R. v. Vassal, 2022 ONSC 3696

COURT FILE NO.: CR-21-40000597-0000

DATE: 20220624

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DARNELL VASSAL

Alison MacPherson, for the Crown

Sid Freeman. for Mr. Vassal

HEARD: December 6, 2021, March 17 and 23, April 14, and June 15, 2022

R.F. GOLDSTEIN J.

The Offences

1On October 15, 2020 a dark Mazda 4-door sedan drove into the Toronto Community Housing complex at Shoreham Court. The driver and Darnell Vassal left the car. Mr. Vassal and the driver – who has not been identified before me – wore dark coloured hoodies and had their faces covered. At approximately 9:37 pm Mr. Vassal and the unidentified driver opened fire at two unknown males. The two men then fled the scene. Bullets struck two residences: 9 Shoreham Unit #1, and 5 Shoreham, Unit #1. Residents were present in both residences. A bullet shattered the glass of 9 Shoreham Unit #1, causing the glass to spray all over a resident. That resident received a superficial cut. The police recovered 22 shell casings at the scene. Thirteen of the casings were long, rifle type ammunition. Nine casings were 9mm luger ammunition. Mr. Vassal was arrested on October 30, 2020.

2Mr. Vassal pleaded guilty before me to one count of discharging a firearm with intent to wound, main, disfigure, or endanger the life of an unknown victim, contrary to s. 244(1) of the Criminal Code. He also pleaded guilty to two counts of possessing a firearm while prohibited from doing so, contrary to s. 137 of the Youth Criminal Justice Act. The discharge firearm count carries a maximum penalty of 14 years and a minimum penalty of five years for a first offence.

3Crown and defence counsel have jointly submitted that I should impose a global sentence of five years on Mr. Vassal. The main point of contention is how to allocate the pre-sentence custody.

Mr. Vassal’s Background

4Mr. Vassal is a very young man. He has just turned 20 years old. When he was arrested on these latest charges he was only 18. He has had significant troubles in his young life. He has been living with his father, his step-mother, and three step-siblings. He has been diagnosed with ADHD. He has only finished Grade 8 – which may be related to his ADHD. Mr. Vassal has done some schooling while in custody, and he has finished just over half the credits he needs to complete high school. Unfortunately, he is on a waitlist for more schooling while in custody. Mr. Vassal also suffers from a respiratory illness and requires a puffer.

5Unfortunately, Mr. Vassal has collided early and often with the criminal justice system. He has a Youth Criminal Justice Act record. On January 14, 2019 he was found guilty of possession of a loaded prohibited or restricted firearm for which he was sentenced to 12 months probation in light of 225 days of pre-sentence custody; and attempt to commit an indictable offence for which he was sentenced to 50 hours of community service in light of 15 months of pre-sentence custody. He was placed on a weapons prohibition for 2 years. On January 16, 2020 Mr. Vassal was convicted of two counts of armed robbery using a firearm. He was sentenced to concurrent sentences of community supervision in light of 476 days of pre-sentence custody. He was placed on a second weapons prohibition.

6As can be seen, Mr. Vassal has unfortunately spent a significant amount of his young life in jail.

Impact On The Victim and the Community

7The Crown has not filed victim impact statements, but it takes little imagination to consider the terror that Mr. Vassal inflicted on the residents of Shoreham Court. Two different residents experienced gunshots passing through their homes. One experienced glass shattering all over him. I do not doubt that these residents were traumatized by the events.

8Moreover, gun offences such as this one inflicts great harm on the community. This city has suffered from a plague of gun violence in recent years. Homicides are up. Homicides by shooting are up. Random shootings terrify residents. Random shootings, and gun violence in general, undermine the sense of safety that a thriving community requires to grow and provide a decent life to its citizens. When someone like Mr. Vassal fires a gun at a house he makes things worse for everyone around him, even if he never hits anyone.

Aggravating And Mitigating Factors

9The chief aggravating factors in this case are Mr Vassal’s criminal record and the nature of the crime itself. Three of Mr. Vassal’s four youth convictions involve firearms, and he now is involved with firearms again. This case, involving an actual shooting, is even more serious. The nature of the offence itself is seriously aggravating. Mr. Vassal fired a gun at two unknown people, completely heedless of the risks to bystanders. That behaviour is reckless and terrifying. People could easily have been tragically killed – and Mr. Vassal might have found himself facing a murder charge.

