COURT FILE NO.: 18-8315
DATE: January 18, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Linda Shin and Scott Patterson, for the Crown
- and -
Christopher Marchant and Steven Snively
Jeffrey R. Manishen, for Mr. Marchant
Michael M. DelGobbo, for Mr. Snively
HEARD: October 25, 26, 2021
The Honourable Mr. Justice H. S. Arrell
REASONS FOR SENTENCE
INTRODUCTION:
[1] The accused, Mr. Marchant and Mr. Snively, were both paramedics. They were charged with failing to provide the necessaries of life to Yosif Al-Hasnawi (“deceased”) on December 2, 2017, after he had been shot, contrary to Section 215(3) of the Criminal Code of Canada (“C.C.C.”).
[2] I found both accused guilty as charged after a 33-day judge alone trial. (R. v. Christopher Marchant and Steven Snively, 2021 ONSC 3901). They are now before me for sentencing.
BACKGROUND INFORMATION:
[3] I found as a fact that Yosif, his younger brother Ahmed, aged 13, and a friend Mustafa, aged 15, were outside their Mosque on Main St. in Hamilton chatting during a service they were attending on Friday December 2, 2017.
[4] At some point while talking outside they noticed an elderly man across Main St. walking in an easterly direction. It appeared to these three young men that this elderly gentleman was being harassed by two younger men. Yosif yelled across the street at the two young men to leave the elderly gentleman alone. The two younger men then came across the street and confronted Yosif and the others.
[5] Words were exchanged and one of the two men showed a gun and then sucker punched Yosif to the side of the head. The two men then ran off and Yosif gave chase with his brother and Mustafa following.
[6] According to Mustafa and Ahmed, Yosif was ahead of them and had almost caught up to the two men when one of the men turned around, extended his right hand and he heard a bang.
[7] Yosif was shot at approximately 20:51. The two paramedics arrived at 21:09. He was in their ambulance at 21:15. The ambulance did not leave the scene until 21:32. He was pronounced dead at St. Joseph’s Hospital at 21:58, just slightly more than an hour after he was shot.
[8] The initial dispatch relayed to the EMS dispatcher at 20:59 was, “we have a male that has superficial wounds to his abdomen from being shot with a BB gun, it sounds like.” An identical message was relayed to the fire department, and rescue truck #1 was sent to the scene. That information was passed on over a short period of time to everyone involved and became crucial in subsequent decision making to the detriment of Yosif. Regrettably, the information was incorrect, as Yosif was shot with a 22-caliber hollow point bullet.
[9] Dr. Bulakatina was the pathologist. She found a single penetrating wound to the abdomen. The cause of death was massive blood loss caused by a gunshot to the abdomen with a hollow point 22-caliber bullet that had perforated two high pressure blood vessels, which she opined would never clot on their own. She found two litres of blood in Yosif’s abdomen.
[10] Dr. Bulakatina opined that this type of wound was very lethal with the survival rate between 38-51% at best if treated at a lead trauma hospital. She felt Yosif’s chance of survival at St. Joseph’s Hospital, a non-lead trauma hospital, was 0-18%. She did not feel a blood transfusion anywhere would have helped without surgery to stop the bleeding. She was not surprised that there was no blood visible to the paramedics as all of the bleeding was internal. She agreed that initially Yosif’s vital signs may have been reasonable, but she could give no opinion as to how long that could last.
[11] In essence this doctor was of the opinion that Yosif had, at best, a 50% chance of survival as of the moment he was shot, and the longer it took for him to get treatment at a lead trauma hospital his chances of survival deteriorated.
[12] Dr. Namja Ahmed is an expert in trauma medicine and surgery. She had no expertise in paramedic care. She stated that Ontario has a series of lead trauma hospitals in various areas. The Hamilton General Hospital in Hamilton is the designated hospital for that region and St. Joseph’s Hospital is not such a trauma hospital.
[13] Dr. Ahmed opined that the expertise and resources available in a trauma hospital enhances the survivability rate of seriously injured people such as Yosif. The type of injury he suffered to his abdomen is highly lethal and difficult to control. His only chance of survival was immediate blood replacement and simultaneous surgery to stop the bleeding by an experienced vascular surgeon. The outward appearance would not indicate the depth of the penetration of the wound nor show much exterior blood.
[14] Dr. Ahmed concluded, based on her review of the records, that Yosif’s vital signs were absent at approximately 21:41.
