advice.

[39] Second, the only evidence I have about what took place during the shooting itself came from Mr. Alvarado’s statement. Mr. Alvarado indicated that he shot backwards towards his assailants because he was afraid for his life. Mr. Alvarado was being robbed at that time and his attackers were using bear mace and a machete. The smell of bear mace and the discovery of the large knife corroborate Mr. Alvarado’s version of events. The trajectory of bullet hole at the scene also corroborates Mr. Alvarado’s version of events.

[40] I am thus effectively required to accept Mr. Alvarado’s confession since:

1. His evidence is the only evidence before me; and

2. His evidence is corroborated in material ways by independent evidence.

[41] Accordingly, I find that Mr. Alvarado believed – and had reasonable grounds to believe – that force was being used against him and that his life was in danger when he fired the gun over his shoulder. He defended himself by shooting at his assailants, which act was reasonable in the circumstances.

[42] As a result of the lack of any charge associated with the firing of the guns and evidence before me, I have no choice but to find that Mr. Alvarado would have availed himself of the “Defence of Person” provisions as described in section 34(1) of the Criminal Code of Canada:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[43] This finding precludes me from using the discharge of the firearm and Mr. Jamieson’s passing as aggravating features on sentencing since the discharge of the firearm was lawful in the circumstances.

[44] It must be stated at this juncture that the loss suffered by Mr. Jamieson’s family, friends and relations is real and is tragic. Reference was made to Mr. Jamieson’s daughter growing up without the benefit of a father. As has been referenced in other cases regarding other issues, this is the kind of terrible circumstance that can have repercussions through generations as youngsters grow up with gaping holes in their emotional well-being. No sentence and no finding of guilt will change this unfortunate fact. Nonetheless, and despite the fact that Mr. Jamieson’s family gave heart-wrenching accounts of their lives since Mr. Jamieson’s passing, as a legal phenomenon, I cannot consider the VIS’s when sentencing Mr. Alvarado.

[45] With respect to mitigating features of the case, I accept the following:

1. Mr. Alvarado is a young man with a young child who is sincerely attempting to turn his life around; and

2. Mr. Alvarado has shown responsibility and remorse not just through his plea of guilt, but also as a result of his apology to the family.

The Sentence

[46] Given the foregoing, I am comfortable that the sentence to be imposed for the s. 95(3) offence is beyond the three-year range described in the aforementioned jurisprudence. Travelling from Toronto to Sault Ste. Marie as part of a criminal organization and using a firearm as deterrence when selling cocaine is an incredibly dangerous undertaking and it must be punished accordingly. Even when I consider Mr. Alvarado’s prospects for rehabilitation and his plea of guilt, a penitentiary sentence in the five-year range is appropriate for the s. 95(3) offence.

[47] Mr. Alvarado will serve a further one-year sentence consecutively on the s. 117 breach. The nature of the breach was flagrant, clearly not a spur of the moment phenomenon whereby an individual finds themselves with a firearm as a result of either inattention or unwitting and fleeting circumstances. This was clearly a concerted effort by the accused to possess the weapon for a criminal purpose in defiance of a court order. This must be punished accordingly.

[48] I am also content that the aggravating factors associated with the narcotics trafficking charge demand a further one-year sentence, to be served consecutively as per R. v. Graham, 2018 ONSC 6817 at paras 43 and 47. While no quantum of cocaine was ever seized, it is clear from the fact that Mr. Alvarado was driven from Toronto to Sault Ste. Marie (a seven or eight hour drive) to sell cocaine that the nature of Mr. Alvarado’s involvement in the drug trade went beyond that of a simple street level dealer selling de minimis amounts of the narcotic in his hometown. Ergo, as Code J. described in Graham at para 47 wherein he adopted R. v. McGill 2016 ONCJ 138, [2016] O.J. No. 1346 at para 54, this is a case where Mr. Alvarado’s involvement in the drug trade demands a reasonably stern sentence.

[49] I also find that Mr. Alvarado is to serve 60 days for breaching his recognizance, concurrent to the sentences to be served on his other charges.

[50] When I examine the total sentence to be imposed in this case and given the principle of totality, it must be said that simply adding the above-referenced sentences together would be somewhat harsh for a youthful offender with a limited youth record. Accordingly, I will impose a sentence for the s. 95(3) offence of 4 years and leave the other sentences as described above.

[51] To date, Mr. Alvarado has spent 380 days in custody which is enhanced at a 1.5:1 ratio, thus equating to 570 days time served. This time will be subtracted from the s. 95(3) charge for the sake of mathematical ease.

[52] Ergo, Mr. Alvarado will receive a global sentence of six years in custody broken down as follows:

1. S. 95(3) – two years and 160 days (with credit for 570 days time served, for a total of four years);

2. S. 117 – one year consecutive;

3. S. 5(2) CDSA – one year consecutive; and

4. S. 145(3) – 60 days concurrent.

[53] I also impose a s. 109 firearms prohibition for life.

Varpio J.

Released: March 31, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ISAIAH ALVARADO

REASONS FOR SENTENCE

Varpio J.

Released: March 31, 2021

[^1]: i.e. In Mansingh, the Court of Appeal referred to the fact that the accused ran from police with the handgun and referenced incumbent the danger to children as being aggravating features of the case.