10The mitigating factors in this matter are the guilty plea and Mr. Vassal’s youth. A guilty plea is, of course, an expression of remorse. It is a message to the community that Mr. Vassal acknowledges the crime and takes responsibility. His youth, and the problems that he has had, are also mitigating factors.

11Ms. Freeman also argues that race and the COVID-19 pandemic are both risk factors that should be taken into consideration as mitigating factors. Ms. Freeman filed a report of the Correctional Investigator regarding the Black experience in federal penitentiaries. The report is somewhat dated – it was published in February 2014 – but some comments are noteworthy. Among the key findings (and I quote directly):

• Black inmates are released later in their sentence (lower parole grant rates) and are less likely to be granted temporary absences.

• Discrimination is a commonly reported experience among Black inmates interviewed and it often acts as a barrier to prison employment, alienates and isolates them from full participation and reinforces feelings of differential treatment.

• Black inmates face stereotyping by CSC personnel that often labels them as gang members. Behaviours, actions or spoken communication of all Black inmates appear to be assessed through a ‘gang lens’.

• CSC has not met the requirements set out in CD 767 - Ethnocultural Offenders: Services and Interventions. The CD specifically directs CSC management to build and maintain partnerships with communities and organizations to help respond to the needs of ethnocultural offenders. This review found that partnerships with Black community groups and organizations were limited or in most cases, non-existent.

• Despite being rated as a population having a lower risk to re-offend and lower need overall, Black inmates are more likely to be placed in maximum security institutions.

• Black inmates are more likely to incur institutional charges; less likely to be employed, particularly in jobs of ‘trust’ or with CORCAN; they are over-represented in segregation placements; and, disproportionately involved in use of force incidents.

• Interestingly, despite disproportionate treatment, Black inmates are generally less likely to be readmitted on a new federal sentence while on parole or statutory release. Readmission rates for Black inmates after warrant expiry are also better.

12Ms. Freeman also filed extensive material indicating that COVID-19 has had a disproportionate impact on people of colour. For example, a study tracking COVID-19 through race-based data in Ontario found that inequitable health outcomes were generated by the pandemic. The study found that between June 2020 and April 2021 Black Ontarians had 4.6 times as many confirmed COVID-19 cases as white Ontarians. The study suggested that marginalized communities have poorer access to health care. That, in turn (and other factors) drove higher rates of infection in Black and other racialized communities. An early study from Public Health Ontario in May 2020 found that social determinants of health, including race and ethnicity, played a large role in the risk of infection. Other studies filed by Ms. Freeman from the United States and the United Kingdom suggest that Ontario is not an outlier in this regard. I accept for the purposes of sentencing that the COVID-19 pandemic has had a disproportionate effect on Black people. It is indisputable that Mr. Vassal has been in custody for much of the pandemic. Virtually all cases that have dealt with this issue have found it to be a mitigating factor. For example: R. v. Nunziato, 2021 ONCA 300 at para. 7; R. v. Marshall, 2021 ONCA 344 at para. 50; R. v. Baldwin, 2021 ONSC 7025 at para. 69-70; R. v. Young, 2022 ONSC 1143 at para. 38-40.

13In my view, it would be better if material had been filed indicating the specific effects of both race and COVID-19 on Mr. Vassal: R. v. Duncan, 2016 ONCA 754 at paras. 6-7. That said, given the persistent presence of institutional racism within our society, I accept that some or all of these findings are likely to be valid: R. v. Morris, 2021 ONCA 680. I therefore accept that they have generally affected Mr. Vassal, a young Black man, although I cannot be certain of the exact effects.

14Mr. Vassal has also experienced multiple lockdowns while in custody. While in the Thunder Bay Jail he had no yard opportunities. There were 145 occasions where the jail “was not functioning problem free”. Mr. Vassal was also an inmate at Central North Correctional Centre in April and May 2021. During that short period of time there were 12 lockdowns, mostly caused by staff shortages. Since May 29, 2021 Mr. Vassal has been housed at the Toronto South Detention Centre. Between May 29, 2021 and March 11, 2022 Mr. Vassal experienced 180 full and partial lockdowns according to TSDC records. Since March 22 2022 his counsel, Ms. Freeman, has advised the Court that he has been locked down on multiple occasions since.