[15] Yosif had a 10-15% chance of survival if he had attended a trauma hospital shortly after having a no vital signs reading. He had a zero chance of survival at a non-trauma hospital under the same circumstances. At best he had only a 50% chance of survival if he had been shot in the lobby of a lead trauma hospital such as the Hamilton General Hospital and got the required care within 15 minutes. Dr. Ahmed agreed that a BB gun injury is usually superficial and would not end up in a trauma hospital. The most significant factor regarding the wound Yosif suffered was that it was penetrating.
[16] Dr. Verbeek is an expert in pre-hospital and emergency medicine. He is currently the medical director at Sunnybrook Hospital and has held that position since 1996. He has also been the medical director for paramedic services at Sunnybrook since 1996.
[17] This doctor testified that the overarching principal based on all the training and government standards for paramedics is to approach every case objectively with an open mind and always assume a worst-case scenario until proven otherwise.
[18] This doctor opined on several serious deficiencies by the offenders in the way they handled Yosif’s care. They somehow concluded Yosif was having some sort of psychiatric issue possibly caused or accentuated by abuse of drugs or alcohol when the real problem, as they were initially told by dispatch, was a penetrating wound to the abdomen and as a result had been assigned the highest code. All paramedics are trained that a penetrating wound to the abdomen is particularly serious because it is impossible to know by an external visualization or external physical assessment the depth or direction of the penetration or the damage caused to internal organs or tissues. The standard of care does not differentiate between guns that caused a penetrating wound, only that if it is a penetrating wound then it is of the highest level of seriousness and means that the patient should be taken to a trauma hospital immediately, which is known as “load and go”.
[19] Yosif was not moved according to the standards and training of paramedics in a gentle manner by way of a log roll onto a back board and loaded onto the stretcher and put in the ambulance. Instead, on one occasion, Marchant and police officer Zezella each picked Yosif up by the wrists to get him to stand and walk to the stretcher. This move was completely contraindicated. Next, the offenders acquiesced in Mahdi, Yosif’s brother and others picking up Yosif by the arms and legs in an attempt to put him on the stretcher.
[20] This doctor further opined that Yosif’s symptoms to any paramedic would indicate a patient who was in severe distress, with level 3 shock, and needed to get to a trauma hospital immediately. That did not happen even though the lead trauma hospital was only five minutes from the scene.
[21] Dr. Croskerry was called on behalf of the defence, as an expert on clinical decision making in health care.
[22] This doctor opined that we all are subject to unconscious biases that influence our decision making. Such biases were at play in the decision making of the paramedics in this case. He testified that two significant unconscious biases were present in this case and held by the offenders although unbeknownst to them:
a) The first was “anchoring bias”, which means that the decision maker fixates on a specific feature and forms an initial opinion, which exerts an overly powerful influence on future decision making, and there is a failure to adjust when new information becomes available.
b) The second was “group think” or group affirmation bias, which means everyone else thinks the same thing and this reinforces the decision maker’s similar impressions.
[23] Dr. Croskerry agreed training, standards and policies for paramedics are in place to eliminate these inherent unconscious biases.
[24] Mr. Marchant is currently 33 years of age. He graduated from his 52-week paramedic course in 2011 He had a short work experience as a paramedic in Newfoundland. He was hired by the Hamilton Paramedic Service (HPS) in 2012 as a primary care paramedic. He confirmed taking all mandatory courses and training each year for his continuing education. He confirmed he was very familiar with all the paramedic standards, legislation, regulations, and protocols. He had never been given any specific training on gunshot wounds and in fact he had never dealt with one prior to December 2, 2017. He also had never dealt with a penetrating trauma to the abdomen. In fact, he testified that he felt there was no penetrating wound based on his assessment. He thought they were strictly dealing with a psychiatric issue, which the evidence showed was best treated at St. Joseph’s Hospital.
[25] Mr. Snively is 55 years of age. He was a physiotherapist for 10 years and then returned to school to become a paramedic. He started his employment with HPS in 2005 as a primary care paramedic. He had attended all necessary continuing education each year of his employment. He confirmed he was familiar with all the standards, legislation and protocols pertaining to paramedics, the care they administered and all the related decision-making principals. He was well aware that a paramedic must assume the worst in any given case until proven otherwise.
[26] Mr. Snively always thought the problems Yosif was displaying were behavioural and he never felt he had a penetrating wound despite being dispatched for a penetrating wound and at a code 4, being the highest urgency.
