REASONS FOR JUDGMENT ON SENTENCING

R.F. GOLDSTEIN J.

[1] On April 22, 2022 I sentenced Daniel Papadopoylous in respect of several offences involving an aggravated assault and a firearm. These are my written reasons for sentence.

BACKGROUND AND GUILTY PLEA

[2] On August 10, 2019 Daniel Papadopoylous was outside Filmore’s Hotel on Dundas Street in Toronto. He was with a female, Glavinia Linares. Mr. Papadopoylous became involved with three men who had attended Filmore’s for a bachelor party earlier in the evening. Mr. Papadopoylous had a verbal altercation with Ryan MacNamee. Mr. Papadopoylous hit Mr. MacNamee in the face. Mr. MacNamee fell to the ground, unconscious. Mr. MacNamee’s friends, Reid Gunnerson and Nils Gunnerson, tried to defend Mr. MacNamee. Mr. Papadopoylous left the scene for a few moments, and then returned with a silver handgun. He pointed the gun at Reid Gunnerson’s chest. Bystanders called 911.

[3] Mr. Papadopoylous left the scene. Bystanders saw him interact with Ms. Linares. He began to walk down George Street, south of Filmore’s Hotel. Police officers observed him walking and placed him under investigative detention. Officers searched the immediate area and found a .40 cartridge. Police officers located and arrested Ms. Linares while Mr. Papadopoylous was in police custody. She possessed a silver .40 Para Ordinance handgun, a restricted firearm.

[4] Mr. MacNamee suffered serious injuries. He was initially treated at St. Michael’s hospital for a contusion on his head and a laceration on his lip. When he returned home to Buffalo, he suffered from continuous nosebleeds. He went to the hospital a week later. A CT scan revealed multiple head injuries: fractures to his left orbital bone, left orbital wall, left nasal bone, lateral wall of the left maxillary sinus, and the left cheekbone. The scan also revealed a hemorrhage in his left maxillary sinus. In other words the assault caused significant damage to his head.

[5] Mr. MacNamee also filed a victim impact statement. He described how the physical injury has left him with sinus and other injuries that have made it very difficult for him to properly sleep. He may be required to use a CPAP machine. He may also require plastic surgery. The real damage, however, has been the emotional struggles that he has endured from lack of sleep over time, caused by the injury.

[6] This matter initially came before me as an application to exclude evidence pursuant to s. 24(2) of the Charter. I ruled that some utterances by Mr. Papadopoylous should be excluded, as should some evidence. I ruled that other evidence should be admitted: R. v. Papadopoylous, 2022 ONSC 483.

[7] After my ruling, Mr. Papadopoylous pleaded guilty to the following counts:

Aggravated assault on Ryan MacNamee, contrary to s. 268 of the Criminal Code;
Pointing a firearm contrary to s. 87 of the Criminal Code;
Possession of a restricted firearm knowing he was not the holder of a licence and registration certificate, contrary to s. 92(1) of the Criminal Code;
Possession of a firearm while prohibited from doing so contrary to a prohibition order made in the Ontario Court of Justice on August 17, 2018, contrary to s. 117.01(1) of the Criminal Code;
Possession of a firearm while prohibited from doing so contrary to a prohibition order made in the Ontario Court of Justice on April 5, 2017, contrary to s. 117.01(1) of the Criminal Code.

POSITIONS OF THE CROWN AND THE DEFENCE

[8] The Crown’s position is that Mr. Papadopoylous should be sentenced to a global sentence of 6 years, less pre-sentence custody. He should receive 3 years concurrent on each of the firearms offences, 9 months consecutive for each of the breaches, and 18 months consecutive for the aggravated assault. The Court should also impose a mandatory DNA and s. 109 order, and order forfeiture of the gun. Ms. Gries, Crown counsel, agrees that I should take into account harsh conditions of pre-sentence custody but argues that the amount of credit for lockdown days sought by the defence – a 1:1 ratio – is excessive.