15I accept that the frequent lockdowns have affected Mr. Vassal. The frequent lockdowns are also a mitigating factor. As the Court of Appeal had this to say in R. v. Bristol, 2021 ONCA 599 at para. 11:

Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit.

Principles Of Sentencing Applicable In This Case

16The key principles of sentencing in a case such as this, involving the discharge of a firearm, are denunciation and deterrence. The imposition of a mandatory five-year minimum reflects Parliament’s intention that sentencing judges impose significant denunciatory sentences where firearms are used. As a society, we take a very hard view of those who wield these most dangerous of weapons. As a judge sitting in Toronto, I constantly see the harm inflicted by those wielding guns in an unthinking, reckless way – as Mr. Vassal did. Given Mr. Vassal’s youth, the principle of rehabilitation of course must play a role, but it must largely take a back seat to other sentencing principles.

The Joint Submission

17In this case, the five-year joint submission reflects the principles of denunciation, deterrence, and rehabilitation. It is, of course, a mandatory minimum. Given Mr Vassal’s significant criminal record that already includes firearms convictions – and the fact that this offence was convicted while on firearms prohibitions – I would be considering a much stiffer sentence were it not for his age and guilty plea. Thus, I agree with the joint submission and will impose a global five-year sentence.

Credit For Pre-Sentence Custody

18The real question in this case is the allocation of pre-sentence custody. As of today, Mr. Vassal has served exactly 600 real days in custody. Pursuant to s. 719(3.1) of the Criminal Code, where circumstances justify it an accused person may be credited with 1.5 days for every day spent in custody: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 175. Of course, virtually all prisoners are routinely credited with what is called Summers credit. Thus, Mr. Vassal is credited with 900 days, or 30 months, or 2 ½ years. In the absence of any further credit he must serve another 30 months, or 2 ½ years.

Can Mr. Vassal Receive Duncan Credit Where There Is A Mandatory Minimum?

19Mr. Vassal has spent much of his time in custody under lockdown. He has also been in custody during the COVID pandemic. This, of course, has affected his time in custody. The Crown’s position is that where a mandatory minimum sentence is imposed, no Duncan credit is available. After hearing submissions, and considering the issue, I asked counsel for further submissions.

20Ms. Freeman argues that I should credit Mr. Vassal with sufficient Duncan credit that he ought to serve 2 years less a day in the reformatory. As noted, Ms. Freeman filed material regarding the experience of Black prisoners in the federal penitentiary system. She also filed information regarding the correlation between race and health risks, particularly risks associated with the COVID-19 pandemic, as I have mentioned. She argues that being a person of colour is in and of itself a risk factor. Moreover, it is simply too harsh to send a young man who entered the system at age 18 to the penitentiary.

21Ms. Freeman further argues that the Supreme Court of Canada’s decisions in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 is a complete answer to the Crown’s argument that Duncan credit is not available in cases of mandatory minimum sentences.

22Ms. MacPherson, for the Crown, argues that the five-year sentence itself reflects the harsh conditions: R. v. Duncan; R. v. Marshall, supra. As the Court of Appeal made clear in Marshall, pre-sentence custody is not always susceptible to a mathematical formula. It is better treated as a mitigating factor on sentence. Moreover, given that Mr. Vassal faces a mandatory minimum, the most credit he can get is 1.5:1 Summers credit. She argues that Mr. Vassal is required to serve the full 30 months. In particular, Ms. MacPherson argues that Parliament has stated that the mandatory minimum of five years reflects a fit sentence for discharging a firearm. Summers credit at 1.5:1 already reflects harsh conditions of custody. Thus, to go below what Parliament has specifically mandated would result in a sentence that would not be fit. She relies on this passage from Marshall at para. 52:

The "Duncan " credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan " credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

23I find myself in respectful disagreement with the Crown’s position. I do not interpret Marshall to prohibit taking harsh conditions into account when considering pre-sentence custody in cases with mandatory minimum sentences.