MY CONCLUSIONS FROM THE TRIAL:
[27] The videos of the scene showed a growing crowd, and a chaotic dark scene. The evidence of numerous witnesses and the videos indicate no one was seizing control of the scene. There appears to be a general lack of urgency by first responders. The move of Yosif by Marchant and Officer Zezella, whereby each grabbed a wrist and attempted the lift Yosif to his feet, is disturbing in its obvious lack of concern or gentleness. The lift by Mahdi and others is equally concerning in its lack of gentleness and its abrupt nature.
[28] The conduct of care Yosif should have received, but did not, was one of pre-hospital emergency medical care as would normally be provided by reasonably prudent paramedics similarly trained as the offenders in circumstances like those found on the night in question by these offenders. See R. v. Javanmardi, 2019 SCC 54, 439 D.L.R. (4th) 579, at para. 38.
[29] I concluded that the offenders’ erroneous belief about Yosif’s wound being non-penetrating and from a BB gun may have been honestly held, but such a belief under the circumstances presented that night was objectively not reasonably held. It was in fact a marked departure from what should have been expected from reasonably trained primary care paramedics, such as the accused were. See R. v. Peterson, 2005 CanLII 37972 (ON CA), [2005] 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 35; R. v. Doering, 2019 ONSC 6360, at paras. 86-88.
[30] I concluded that the actions of the offenders in the care of Yosif amounted to a marked departure from what should have been expected from reasonably trained primary care paramedics in several specific instances, for the following reasons:
a) They failed to conclude Yosif suffered a penetrating wound to the abdomen and thereby treat Yosif’s injury as a “load and go” situation of the highest urgency, which required immediate attendance at a trauma hospital, as per their admitted well-known protocols and training.
b) They acquiesced and participated in three inappropriate lifts of Yosif, also contrary to all of the established protocols and their training.
c) They delayed in leaving the scene.
[31] Both offenders acknowledged in their evidence that a penetrating wound to the abdomen was considered the most serious type of injury, which was also confirmed by Mr. Klassen, retired HPS Deputy Chief, as to the training received by paramedics of the HPS. They knew they could not tell the depth of the wound or the internal damage it might be causing by visualizing it or by any other type of assessment they could do at the scene. That was why they were trained that such a wound was an immediate “load and go” to the nearest trauma hospital. They failed to follow those protocols and their extensive training in that regard and as such deprived Yosif of his only possible chance of survival. They failed to keep an open mind, err on the side of caution, assume the worst and do their own independent assessment, which is what Dr. Croskerry testified paramedics are trained to do to avoid unconscious biases such as group think.
[32] I concluded that Yosif had a penetrating wound and that the offenders’ failure to recognize this and act according to the standards was a marked departure from the minimum standards set and expected of any properly trained paramedic.
[33] I also concluded that as a result of the failure of the offenders to recognize the serious nature of Yosif’s injury and immediately transport him to a trauma hospital, it was objectively and reasonably foreseeable that they were risking his life or would likely cause permanent endangerment of his health.
[34] The standards are clear that there were only three appropriate methods to move a patient at that time: a log roll, fore and aft lift or a sheet pull. In all cases paramedics are trained and expected to move a patient gently and minimize movement. None of these acceptable methods on moving a patient were employed in Yosif’s case.
[35] Both Mr. Klassen and Dr. Verbeek concluded, and I accepted, that paramedics are trained that the only appropriate method to move a patient with a suspected penetrating wound to the abdomen is by log roll onto a backboard. That was not done in the case at bar.
[36] The standards made it clear that paramedics should limit their time at the scene to under 10 minutes unless there are complications from extraction, which was not the case here. It took 23 minutes from the time the offenders arrived until the time they departed the scene.
[37] It was unclear to the court why the offenders concluded a 17-minute wait in the ambulance to do further assessments was necessary, justified or could be of any benefit.
[38] I also concluded that as a result of these various failures by the offenders it was objectively and reasonably foreseeable that they were risking Yosif’s life or permanently endangering his health. See R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 143.
THE DECEASED:
[39] Yosif was 19 years old at the time of his death. He was attending Brock University in his first year in a science program. His family testified that he wished to be a doctor. He lived with his father and his two younger brothers. His father and mother were separated.
VICTIM IMPACT STATEMENTS:
[40] I received victim impact statements from Yosif’s younger brother Ahmed, his father Majed Al-Hasnawi, and Yosif’s mother Amal Alzurufi.
[41] All three family members speak of Yosif as an exceptional young man who was extremely close and attentive to his family. He was the leader in the family that everyone looked up to and sought help and advice from. His parents had great hope in his future career in the medical field. His younger brother considered him his main mentor and confidant.
