Court File No.: CR-19-102, 20-20, 20-21 Date: 2023-08-09 Ontario Superior Court of Justice

Between: HIS MAJESTY THE KING – and – RYAN ABRAHAM, Defendant

Counsel: M. Mazurski, for the Crown D. Baker, for the Defendant

Heard: January 11 and June 23, 2023

Reasons for Decision on Sentence

Ellies R.S.J.

Overview

[1] Ryan Abraham pleaded guilty to charges arising from three separate incidents. The charges included manslaughter, robbery, threatening death, and possessing firearms while prohibited from doing so. He is before me now for sentencing.

[2] The Crown and the defence agree that Mr. Abraham should be sentenced to 14 years in prison on all the charges, less credit for time served. However, they disagree on the amount of credit he should be given for the conditions in which he served his presentence custody; the so-called “Duncan” credit, named after the decision of the Court of Appeal in R. v. Duncan, 2016 ONCA 754. The defence seeks a Duncan credit of 20 months; the Crown submits that no more credit than six months should be given.

[3] For the following reasons, I have concluded that Mr. Abraham should be given a Duncan credit of 12 months.

The Offences

[4] The facts surrounding the offences begin in March 2012. In that month, Mr. Abraham was prohibited from possessing any firearms for a period of 10 years in connection with a conviction for trafficking drugs. In October 2015, he was again prohibited from possessing any firearms, this time for life, as a result of a conviction for possessing a restricted weapon and a loaded firearm. The offences for which Mr. Abraham is being sentenced today all occurred while these two prohibition orders were in place.

[5] The first set of offences occurred on November 27, 2018. On that date, Mr. Abraham and a co-accused attended a hotel room in North Bay while Mr. Abraham was armed with a handgun and the co-accused was armed with a shotgun. While they were in the room, Mr. Abraham threatened the three female occupants and got into a physical altercation with one of them over money she alleged the co-accused owed her. Mr. Abraham and the co-accused then searched the room before leaving. I have not been told what they were looking for. Mr. Abraham has been found guilty of threatening death and possessing a firearm while prohibited from doing so in connection with this occurrence.

[6] The second set of events are the most serious and give rise to the conviction for manslaughter. On December 5, 2018, Mr. Abraham and another co-accused by the name of Taylor Briscoe attended a residence on Beattie Street in North Bay, wearing dark clothing and stockings to cover their faces. Their intention was to steal money at gunpoint from a woman residing in a basement apartment at that address who was involved in the drug subculture as a user and an occasional dealer. Mr. Abraham was armed with a short-barrelled rifle and provided Mr. Briscoe with a pellet handgun. However, the home they intended to invade was occupied not only by their intended target, but also by the deceased, Abraham Kamerman. Mr. Kamerman was 45 years old at the time.

[7] At about 9:00 p.m. on the evening of the day in question, Mr. Abraham and the co-accused knocked on the basement apartment door. Mr. Kamerman answered the door and an altercation then ensued in which he was repeatedly shot by Mr. Abraham. Mr. Kamerman died as a result of one of these shots. Mr. Abraham was charged with second degree murder as a result of the killing. However, with the consent of the Crown, he pleaded guilty to manslaughter, instead.

[8] The third set of charges arose after Mr. Abraham fled the city of North Bay following the shooting of Mr. Kamerman. On December 8, 2018, at about midday, a cab driver by the name of Hazem Alasmar was called to an address in London, Ontario, to pick up a passenger who turned out to be Mr. Abraham. Mr. Abraham had with him two plastic bags. One was a black trash bag. The other appeared to be a clear bag with a rug or carpet inside. Mr. Abraham wanted to keep the bags with him in the car, but Mr. Alasmar wanted them placed in the trunk and opened the trunk for that purpose. As he attempted to help Mr. Abraham to put the bags in the trunk, Ms. Alasmar touched the clear plastic bag and felt what he thought might have been an arm or a leg. At that point, Mr. Abraham punched Mr. Alasmar, knocked him to the ground, and proceeded to kick Mr. Alasmar while he was down. Mr. Abraham then got into the car and tried to flee, but Mr. Alasmar chased him and managed to get the keys out of the ignition despite suffering further blows to the face while doing so. Once he got the keys, Mr. Alasmar then fled to a nearby retirement home.

