COURT FILE NO.: CR-19-9063
DATE: 20220915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT HUSBAND
Defendant
Javier Arvizu, for the Crown
Robert Husband, Self-Represented
HEARD: June 30 and July 11, 2022
REASONS FOR SENTENCE
MCKELVEY J.:
Introduction
[1] The defendant, Robert Husband, has been found guilty of the following offences:
That on or around the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did, without lawful excuse, possess a loaded restricted firearm, to wit: a Walther handgun, while he was not the holder of an authorization or a licence under which he may possess it in that place and a registration certificate for the firearm, contrary to s. 95, ss. (1) of the Criminal Code.
And further that on or about the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did intentionally discharge a restricted firearm, while being reckless as to the life or safety of another person, contrary to s. 244.2, ss. (1) of the Criminal Code of Canada.
And further that on or about the 11th day of October in the year 2019 at the City of Richmond Hill in the Regional Municipality of York did, without lawful excuse, possess a firearm, while he was prohibited from doing so by an order pursuant to s. 109 of the Criminal Code, made on the 27th day of September, 2005, contrary to s. 117.01, ss. (1) of the Criminal Code.
[2] The defendant now comes before this Court for sentencing on these offences.
Backgrounds Facts
[3] On October 11, 2019, Mr. Husband broke into a black Nissan Murano vehicle. He had in his possession at that time a Walther Creed, semi-automatic 9mm pistol together with approximately $6,500 in cash. Mr. Husband had stolen the firearm the previous night as he was staying with individuals he was concerned intended to rob him. In addition, Mr. Husband had consumed, "a couple of smashes of coke".
[4] Witnesses to the incident recalled hearing three or four consecutive gunshots come from the black Nissan vehicle. Mr. Husband was then seen leaving the Nissan vehicle and tried to get into other vehicles. Subsequent investigation revealed that Mr. Husband left the firearm in the Nissan vehicle together with some of the cash and some prescription bottles which included his identity.
[5] Subsequently, police arrived on the scene and were able to arrest Mr. Husband who has been in custody since the date of the incident.
[6] Clearly the most serious charge against Mr. Husband is the offence under s. 244.2(1) of the Criminal Code which provides that every person commits an offence who intentionally discharges a firearm while being reckless as to the life or safety of another person.
Applicable Legal Principles
[7] The principles of sentencing are set out in s. 718 of the Criminal Code which provides as follows:
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.
[8] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[9] Under s. 718.2(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[10] Mr. Husband has identified himself as an Aboriginal offender in the present case.
[11] In their decision in R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal notes that s. 718.2(e) is remedial in nature and is intended to remedy the acknowledged overuse of incarceration as a criminal sanction in Canada. At para. 121 of their decision the Court notes that Aboriginal offenders have been singled out for the purposes of the application of the restraint principle described in s. 718.2(e).
[12] As noted at para. 61 of the Morris decision, proportionality is a fundamental and overarching principle of sentencing. It refers to jurisprudence from the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 where the Court stated at para. 37:
The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[13] As noted in the Morris case, an assessment of the gravity of seriousness of the offence is one part of the proportionality analysis. The seriousness of the offence is reflected in the essential elements of the offences and the more harmful the prohibited conduct, the more serious the crime.
[14] When the gravity of the offence demands an emphasis on the objective of denunciation and deterrence, the proportionality principle will most often require a disposition that includes imprisonment.
[15] At para. 71 of the Morris decision, the Court notes that apart from the specific provisions in the Criminal Code, Canadian courts have long recognized that the gravity of certain kinds of offences require sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category.
[16] At para. 77 of the Morris decision the Court notes as well that it is important to preserve the distinction between factors relevant to the seriousness or gravity of the crime on the one hand, and factors relevant to the offender's degree of responsibility on the other. Unless the distinction is maintained, the proportionality principle may be misapplied. A sentence which wrongly discounts the seriousness of the offence to reflect factors which are actually relevant to the offender's degree of responsibility, would almost invariably produce a sentence that does not adequately reflect the seriousness of the offence, and therefore fails to achieve the requisite proportionality.
[17] At para. 116 of the Morris decision the Court acknowledged that systemic and background factors, including institutional biases and discrimination, could play a role in determining the Indigenous offender's degree of moral responsibility for the crime. In addition, the unique cultural and historical factors, which shaped Indigenous attitudes toward crime and punishment, could have an effect on the selection of the sanction which best achieves the purposes of sentencing as laid down in s. 718.