[42] Yosif’s mother states that she and her son were very close. She will never see him marry, have children or graduate. She is severely depressed, cries constantly and has become very isolated. His younger sisters are suffering by not having Yosif as an older brother and by having to witness the profound sadness of their mother over their brother’s loss.
[43] Ahmed, Yosif’s younger brother, was present that night and watched this tragedy unfold in real time. The effect on him no doubt has been significant. I accept his evidence that his older brother was his role model, mentor and the backbone of the family. I accept that he is depressed, and his schoolwork has suffered.
[44] Yosif’s father Majed has indicated the family has been greatly weakened as a result of Yosif’s death. He was always very supportive and helpful to the family and others. I accept that that is a true characterization of this young man.
[45] I acknowledge the profound sadness and deep loss felt by the family. I also understand that their depression and feeling of loss will be with them indefinitely.
[46] It is clear from this evidence from these individuals that Yosif’s death has had a far reaching and devasting effect on this family as a whole.
COMMUNITY IMPACT STATEMENT:
[47] Amin Al-Tahir, as Director of the Al Moustafa Islamic Centre, provided a community impact statement on behalf of the Muslim Community. He knew Yosif and confirms what his family members said that he was a kind, considerate and a promising young man with a very positive future.
[48] Mr. Al-Tahir also opined on the impact Yosif’s death has had on the Muslim community as a whole. He speaks of how this incident has shaken their confidence that they are safe in Canadian society and has added to their stress level; how it has increased their perception of racial inequities between Muslims and the rest of the community; and added to their feelings of discrimination in Hamilton and indeed the rest of the country.
PRE-SENTENCE REPORTS:
[49] Mr. Snively is now 56 years of age and married with two children aged 18 and 21. He had a harsh upbringing with his father. His parents separated when he was 17. He immediately joined the armed forces and served for three years after finishing high school. He has a good relationship with his mother. He has three siblings that are part of his life.
[50] Mr. Snively obtained employment with the HPS in 2005, where he remained until being terminated as a result of the incident before the court.
[51] An extensive brief of letters of support from family, friends, pastor, colleagues from work and former patients was filed with the court. The court accepts that Mr. Snively loved his job and was considered good at it. He is supportive of friends, by his friends, his church, and the community. He is a devoted family man and he and his wife have a strong marriage, although this incident and the subsequent charge has understandably been very difficult and stressful for them. Mr. Snively found a new job as a loss prevention officer but, as a result of this conviction, that job is to be terminated. The family is struggling financially and his future employment prospects are likely much more limited than prior to this incident.
[52] Mr. Marchant is currently 33. He was 29 when this incident occurred. He had a positive childhood where he enjoyed athletics and excelled academically. He has a very positive relationship with his family. He is separated from his wife. They have two children and a shared custody arrangement. He is actively involved with his children and coaches their various teams. He has been in a serious relationship for the past 1.5 years.
[53] Mr. Marchant attended college to be a firefighter. After one year he decided being a paramedic would be more interesting and enrolled for that program. He graduated in 2011 with high marks and got employment on the east coast. In 2012 he obtained employment with the HPS. He remained a paramedic in Hamilton until his termination as a result of this incident. He has had no regular employment since his termination other than some part time occasional work for a friend in construction. His father advises that as a result he now has significant debt and will have to sell his house shortly. Like Mr. Snively, his future employment prospects will be more limited as a result of this conviction and prior job termination.
[54] The letters of support for Mr. Marchant indicate he has very supportive friends who speak highly of him and his devotion to his children. He also filed notes from work as a paramedic from colleagues and former patients speaking of him in glowing terms as to his job performance.
POSITION OF THE PARTIES:
The Crown:
[55] The Crown submits that the particular facts of this case call for and justify a penalty of incarceration in penitentiary of 2.5 years for each offender.
[56] The Crown argues that as a matter of law the offenders’ actions were a significant contributing cause of Yosif’s death and that causation was therefore proven beyond a reasonable doubt. Causation of death is therefore an aggravating factor that I must consider when deciding proportionality, suggests the Crown.
[57] The Crown further urges the court to find that it has proven uncharged offences in this case under s. 725(c) C.C.C. such as criminal negligence causing death and manslaughter. As a result, according to the Crown, I must consider such uncharged offences as aggravating factors when sentencing, which increases the gravity of the subject offence. The Crown relies on R. v. Theriault, 2021 ONCA 517, at para. 197; R. v. Shin, 2015 ONCA 189, 322 C.C.C. 3(d) 554, at paras. 91-92.