[9] Ms. Palermo, for the defence, takes the position is that I should sentence Mr. Papadopoylous to a global sentence in the range of 5 to 5 ½ years. More importantly, she argues that Mr. Papadopoylous is in a time-served position. Mr. Papadopoylous was arrested on August 10, 2019 and has been in custody on these charges ever since. As of the date of the sentencing hearing, April 14, 2022, Mr. Papadopoylous will have spent about 2 years and 8 months in pre-sentence custody, or 979 real days. Pursuant to s. 719(3.1) of the Criminal Code Mr. Papadopoylous should receive credit of 1.5:1 for each day spent in custody, which equates to 1468.5 days or about 48 months – or four years: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[10] Ms. Palermo further argues that Mr. Papadopoylous should receive enhanced credit for harsh conditions of custody based on lockdowns and the Covid 19 pandemic. She has submitted lockdown records from the Toronto South Detention Centre, where Mr. Papadopoylous has been in custody. As of March 8, 2022, Mr. Papadopoylous had spent 471 days in full or partial lockdown. Mr. Papadopoylous filed an affidavit describing life in an institution under lockdown. He also described what it has been like living in the Toronto South during the Covid 19 pandemic – and it must be remembered that he has spent the entirety of the pandemic at the Toronto South. Mr. Papadopoylous’s description of the conditions at the institution is very similar to other descriptions from other inmates. During lockdowns there is no opportunity to take a shower, move about on the range, exercise, get fresh air, or receive visits from family or counsel. These conditions, of course, have an obvious negative effect on the mental and physical health of inmates. Lack of showers, for example, makes it impossible for inmates to keep clean, which in turn affects their ability to sleep – which in turn affects physical and mental health. During the quarantine Mr. Papadopoylous has also spent much time on what the institution calls “droplet protection”. This means, in essence, that when an inmate indicates that he is ill, the entire range must quarantine. The effect is similar to that of a lockdown – it severely affects an inmates mental and physical health.

[11] I accept Mr. Papadopoylous’s description of the difficult conditions at the Toronto South that he has endured since he has been in custody. I also accept that it has had an effect on his physical and mental health. While it seems right to me, based on his record and the nature of the offence, that he was unable to obtain bail, that does not justify the harsh conditions. This court has emphasized time and time again that pre-sentence custody is not a form of punishment. Inmates are not “getting what they deserve” – they largely enjoy the presumption of innocence. It is, after all, a remand facility. There is no doubt that Mr. Papadopoylous is entitled to credit for harsh conditions: R. v. Duncan, 2015 ONCA 928.

BACKGROUND OF MR. PAPADOPOYLOUS

[12] Mr. Papadopoylous is now 25 years old. He has a criminal record. His record includes two counts of assault causing bodily harm, and a fail to comply. He received suspended sentences and probation for both assault offences (taking into account pre-trial custody).

[13] Mr. Papadopoylous has had very difficult life circumstances. According to a pre-sentence report, he grew up in downtown Toronto and in Malvern. He apparently had an altercation with his mother at age 15. He was arrested. His family refused to bail him out of jail, and he was placed under the care of the Children’s Aid Society. He lived in group homes until he was 18. He has apparently lived on his own since then. He indicated to the probation officer that he was close with his sisters but would not provide any contact information for them as he did not want his family to know his circumstances.

[14] Mr. Papadopoylous had difficulties with school, and essentially stopped attending after Grade 10, although he has some credits. He also has a spotty employment history. It is unclear how he has supported himself. He did tell the probation officer that he would like to pursue a trade. He admitted to smoking marijuana and drinking alcohol but indicated that he did not have a substance abuse problem.

CASE LAW

[15] I was referred to several cases by counsel. I need only refer to a few.

[16] I start with cases of gun possession. In R. v. Brown, 2010 ONCA 745 the offender was arrested as he was entering a car. He pleaded guilty to having a .45 loaded handgun with a round in the chamber hidden in his pants. He was on multiple weapons prohibitions. It was his third conviction for possession of a firearm. He had 34 convictions on his criminal record. The trial judge imposed a global sentence of six years, less pre-sentence custody. On an appeal by the Crown the Court of Appeal found that the sentence was manifestly unfit. The Court substituted a sentence of 7 years, 6 months (less pre-sentence custody) on the firearm possession count, and another year consecutive on the breach.

[17] In R. v. Sangster, 2021 ONCA 21, the offender was found guilty after a trial of pointing a firearm, aggravated assault against a friend, assault causing bodily harm against his girlfriend, possession of a firearm, pointing a firearm, and careless use of a firearm. During the course of a “tumultuous evening” the offender was involved in several fights, stabbed his friend, assaulted his girlfriend, and pointed a shotgun. Police later entered his apartment and seized a shotgun under a mattress as well as ammunition. The trial judge imposed a global sentence of 7 years and 7 months. The offender served about three years and five months of his sentence (including pre-trial custody) before obtaining bail pending appeal. The Court of Appeal admitted fresh evidence regarding his rehabilitation while in the penitentiary and on bail pending appeal. The court reduced the sentence to time served, based solely on the fresh evidence.