Position of the Parties
[18] The Crown takes the position that an appropriate sentence for Mr. Husband for the s. 244.2 offence is 10 years. In addition, the Crown submits that the appropriate sentence for the s. 117 offence is 2 years to be served consecutively. The Crown accepts that there should be some reduction in the sentence to reflect the time Mr. Husband has spent in custody as well as a Duncan credit for the difficult conditions he has faced while in custody. The Crown also accepts that there should be a reduction for the Charter breaches which I found and which are set out in my decision of June 6, 2022. Taking these additional factors into account, the Crown seeks a sentence of 38 months for the s. 244.2 offence and 12 months consecutive for the s. 117 offence for a total of 50 months net additional custody. This represents approximately 4.16 years of additional custody.
[19] The defendant who represents himself in this case refused to participate in a Gladue Report. He has suggested that on the s. 244.2 offence, a sentence of 5 years subject to deductions would be appropriate as well as 18 months consecutive for the conviction on Count 3, together with 8 months probation and community service.
[20] Both parties agree that the sentence under Count 1 should be served concurrently to the other two sentences.
Ancillary Orders
[21] The Crown seeks a number of ancillary orders against Mr. Husband as follows:
The Crown seeks an order under s. 109 of the Criminal Code prohibiting the defendant from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. The requested order is for life.
In addition, as the offence is designated as a primary designated offence under s. 487.04 of the Criminal Code, the Crown seeks an order under s. 487.051 for the defendant to provide a sample for DNA analysis.
[22] I find that these ancillary orders are appropriate in this case and they will, therefore, form part of Mr. Husband's sentence.
Circumstances of the Offender
[23] Mr. Husband is 46 years old and has a lengthy criminal record. Following are some of the highlights of that criminal record:
1994 – Convicted for theft over $1,000, dangerous operation of a motor vehicle, failure to appear and possession of property obtained by crime.
1995 – Initially convicted of second-degree murder which was varied on appeal in 1997 to manslaughter. He was given a sentence on appeal of 7 years following 3 years in custody pending his appeal.
2005 – Convicted of robbery, break and enter and theft, as well as disguise with intent and attempt to obstruct justice. Mr. Husband was sentenced to four years plus two years consecutive. In his submissions, Mr. Husband notes that he received a global sentence of 7 years as opposed to what has been recorded. He also states that he served 10 months in pre-trial custody which he was not given credit for.
2010 – Mr. Husband was convicted of being unlawfully at large and given a 90 day sentence consecutive to the unexpired portion of his earlier sentence.
2010 – Mr. Husband was convicted of being a statutory release violator and was recommitted.
2015 – Mr. Husband was convicted of break and enter with intent. According to his records he was given 30 months on each charge concurrently.
2015 – Mr. Husband was convicted of possession of a prohibited or restricted firearm, unauthorized possession of a firearm in a motor vehicle, possessing a firearm knowing that its possession is not authorized, possession of a firearm contrary to a prohibition order, possession of property obtained by crime and proceeds of crime. According to the Crown he was given a 2.5 year sentence but pre-trial custody is noted at 2 years. According to Mr. Husband, however, he received a global sentence of just over 9.5 years minus 2 years pre-trial custody.
[24] In addition to the above, Mr. Husband is a repeated parole violator and at the time of the offences before this Court, Mr. Husband was on parole.
[25] Mr. Husband has identified himself as being Indigenous, but has refused to participate in the preparation of either a Gladue or Pre-Trial Sentence Report. Mr. Husband's stated reason for declining to participate in these reports is that he did not want the delay in sentencing which would result from preparation of these reports.
[26] In submissions, however, Mr. Husband advised that his mother is half Aboriginal. His father is not Aboriginal. His mother did not attend a residential school and the family did not live on a reservation.
[27] Mr. Husband had a very challenging childhood. He described it as follows:
I was born in Sault Ste. Marie, Ontario. My father was not there when I was born, and my grandmother sent my mother and me to a convent. My mother married my step-father when I was 3 years old. When they married my parents changed my name illegally and had me enrolled in school under my step-dad's name Greenwood. I was physically and emotionally abused by my step-father and feared he would one day kill me. He never adopted me and I would not come to learn he was not my real dad until I was 10 years old, only a few short months after I was molested by our next door neighbour. I began drinking alcohol a short time later, and drugs came soon after.
I was kicked out of my parents home at the age of 14 years old. I was homeless for my first summer and had to stay with friends or live in a tent. I became a ward of the Children's Aid Society when I was 14.5 years old, but they just provided me with an independence allowance and left me to my own demise.
I was made to believe that I was just a bad kid when in fact I suffered from ADHD and had difficulty functioning in a classroom studying, and still do. They did not know much about ADHD when I was young and I did not have access to the same treatment that is available to kids today. My teacher from grade 4 to grade 7 used to pick me up when I was still seated in my desk and would throw me down the hallway and would make me stay there the whole day.