[58] The Crown submits other aggravating factors such as breach of trust under s. 718.2(a)(iii) as Yosif was in the offenders’ exclusive care as their patient. As well, they failed to follow their training.
[59] The Crown also argues that the offenders believed Yosif was faking and this should also be considered an aggravating factor as such a belief increased their moral culpability.
[60] The impact of Yosif’s death on those who were close to him has been significant according to the Crown and that also is an aggravating factor in sentencing.
[61] The Crown urges the court to find that any mitigating factors such as lack of a criminal record, loss of employment, and negative publicity should be given little weight given the lack of remorse set out in the pre-sentence reports.
[62] The Crown submits that denunciation and deterrence are the paramount principles I should apply in my considerations of the appropriate sentence. Equally, the Crown is of the view that a conditional sentence in this particular case is inconsistent and not appropriate with the paramount principles of sentencing, which must take precedent in this case.
The Defence:
[63] Counsel for the Defence recommend a sentence of between six to nine months served conditionally in the community for each of their clients. Both Defence counsel adopted each other’s submissions as their own. Neither offender was acting in a supervisory role over the other on the night in question. They cite very positive pre-sentence reports, substantial community and family support. The offenders have no criminal records and significant community volunteer work. Until this incident they had very positive work records and their paramedic jobs were an important and satisfying part of their lives. They are both devoted to family and especially their respective children.
[64] Defence counsel urge me to find that the pre-sentence reports indicate from various sources that the offenders’ loss of their jobs, reputation and profession has had a profound negative effect on them emotionally and financially. This negative publicity has been very difficult for them and their families.
[65] Counsel argue that both offenders expressed sympathy to Yosif’s family for their loss in their pre-sentence reports but point out it is difficult to express remorse on a plea of not guilty. They also point out that there was no evidence before the court that the offenders did not want to help Yosif, only that they made an objective error in how to accomplish that.
[66] Defence counsel urge me to find that the offenders in this case fit the criteria for a conditional sentence set out in s. 742.1 C.C.C. as discussed at length in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. They cite several cases where such a sentence was imposed that they submit were not dissimilar to the case at bar.
[67] The Defence argues that the cases submitted by the Crown in support of its position have two common themes not found in the case at bar. First, that the accused in those cases inflicted injury on the victims. Secondly, the cases involving failure to provide the necessaries of life involved prolonged abuse or substantial delay in seeking medical treatment.
[68] Defence counsel take significant objection to the Crown’s submissions that causation of death and uncharged offences should play an aggravating factor in sentencing. They point out that the Crown decided to proceed by direct indictment and it chose the charge it wished to proceed with, no doubt for various tactical reasons. It is grossly unfair for the Crown to now argue that uncharged offences play a role in sentencing in this case when it chose the charge. Likewise, they argue the Crown never made submissions at trial regarding causation being a factor, nor did it ever request that the court make such a finding, so of course Defence counsel was not asked to address that issue or to make submissions on it.
[69] According to the Defence, this is a negligence-based offence with a maximum penalty of five years in custody. Clearly Parliament felt this was a less serious offence than those with higher maximum penalties such as criminal negligence causing death or manslaughter, which the Crown spoke of and therefore must be placed in the hierarchy of such offences when sentencing.
[70] The Defence argues that the moral culpability of the offenders must be significantly tempered by my finding of fact that their belief as to Yosif’s injury was honestly held but not objectively reasonable based on the facts before them. They never set out to deal with Yosif in a negligent manner and their unconscious biases were reinforcing their mistake.
[71] The Defence agrees deterrence and denunciation are important factors in sentencing but in this case, there is no need for them to be the primary principles as recommended by the Crown. Instead, says the Defence, proportionality of the moral culpability of the offenders should be the primary consideration of the court.
SENTENCING PRINCIPLES:
[72] Parliament has stated in s. 718 of the C.C.C. that:
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.
[73] The fundamental principle for judges to follow in sentencing is stated in s. 718.1 C.C.C. as follows:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[74] There are no cases on point that either I or counsel have found involving paramedics being convicted of a penal negligence type of offence while acting in their capacity as paramedics.
[75] In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91, Chief Justice Lamer stated that sentencing is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.”
[76] I do not accept the Crown’s position that the appropriate sentence in this case is a penitentiary term of imprisonment. I have concluded based on counsels’ submissions and on all of the cases provided; the unique facts of this case; the circumstances of Yosif and his family; the needs of the community; and the particular factors of the offenders, that the appropriate range of sentence is between two years less a day in custody and a nine-month conditional sentence.