24In Wust the accused pleaded guilty to robbery with a firearm. That offence carried a mandatory minimum sentence. The issue was whether the discretion available to a sentencing judge to credit pre-sentence custody in s. 719(3) of the Criminal Code was available in cases of mandatory minimum sentences. Sections 719(3) states:

719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

25Section 719(3.1) has since been added to the Criminal Code:

719 (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

26Arbour J. for the Court determined that if sentencing judges could not take pre-sentence custody into account, it would result in unjust sentences. She found that a strict interpretation of s. 344(a) when combined with s. 719(3) might have compelled a judge not to take pre-sentence custody into account. She went on, however, to say at paras. 21-23 (I include excerpts):

Even if it can be argued that harsh, unfit sentences may prove to be a powerful deterrent, and therefore still serve a valid purpose, it seems to me that sentences that are unjustly severe are more likely to inspire contempt and resentment than to foster compliance with the law…

Consequently, it is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing…

In accordance with the umbrella principle of statutory interpretation expressed by this Court in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at paras. 20-23, mandatory minimum sentences must be understood in the full context of the sentencing scheme…

27Arbour J. went on to find at paras. 28 and 44 that it would be fundamentally unfair if sentencing judges could not take credit for pre-sentence custody into account:

In addition, and in contrast to statutory remission or parole, pre-sentence custody is time actually served in detention, and often in harsher circumstances than the punishment will ultimately call for.

If this Court were to conclude that the discretion provided by s. 719(3) to consider pre-sentencing custody was not applicable to the mandatory minimum sentence of s. 344(a), it is certain that unjust sentences would result. First, courts would be placed in the difficult situation of delivering unequal treatment to similarly situated offenders: for examples, see McDonald, supra, at pp. 80-81. Secondly, because of the gravity of the offence and the concern for public safety, many persons charged under s. 344(a), even first time offenders, would often be remanded in custody while awaiting trial. Consequently, discrepancies in sentencing between least and worst offenders would increase, since the worst offender, whose sentence exceeded the minimum would benefit from pre-sentencing credit, while the first time offender whose sentence would be set at the minimum, would not receive credit for his or her pre-sentencing detention. An interpretation of s. 719(3) and s. 344(a) that would reward the worst offender and penalize the least offender is surely to be avoided.

28In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 the Supreme Court determined that actions by state actors can be taken into account when crafting a sentence. The Court found that the use of excessive force was a violation of the accused’s right to life, liberty, and security of the person. Excessive force could be taken into account when considering the circumstances of the offender and could lead to a reduced sentence. My colleague Pomerance J. distilled the concept to its essence in R. v. Hearns, 2020 ONSC 2365, at para. 19:

• A collateral consequence includes "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender";

• "The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances"; and

• There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing.

29The Supreme Court made the point explicitly in R. v. Pham, 2013 SCC 15 at para. 11 regarding the potential immigration consequences of a particular sentence. Obviously, the weight to be given to any particular collateral consequence will depend on the case.

30Sentences must be fit – but what is a fit sentence in a case involving mandatory minimums? As Pomerance J. observed in R. v. Hearns, proportionality and fitness of sentence are not co-extensive. Proportionality refers to the concept that a sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Fitness looks to the broad range of factors that go into the sentencing process. The factors can include harsh conditions of custody. Those conditions may justify a departure from the usual range of sentence: Hearns at para. 16 and 17, referencing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 58.

31Failure to consider the collateral consequences could result in a sentence that is not fit because it might violate principle set out in s. 718.2(b) of the Criminal Code. That is the principle that sentences should be similar for similar offenders who commit offences under similar circumstances. Consider two similarly situated offenders, each charged with discharging a firearm with intent to wound, main, disfigure, or endanger life, contrary to s. 244(1) of the Criminal Code. One offender, like Mr. Vassal, is detained in custody because he does not have a good surety. Another has a good surety and receives bail. The detained offender (like Mr. Vassal) spends, say, 18 months in custody and then is found guilty. He is credited with 27 months in custody at the rate of 1.5:1. His warrant expiry date is 33 months away. An offender who has received bail has a warrant expiry date 60 months away. The difference, however, is that for 18 months, one offender was on bail and (even if on house arrest) had a degree of freedom and comfort. That offender could potentially take steps, such as education or employment, to achieve a degree of rehabilitation. The detained offender, in contrast, had little opportunity to work on rehabilitation – rehabilitative programs and opportunities in remand centres are certainly not of the same quantity or quality as those in federal penitentiaries. Moreover, if an offender spent time in a remand centre with high rates of lockdowns (and consequent denial of basic things such as showers and fresh air) the contrast with the offender on bail would be even greater. Add in the effects of the pandemic, which have been felt very keenly in jails, and you have a recipe for extremely harsh conditions of pre-sentence custody.