[28] Later, Mr. Husband states,
There are charges I have plead guilty to that I have never committed, there are also crimes that I have gotten away with over my lifetime. I am not proud of any of the chaos I have caused in my emotional meltdowns and I am deeply sorry for any pain I have caused. I know far too well what pain and suffering feels like because I am the victim of several violent and sexually violent crimes myself. When I see other victims of violent crimes getting support and I don't have access to the same supports it makes me feel worthless in that I somehow deserve the things that happen to me.
Then I meet some amazingly wonderful people and they tell me that I am worth it and that I need to learn how to talk about my feelings and let people in. They smile when they see me and are actually genuinely happy to be a part of my life. They are happy because I treat every person I meet with respect and kindness and I do my best to be mindful of other peoples feelings.
I've been misunderstood my entire life, sometimes people think I am angry because the way I talk or they think I mean something different because I don't know how to express myself. I have asked relentlessly for assistance in learning how to interact with everyday people as I have been living with enemies for the vast majority of my life. Why would I ask for help, why would I put all this effort into these programs in educating myself if I did not want to change? I try to bring awareness to others that do not understand about mental illness and try to learn from other peoples experiences as well. The mural I painted last year in the day room says "be kinder than necessary, because some people are fighting a battle you know nothing about".
Aggravating Factors
[29] There are a number of serious aggravating factors in this case. Mr. Husband has a lengthy criminal record. His record includes firearms offences.
[30] It is also significant that he discharged a loaded firearm in a highly public place. As noted in the Morris decision, gun crimes have long been recognized as serious offences which require emphasizing denunciation and general deterrence. Gun crimes threaten public safety and it is indeed fortunate that no one was injured as a result of Mr. Husband's actions.
[31] It is also significant that Mr. Husband abandoned the loaded restricted firearm in the Nissan vehicle. This increased the risk for public safety.
[32] It is also significant that the offences occurred while Mr. Husband was on parole.
[33] With respect to the s. 117 offence, a serious aggravating factor is that Mr. Husband was in flagrant disregard of not one, but two firearm prohibitions which had been previously entered against him.
Mitigating Factors
[34] It is clear that Mr. Husband experienced a difficult childhood and he has also been subject to assaults including sexual assaults against him.
[35] While his criminal record would suggest that there is little hope for rehabilitation, I was impressed by Mr. Husband's stated determination to try and turn his life around. He recognizes that he has had a drug problem since around age 12, but stated that he has been off methadone since February and has not consumed any non-prescription drugs since he was arrested. He apologized to people who were affected by his actions and expressed gratitude that no one was hurt. While Mr. Husband is not entitled to the benefit of a plea of guilty, he did in his evidence acknowledge responsibility for having possession of the firearm in question.
[36] It is also apparent that Mr. Husband was not involved in any other criminal activity for which the gun was being used as a "tool of the trade".
[37] Mr. Husband also is currently involved in a stable relationship. He has a common law spouse and participates in caring for three children. On several occasions during the course of the trial I noted that Mr. Husband's common law spouse did attend the proceedings. Mr. Husband stated that once he is released he intends to reside in Timmins with his common law spouse and her three children.
[38] Thus, I have concluded that while Mr. Husband's track record would suggest there is little hope of rehabilitation, I have concluded that there is at least some reasonable hope that with some supports being made available to him, there is still some hope for Mr. Husband to be rehabilitated.
Analysis
[39] With respect to the s. 244.2 offence, I have concluded that the Crown's submission of a 10 year sentence is excessive. In R. v. Jama et al., 2021 ONSC 4871, Justice Schreck refers to the case of R. v. Bellissimo, 2009 ONCA 49, where the court referred to a range of seven to eleven years for "serious gun related offences". Justice Schreck notes that in that case it was clear that the accused fired several shots inside a restaurant and injured two people, one significantly. He goes on to note that in his view the Bellissimo range may be properly applied only to cases of intentional shootings where someone is injured, or there was an attempt to injure someone. He then goes on to state at para. 45,
It follows from the foregoing review that the appropriate sentencing range for discharging a restricted or prohibited firearm without causing or attempting to cause an injury to another person is higher than the three to four year range for a possession of such a firearm and lower than the seven to eleven year range in Bellissimo. Given the dangerousness inherent in discharging a firearm where others are present, in my view the appropriate range is closer to the Bellissimo range than it is to the possession range. I therefore conclude that the appropriate range for a s. 244.2 offence using a restricted or prohibited weapon is five to seven years. I draw this conclusion without considering the mandatory minimum penalty.
[40] In R. v. Dhaliwal, 2019 ONCA 398, the Ontario Court of Appeal in a relatively brief endorsement referred to the cases that establish a seven to eleven year range for "serious gun related offences". In that case the accused had fired a single bullet into a hallway ceiling between, but not in, stores and apartments in a small strip mall. The trial judge had imposed a seven year sentence. The Court of Appeal was inclined to reduce the appellant's sentence by a modest amount. In the end, the sentence appeal was allowed and the seven year concurrent sentence for the firearms offences and the verbally threaten bodily harm offence was reduced to six years from a global sentence of seven years. This would appear to be consistent with Justice Schreck's assessment in the Jama case.