A) UNCHARGED OFFENCES:
[77] I reject the Crown argument that I should consider uncharged offences as an aggravating factor that the Crown alleges have been proven. The Crown submits the elements to prove manslaughter and criminal negligence causing death have been proven beyond a reasonable doubt. The Crown relies on R. v. Theriault, 2020 ONSC 6768, at paras. 76(d) and 109; 2021 ONCA 517 at paras. 196-199.
[78] Under s. 725(1)(c) of the C.C.C., a sentencing judge "may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge". The Crown must prove beyond a reasonable doubt the facts that would establish the guilt of the offenders to those uncharged offences as if they had indeed been charged with such offences: see R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 43-44. Judges can decline to consider uncharged offences if this would result in unfairness to either party: see Larche at para. 46.
[79] The Crown proceeded by way of a preferred indictment and therefore it specifically chose the charge it wished to proceed with. The Crown was well aware of the evidence accumulated against the offenders when it preferred the indictment. It could have laid charges of manslaughter or criminal negligence causing death as in Doering but decided not to for reasons only it is aware of. The Crown made no arguments on the elements of the uncharged offences at trial and as a result Defence counsel made no submissions on those elements. The Defence did not focus its defence on those uncharged offences nor was I asked to rule on them at trial. I have no idea how I might have ruled had those uncharged offences been the focus of the trial. Likewise, the Crown’s argument that the offenders’ actions were a significant contributing cause of Yosif’s death have been proven beyond a reasonable doubt is rejected. An element of this offence was that it was objectively foreseeable that the offenders’ actions endangered Yosif’s life and I so found at para.130 and 144 of the trial decision. The Crown never argued at trial that the offenders’ actions caused or significantly contributed to Yosif’s death. Indeed, causation of death was not a focus of the trial, nor did defence counsel defend on that issue or make submissions on that issue. I decline to rule now that causation has been proven beyond a reasonable doubt.
[80] I conclude the case at bar is very different and distinguishable from Theriault where the trial judge considered the pipe used to seriously injure the victim in sentencing on the conviction of common assault. As the trial judge pointed out “… the Crown theory was always that Mr. Theriault used the metal pole, in addition to his feet and fists, to assault and inflict injuries on Mr. Miller. The case was vigorously defended on this basis and at no time did the Crown abandon the allegation that Mr. Theriault wielded the metal pole…” That is not the case here.
[81] I therefore conclude that I agree with the submissions of Defence counsel on this issue that it would now be fundamentally unfair for the Crown to argue that those uncharged offences are now proven beyond a reasonable doubt and should be aggravating factors.
B) AGGRAVATING FACTORS:
[82] I conclude there are several aggravating factors as follows;
breach of trust;
failure to follow training;
the impact to those close to Yosif.
[83] The Crown submits there are eight aggravating factors. I disagree. I have already dealt with the uncharged offences and causation.
[84] I am not persuaded the offenders believed that Yosif was faking his injuries. The evidence was far from clear on this issue as pointing to the paramedics. Clearly, they did not take the situation as seriously as they should have. They thought Yosif had a psychiatric issue or a substance abuse issue but that is not the same as believing he was faking his injuries.
[85] There were indeed marked departures from the training paramedics were to follow. That is the reason they were found guilty. Similarly, the Crown argues that there were multiple chances to correct the outcome and the offenders failed to take advantage of those opportunities. I agree they did fail to do so and again that is one of the reasons they were convicted and failed to follow their training.
[86] I agree with the Crown that Yosif was completely vulnerable while in the care of the offenders and that fact is part of my consideration of the breach of trust and not a separate aggravating factor.
C) MITIGATING FACTORS:
[87] There are also a number of mitigating factors I must consider as follows:
The offenders have no criminal record;
They have substantial positive support within the community and within their immediate families;
They have excellent work records and have always been contributing members of society:
Each offender has a generally positive pre-sentence report; although remorse has not been shown, this is difficult to express on a not guilty plea as was pointed out in R. v. Valentini, 1999 CanLII 1885 (ON CA), [1999] O.J. No. 251 (O.C.A.) at page 22.
D) DENUNCIATION AND DETERRENCE:
[88] Denunciation and deterrence are sentencing principles, as well as rehabilitation, that I must consider, and I have. I have concluded that specific deterrence is a minor consideration in this particular case. The evidence would indicate these offenders were good at their job and their conduct in their care of Yosif was an anomaly. I am satisfied these offenders will not be before the court again in their lifetime and I am also satisfied they are in no way a danger to the public.