32As the Court of Appeal made clear in Duncan at para. 5, a sentencing judge may give credit for particularly harsh conditions of pre-sentence custody beyond the 1.5:1 set out in s. 719(3.1) of the Criminal Code (I set out excerpts):

We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution.

33The Court in Duncan went on to note that offenders cannot simply reap credit; they must also provide evidence of the effect of the harsh conditions on them.

34In my view, the rationale in Wust applies to mandatory minimum sentences. I say that for two very basic reasons. First, refusal to grant credit for harsh conditions of custody will likely result in unjust and disproportionate sentences. And second, no principle of statutory interpretation requires the imposition of an unjust sentence.

35It cannot have been Parliament’s intention that courts impose sentences that are unduly harsh – in other words, unjust sentences. Indeed, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is that: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” An unjust sentence would obviously disproportionate.

36With respect, I do not interpret Marshall as restricting credit for harsh conditions of custody to cases that do not involve mandatory minimums. The basic thrust of Marshall is that Duncan credit cannot be used to impose an unfit sentence. The issue of credit for pre-sentence custody in cases of mandatory minimums was not directly before the Court in Marshall, but I cannot imagine that the Court of Appeal would have endorsed a principle of sentencing that required imposing a disproportionate sentence. Moreover, I cannot agree that the Court of Appeal’s decision in Marshall should be interpreted as a departure from Wust. As Marshall stressed, a disproportionate sentence can be one that is too lenient. But it can also be a sentence that is too harsh.

Sentence Imposed And Ancillary Orders

37As I have noted, Mr. Vassal as of today has served 30 months after credit for time served based on 1.5:1. A credit for six months of harsh conditions of custody is appropriate in this case. That means Mr. Vassal has another approximately 24 months left to serve. The question then becomes whether Mr. Vassal should be sentenced to the penitentiary or to the reformatory. Ms. Freeman, his counsel, suggests that a sentence of two years less a day is appropriate for the reasons I’ve already mentioned. I agree, for these reasons:

• Mr. Vassal is still incredibly young – he is just 20 years old. He has been in custody on these charges since he was 18.

• A five year global sentence is a fit sentence.

• The court may grant credit at 1.5:1 to Mr. Vassal, as per Wust and Summers.

• Treating the harsh conditions of custody as a mitigating factor is in accord with Duncan, and limiting the credit such that Mr. Vassal serves a sentence of two years less a day going forward does not violate the principle in Marshall. That is still very much a fit sentence, in my view.

• A sentence of two years less a day going forward is one that takes into account the principles of general and specific deterrence and balances the aggravating and mitigating factors. A sentence of two years less a day going forward also gives effect to Parliament’s intent that there be a five year mandatory minimum, while also giving effect to Parliament’s intent that sentences reflect the gravity of the offence and the moral culpability of the offender.

38Accordingly, I sentence Mr. Vassal to a global sentence of five years. With credit for time served, he will be sentenced as of today to two years less a day in the reformatory. The sentence will be broken down as follows:

Count 1

39Discharge firearm with intent to wound, maim, or disfigure contrary to s. 244(1) of the Criminal Code: 5 years with credit for time served of 3 years and one day, time left to serve 2 years less a day;

Count 5

40Possession of a firearm while prohibited from doing so, contrary to the Youth Criminal Justice Act: 6 months, concurrent to Count 1, credit for time served so one day in custody.

Count 6

41Possession of a firearm while prohibited from doing so, contrary to the Youth Criminal Justice Act: 6 months, concurrent to Count 1 credit for time served so one day in custody.

42There will also be an order that Mr. Vassal provide a sample of his DNA.

43Finally, there will be a weapons prohibition for 10 years pursuant to s. 109 of the Criminal Code.