[41] Mr. Husband argued that his suffering from a mental illness should be considered as a mitigating factor in sentencing. Mr. Husband has not, however, shown any causal link between his mental illness and his criminal conduct. This connection must be established. The Ontario Court of Appeal decision in R. v. Prioriello, 2012 ONCA 63, makes this point clear at para. 11 where the Court states,
In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his abhorrent conduct.
[42] Taking into account the aggravating and mitigating factors in this case and the fact that Mr. Husband fired three or four shots which posed a direct risk of harm to members of the public, I have concluded that the appropriate sentence for the s. 244.2 offence is 6½ years. I have increased the sentence slightly from the Court of Appeal decision Dhaliwal, recognizing that the offence in this case is more serious. This is reflected in the fact that three to four shots were fired and they each posed a significant risk to public safety. I have also considered the mitigating and aggravating factors as noted above.
[43] With respect to the s. 117 offence, I accept the Crown's position that a sentence of two years is appropriate. I note that in R. v. Graham, 2018 ONSC 6817, Justice Code states that the Ontario Court of Appeal upheld a total sentence of ten years, made up of eight years for a s. 95 recidivist who also received a two year consecutive sentence for breach of prohibition orders. In R. v. Tully, 2022 ONSC 3515, Justice Charney made an order for three years imprisonment consecutive for possession of a firearm while the accused was prohibited from doing so by reason of an order made pursuant to s. 109(1) of the Criminal Code. In the present case Mr. Husband possessed a firearm in contravention of not only one but two orders made under s. 109 of the Criminal Code. The sentence is consecutive, consistent with the principle that an intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.
[44] With respect to the s. 95 conviction, I have concluded that Mr. Husband's sentence should be 4 years concurrent to the other two sentences.
[45] The above-noted sentences are subject to reduction based on pre-trial custody, Charter breaches, a Duncan credit and consideration of Mr. Husband's Indigenous status which I shall now consider.
Pre-Trial Custody
[46] In R. v. Summers, 2014 SCC 26 (SCC), at para. 70-74, the Court held that in determining credit for presentence custody judges may credit at most 1.5 days for every day served where circumstances warrant. Mr. Husband has been in custody since October 10, 2019. He is therefore entitled to a Summers credit up until today. By my calculation, Mr. Husband has been in custody for a total of 1,072 days. Based on a 1.5 credit per day, Mr. Husband is entitled to an enhanced Summers credit of 1,608 days.
Reduction on Account of Duncan credit, Gladue credit and Charter Breaches
[47] In addition to the Summers credit, I have concluded that Mr. Husband should be entitled to further credit based on the in-custody conditions he has experienced since his arrest. As noted the Court of Appeal in R. v. Marshall, 2021 ONCA 34, at para. 52, the Duncan credit is not a deduction from the otherwise appropriate sentence, but rather is one of the factors to be taken into account in determining the appropriate sentence. In this case I am considering it together with the Gladue and Charter breach factors. In the present case, Mr. Husband has been subject to 1,762 hours of lockdown conditions while at the Central East Correctional Centre. These occurred over 188 days. It appears that much of this time was caused as a result of the COVID-19 pandemic. In addition, Mr. Husband advised that he contracted COVID-19 while he was an inmate at the Central East Correctional Centre. Mr. Husband also described the conditions of his incarceration at the Central East Correctional Centre and I accept that these conditions should be considered to be harsh and justify a Duncan credit.
[48] I also consider that Gladue factors need to be taken into account in this case. Mr. Husband acknowledged in his submissions that his Aboriginal status did not have any direct impact on the charges he was convicted of. Nevertheless, I accept that his Aboriginal status is a significant consideration to take into account.
[49] Finally, I have considered the three Charter breaches as outlined in my Reasons dated June 6, 2022. While these breaches were not sufficiently egregious to justify a stay of the proceedings, all three of the breaches were significant and justify a reduction of the sentence in accordance with s. 24(1) of the Charter.
[50] Having considered the Charter breaches, the Duncan credit and taking into account the Gladue considerations, I have concluded that Mr. Husband's overall sentence should be reduced by a further 18 months. As a result, his overall sentence is reduced to 7 years which is subject to the Summers credit which has previously been calculated at 1,608 days. This sentence therefore nets out to 7 years less 1,608 days or approximately 2.6 years to be served after taking into account the credits which I have found Mr. Husband is entitled to.
Justice M. McKelvey
Released: September 15, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBERT HUSBAND
Defendant
REASONS FOR SENTENCE
Justice M. McKelvey
Released: September 15, 2022