[18] Counsel referred me to R. v. Sealy-Ward, 2020 ONSC 55 (21 months less 49 days for possession of a sawed-off shotgun in proximity to illegal drugs in a home, under a mattress); R. v. Nguyen, 2019 ONSC 6358 (global sentence of 44 months for possession of a firearm while on a weapons prohibition; firearm found under a sheet on a couch); R. v. Ellis, 2013 ONSC 3092 (global sentence of five years, eight months for possession of a firearm in the offender’s car while on a weapons prohibition; the offender had a record for previous firearms offences; he was involved in street racing, tried to evade the police, and when cornered abandoned his vehicle – with the firearm in it); and my own case of R. v. Oppong, 2017 ONSC 6684. In that case, Oppong, Thomas, and Thomas-Stewart kidnapped a 16-year old who allegedly stole a gun from the gang. Oppong and Thomas brandished handguns and threatened to kill him. The jury convicted each man of kidnapping, extortion, and other offences with firearms for the benefit or in association with a criminal gang. Oppong and Thomas were also convicted of gun possession. They both had criminal records. I found that Oppong and Thomas were professional criminals. I sentenced Oppong to a global sentence of 11 years; Thomas to a global sentence of 9 years; and Thomas-Stewart to a sentence of 6 years. The Court of Appeal upheld the sentences: 2021 ONCA 352. The sentences given to Oppong, Thomas, and Thomas-Stewart obviously reflect highly aggravating circumstances.

[19] In my view, the most serious gun possession cases are those involving moving about with a firearm in public, or transporting it in public, or abandoning it in a public or semi-public place. That is when firearms pose the most extreme danger to public safety. It is those cases that should attract the highest sentences.

[20] I turn now to aggravated assault cases. In R. v. Tourville, 2011 ONSC 1677, a jury convicted the offender and rejected his defence of self-defence. The offender was aboriginal, and a Gladue report was prepared. He successfully underwent alcoholism treatment. Code J. found that the fight was lawful until the offender began using a knife. Code J. reviewed the ranges of sentence for aggravated assault. He found (and I summarize) at paras. 27-30:

Sentences with exceptional circumstances are at the bottom of the range, and can attract even a suspended sentence.
Sentences in the mid-range where high reformatory sentences are imposed between 18 months and two years less a day. As Code J. stated, “these cases generally involve first offenders and generally contain some elements suggestive of consent fights bug where the accused has resorted to excessive force.”
Sentences at the high end where penitentiary sentences of four to six years have been imposed. As Code J. stated of these cases, they “generally involve recidivists, with serious prior criminal records, or they involve ‘unprovoked’ or ‘premeditated’ assaults with no suggestion of any elements of consent or self-defence.

[21] In R. v. Rai, 2013 BCSC 1826, the offender was intoxicated. He sucker-punched the complainant, who was attempting to break up a fight. The complainant was seriously injured: he lost sight in one of his eyes and was no longer able to work. The offender was sentenced to two years less a day.

AGGRAVATING AND MITIGATING FACTORS

[22] The chief aggravating factor in this case is the nature of the offences. Mr. Papadopoylous brandished a handgun and seriously assaulted a bystander. The most important mitigating factor is that Mr. Papadopoylous has pleaded guilty and taken responsibility for his actions.

SENTENCE TO BE IMPOSED

[23] The most fundamental principle of sentencing is proportionality. A sentence must reflect the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. As the Court of Appeal has repeatedly emphasized, denunciation and especially deterrence are the paramount sentencing principles in handgun cases. The principle of rehabilitation is important, but I am frankly dubious about Mr. Papadopoylous’s prospects after reading the pre-sentence report. I understand that he has the support of his former girlfriend and members of his family, but frankly he needs to adjust his attitude and get his temper under control, or he will undoubtedly find himself back in custody again – which may include tragic consequences for others.

[24] This was a very serious offence. Mr. Papadopoylous brandished a handgun in a busy public place in downtown Toronto. When considering a global sentence, I find that this gun possession case falls at the higher end of the range, especially since the possession is combined with the offence of pointing a firearm. Furthermore, Mr. Papadopoylous assaulted a bystander, causing serious injuries. This behaviour must be strongly denounced with an exemplary sentence. In Oppong, I quoted Nordheimer J. (as he then was) from R. v. Johnson, 2010 CarswellOnt 9357, [2010] O.J. No. 5440 at para. 32:

In my view, the paramount sentencing objectives in this case are denunciation and deterrence. The citizens of this city must be protected from individuals who choose to illegally possess weapons and even more importantly, who choose to use those weapons especially in such a premeditated and merciless manner. Individuals who choose to engage in such behaviour must be given the strongest possible message that such conduct simply will not be tolerated and, if it is committed, it will attract the severest of consequences. Severe consequences are also necessary to serve as a clear deterrent to others who might be inclined to engage in such conduct given the manifest danger that it poses for the lives and safety of other people.