[89] General deterrence is also a factor I have considered. Given the publicity surrounding this case it is inconceivable to this court to conclude that the paramedic community and paramedic services throughout the country are not fully cognizant of the circumstances surrounding this case and its ramifications. I suspect that any further general deterrence is not a major concern in educating paramedics not to ignore their extensive training at all times and if they do there may be serious consequences for them.
[90] Denunciation is an important principle of sentencing and is designed to reflect and uphold communal values as pointed out by Lamer C.J. in R. v. M. (C.A.), at para. 81, as follows:
Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.
[91] My sentence must reflect that society expects that all individuals are entitled to receive a basic level of humane care when treated by paramedics commensurate with their extensive training, skill, regulations and protocols. Society also expects that when trained professionals like paramedics fail to provide such basic care, they will be dealt with strictly by the courts.
E) COLLATERAL CONSEQUENCES:
[92] As was stated in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 46:
As I have observed, sentencing is a highly individualized process: see Lacasse, at para. 54; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; Nasogaluak, at para. 43. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, this Court stated that a sentencing judge must have "sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender" (para. 38). Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.
[93] Collateral consequences may flow from the length of the sentence; from the conviction itself; and the negative emotional, social, or financial consequences to the offender. These consequences are not necessarily aggravating or mitigating factors and do not relate to the level of responsibility of the offender, however, they do speak to the personal circumstances of that person: see Suter, at paras. 47 and 48.
[94] In the case at bar the offenders have lost their employment, they are facing lawsuits seeking significant damages, they are in financial difficulty, their employment to date has been compromised and likely will be into the future. The criminal conviction, negative publicity and notoriety this case has generated against them is understood by the court. The emotional toll on the offenders and their families is well documented in the pre-sentence reports and letters of support from family and friends.
F) PROPORTIONALITY:
[95] Proportionality is the cardinal principal which must guide the fitness of the sentence imposed. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.
[96] These offenders were charged and convicted of failing to provide the necessaries of life. This charge carries a maximum penalty of five years.
[97] The offenders did not set out to injure Yosif or indeed to treat him in a negligent manner. They testified they honestly thought he was not suffering from a penetrating wound. I concluded that was not objectively warranted under all the circumstances. Their moral blameworthiness is significant in not following their training and in the care they provided to Yosif. However, they did not cause the injury. That was done by those who shot Yosif. As a result of that shooting Yosif had a very lethal injury. As was pointed out by Drs. Ahmed and Bulakatina, Yosif had a 50% chance of survival if shot in the lobby of the General Hospital and appropriately treated in 15 minutes. By the time Yosif was shot, 911 was called, and the paramedics were dispatched and arrived on the scene, 18 minutes had elapsed. He had to be put in the ambulance and it would still have been 5 more minutes to travel to the General Hospital. This was a total of at least 23 minutes and likely longer before Yosif could have arrived at the General Hospital under a best-case scenario. A vascular surgeon and a supporting team would then have had to be at the ready to operate. Regrettably, as a result, his odds of survival were limited once he was shot. I accept, however, that whatever limited odds he had were extinguished by the actions of the offenders in the care they provided Yosif and that grounds their moral blameworthiness in this case.
G) COVID-19:
[98] The highly transmissible Omicron variant, at this point in time in Ontario, has caused significant closures. The infections are increasing at an alarming rate. The courts have taken judicial notice that incarceration during COVID is problematic for inmates as well as staff as a result of the inability to separate, vaccinate, isolate, test, properly distance and have ready access to proper PPE. Numerous lockdowns are an ongoing concern as is an absence of staff due to illness. Judges have reduced the length of time served in custody in a number of cases. However, COVID is not a “get out of jail free card”. COVID is a serious consideration and may reduce a sentence, but it cannot make an unfit sentence fit. It permits some deviation from proportionality but cannot sanction that which is truly disproportionate. See Doering, at para. 82.
H) CONDITIONAL SENTENCE:
[99] A conditional sentence can be considered if the court imposes a sentence of imprisonment of less than two years and the criteria in s. 742.1 C.C.C. are met which in this case involves the following:
(a) the court is satisfied that the service of the sentence in the
community would not endanger the safety of the community and
would be consistent with the fundamental purpose and principles of
sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of
imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment,
for which the maximum term of imprisonment is 14 years or life;
(e) the offence is not an offence, prosecuted by way of indictment,
for which the maximum term of imprisonment is 10 years…
[100] As stated earlier in these reasons I have concluded, based on counsels’ submissions and on all of the cases provided; the unique facts of this case; the circumstances of Yosif and his family; the needs of the community; and the particular factors of the offenders, that the appropriate range of sentence is between two years less a day in custody and a nine-month conditional sentence.