[25] In my view, taking all of the aggravating and mitigating factors into account, including Mr. Papadopoylous’s age and plea of guilty, I find that a sentence of six years is appropriate before pre-sentence custody. I find that a global sentence of six years properly reflects these factors as well as the principles of sentencing.

[26] As of today, Mr. Papadopoylous has spent 987 days in custody. That equites to 1480.5 days with Summers credit of 1.5:1. That is equal to just over 49 months, or about five years and one month enhanced credit.

[27] Credit for harsh conditions can be a matter of mathematical calculation, but it is better treated as a mitigating factor on sentence: R. v. Marshall, 2021 ONCA 344 at paras. 50-53. I find that the harsh conditions in this case are an important mitigating factor. In my view, when the mitigating factor of harsh conditions is deducted from the six years, the proper sentence is one of time served or 5 years and one month. Thus, Mr. Papadopoylous is sentenced time served and probation, as I will explain.

[28] The warrant of committal will read as follows:

Pointing a firearm contrary to s. 87 of the Criminal Code: 3 years, with credit for pre-sentence custody of 3 years;
Possession of a restricted firearm knowing he was not the holder of a licence and registration certificate, contrary to s. 92(1) of the Criminal Code; 3 years, concurrent to the pointing firearm count with credit for pre-sentence custody of 3 years;
Possession of a firearm while prohibited from doing so contrary to a prohibition order made in the Ontario Court of Justice on August 17, 2018, contrary to s. 117.01(1) of the Criminal Code: 18 months, consecutive to the pointing a firearm and possession of a firearms counts with credit for pre-sentence custody of 18 months;
Possession of a firearm while prohibited from doing so contrary to a prohibition order made in the Ontario Court of Justice on April 5, 2017, contrary to s. 117.01(1) of the Criminal Code: 18 months, consecutive to the pointing a firearm and possession of a firearms counts and concurrent with the other s. 117.01(1) count, with credit for pre-sentence custody of 18 months;
Aggravated assault on Ryan MacNamee, contrary to s. 268 of the Criminal Code: 18 months, concurrent to the two 117.01(1) counts, with credit of pre-sentence custody of 18 months, with years probation.

[29] There will be the following ancillary orders:

A DNA order, as aggravated assault is a primary designated offence;
A s. 109 order for life.

[30] There will also be forfeiture of the firearm.

[31] I am also going to put Mr. Papadopoylous on probation. I think it will assist with re-integration into the community. I am not, however, going to impose very strict or stringent terms because I want probation to be an instrument to assist Mr. Papadopoylous rather than an instrument to monitor him and keep him in line. Although I accept that Mr. Papadopoylous has taken courses and availed himself of the limited resources available in custody (and I have reviewed that material) based on the PSR I am not convinced he has yet decided that he needs to embrace rehabilitation, although I was very encouraged by his comments taking responsibility before I sentenced him. That observation notwithstanding, I think we need to try and set him up for success, not for failure.

[32] Accordingly, Mr. Papadopoylous will be sentenced to the following probationary terms:

Keep the peace and be of good behaviour;
Report to a probation officer within 72 hours of release from custody and thereafter as directed by the probation officer;
Take counselling as directed by the probation officer, in particular counselling for anger management, and sign consents or releases to allow the probation officer to monitor progress;
Inform the probation officer of your address and inform the probation officer of any change within 48 hours;
Not to be within 100 meters of Filmore’s Hotel;
Have no contact, directly or indirectly, with Ryan MacNamee, Reid Gunnerson and Nils Gunnerson;
Not to be in possession of any weapons as defined by the Criminal Code.

R.F. Goldstein J.

Released: May 3, 2022

COURT FILE NO.: CR-21-70000-615-0000

DATE: 20220503

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL PAPADOPOYLOUS

REASONS FOR JUDGMENT ON SENTENCING

R.F. Goldstein J.

Released: May 3, 2022

R v Padopoylous, 2022 ONSC 2696

Case Summary

REASONS FOR JUDGMENT ON SENTENCING

BACKGROUND AND GUILTY PLEA

POSITIONS OF THE CROWN AND THE DEFENCE

BACKGROUND OF MR. PAPADOPOYLOUS

CASE LAW

AGGRAVATING AND MITIGATING FACTORS

SENTENCE TO BE IMPOSED

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 1