[101] The only issue in deciding if a conditional sentence should apply in this case is whether such a sentence “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”. In other words, can the sentencing objectives of deterrence and denunciation be met by allowing a conditional sentence? I have already concluded earlier in these reasons that the balance of the criteria allowing for a conditional sentence have been met.
[102] In R. v. Proulx [2001] 1 S.C.R. 61 at para. 1, the court set out the reasoning of parliament for the conditional sentence as follows:
By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 ("Bill C-41"), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison. In an attempt to remedy the problem of overincarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment.
[103] In Proulx the court stated further at para. 127(9) and (10):
Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the [page129] circumstances of both the offender and the community in which the conditional sentence is to be served.
[104] The courts have stated that even if denunciation and deterrence were the primary objectives in sentencing a sentence of imprisonment is not the only route to achieve them. See R. v. Fabbro, 2021 ONCA 494, at para. 27.
[105] A similar sentiment was echoed over two decades earlier by the same court in R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 33 O.R. (3d) 225, at p. 12, as follows:
In my view, the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect of incarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of general deterrence.
That same court further stated at p. 12:
However, these conclusions suggest that general deterrence is not a sufficient justification for refusing to impose a conditional sentence. In view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence. These effects have been repeatedly noted with depressing regularity.
[106] In respect of the principle of denunciation Wismayer stated as follows at p. 14, which I adopt:
With respect to denunciation, in my view the respondent's submission reflects the misapprehension that societal denunciation can only be expressed by requiring the offender to serve a sentence of imprisonment in custody. The Supreme Court of Canada has explained that this is not so. In R. v. M. (C.A.), Lamer C.J.C. speaking for the full court reviewed the nature of parole. He pointed out that parole is an alteration of the conditions of sentence, rather than a reduction of sentence and that, even while on parole, the offender is subject to strict limits on his or her freedom. In terms that would apply equally to the conditional sentence…
The very same considerations apply to the conditional sentence. The offender's liberty remains significantly curtailed for the full duration of the sentence. The offender is under the strict control of the supervisor and remains under the shadow of incarceration through termination or suspension of the conditional sentence order if he or she reoffends. Most importantly, the goal of denunciation continues to operate for the reasons expressed by Chief Justice Lamer.
CONCLUSION:
[107] Having considered all of the circumstances of this tragic case; the impacts it has had on Yosif’s family; the community in general; the offenders and their families; as well as the principles of sentencing, I have concluded that a term of imprisonment of 18 months is appropriate. I have also determined that this term of imprisonment may be served in the community. In addition to the statutory conditions set out in s. 742.3(1), the offenders shall comply with the following conditions:
Report to a supervisor within five working days after this order is issued.
The offenders will remain on their respective properties at all times for the initial six months of this order except for medical emergencies involving themselves or immediate family members; or for other non-emergency medical care. They may attend employment or appointments with legal counsel as may be approved by their supervisor. They may attend scheduled extra curricular activities of their respective children with the prior approval of their supervisor.
At the end of the first six months and for the balance of this order the offenders shall have a curfew and shall be in their home between 11pm and 6am each day with the exception of attending employment or medical emergencies.
The offenders shall perform 150 hours of community service during the final 12 months of this order as may be recommended and approved by their respective supervisor.
The offenders shall take such counselling as recommended by their respective supervisor and shall execute authorizations allowing their supervisor to obtain the results of such counselling.
[108] The Crown has asked for a DNA order under s. 487.05(3) as this is a secondary designated offence. The Defence is opposed as serving no useful purpose in this particular case.
[109] Having considered the factors in s. 487.051(3), I am satisfied that this is one of the rare cases in which a DNA order would serve little to no benefit to the administration of justice. The onus is on the Crown that it is in the best interests of the administration of justice to require these offenders to provide samples of their DNA. It has not persuaded me. There is no need to deter these offenders from future crime, and there is no reason to believe them responsible for any past crimes. In the absence of any apparent reason to impact their privacy, I decline to make the order. See Doering, at para. 92.
[110] There will be an order under s. 743.21(1) of non-communication for the duration of this sentence of these offenders with the immediate members of Yosif’s family, and those names can be supplied by the Crown to the Registrar.
Arrell J.
Released: January 18th, 2022
COURT FILE NO.: 18-8315
DATE: January 18, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Christopher Marchant and Steven Snively
JUDGMENT ON SENTENCE
Released: January 18, 2022