[9] Mr. Abraham followed Mr. Alasmar into the home and accosted a man who was visiting a resident at the time. The man, James Dunlop, gave Mr. Abraham the keys to his car after Mr. Abraham threatened to kill him. Mr. Dunlop was driving a rental car and had left his cell phone in the car. The police were summoned and, using the cell phone’s tracking function, managed to find the car. However, Mr. Abraham had abandoned the car after calling his sister, who came to get him. Mr. Abraham told his sister that he was wanted in connection with a homicide in North Bay. She attempted to convince him to turn himself in, but was unsuccessful. She eventually called the police, who found and apprehended Mr. Abraham shortly afterward. The police later retrieved the short-barrelled rifle and a sawed-off shotgun from one of the bags in the trunk of the taxi. Mr. Abraham was convicted of one count of possessing a firearm while prohibited and two counts of robbery as a result of these events. He has been in custody since his arrest on December 8, 2018.

The Offender

[10] Mr. Abraham is 31 years old. He was born and raised in North Bay. His father’s family is of Métis descent. As such, Mr. Abraham is recognized in law as an Indigenous person.

[11] Mr. Abraham’s parents separated when he was young. He remained in his mother’s care while his older siblings went to live with their father. According to both Mr. Abraham and his mother, his mother had a drinking problem in those years that both believe was the reason Mr. Abraham did not do well at school and began hanging out with the wrong crowd. Although Mr. Abraham began high school while living at home, he had to finish it while he was incarcerated.

[12] Prior to his arrest on the present offences, Mr. Abraham had a criminal record that began in 2012 (when he was 19 years old) with a robbery conviction and ended in 2015 when he was given the lifetime firearms prohibition mentioned earlier as part of a 33-month total sentence for possession of a firearm contrary to a prohibition order and possession of a restricted firearm with ammunition.

[13] Mr. Abraham has a work history, but it is a brief one. The longest job he held was at a solar farm, where he worked for a year.

[14] Although Mr. Abraham has spent a significant part of his adult life in custody, he does have two children: an 8-year-old son and a 12-year-old stepdaughter. He testified that he maintains a close relationship with his son, albeit by telephone because of his incarceration.

[15] The author of the Gladue report submitted into evidence mentions that Mr. Abraham has suffered a series of head injuries over the course of his life, some on the hockey rink, others on the street. There is no medical evidence before me to support the Gladue report’s detailed discussion of acquired brain injuries, causes and symptoms. While I did detect some issues with Mr. Abraham's speech, he seems to be intelligent, and no one is alleging that his behaviour is the result of an acquired brain injury.

[16] While there is not much evidence in support of an acquired brain injury, there is evidence that Mr. Abraham suffers from other health issues. He has been prescribed medicine for attention deficit hyperactivity disorder ("ADHD"), post-traumatic stress disorder ("PTSD"), and pain caused by scoliosis in his back.

[17] Mr. Abraham has also been prescribed medicine for his addiction to opioids. As might be obvious from the facts surrounding some of his convictions, Mr. Abraham is an addict.

Sentencing Purpose and Principles

[18] I turn now away from a discussion of the facts and to a discussion of the law.

[19] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, R.S.C. 1985, c. C-46, s. 718.1. The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Code, s. 718. Section 718 of the Code sets out a number of objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders.

[20] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Code, s. 718.1. Section 718.2 of the Code requires that a sentence should be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender.

[21] In this case, as part of a plea agreement, the Crown and the defense agreed that Mr. Abraham should be sentenced to 14 years in custody for the offences with respect to which he has been found guilty. As Mr. Abraham was advised before he entered his pleas, the court is not bound by such an agreement and is free, indeed obliged, to impose whatever sentence it feels is fit. However, I agree that 14 years is a fit sentence in this case. In my view, it properly reflects the aggravating and mitigating circumstances, the main ones of which are as follows.

Aggravating Circumstances

[22] Among the aggravating circumstances in this case is the devastating effect Mr. Kamerman’s death has had upon his family. The Crown has filed Victim Impact Statements from Mr. Kamerman’s father, his step-mother, his sister, his children, his nieces, and a friend. Some victim's statements had to be read by a police officer on their behalf; others were able to read their statements themselves. All of the statements were heart-wrenching. While Mr. Kamerman no doubt struggled with his own addiction issues, it is clear that he loved much, and was much loved. His death has impacted these people’s lives forever.

[23] The fact that the North Bay offences were committed using a firearm while Mr. Abraham was prohibited from ever possessing one is also an aggravating circumstance. While this circumstance is one which is already accounted for in the minimum sentence prescribed by the Code, what is not accounted for by any minimum sentence, however, is the fact that this is Mr. Abraham’s third time breaching a firearms prohibition order, the last one of which was made as a result of firearm-related offences. Mr. Abraham finished serving his 2015 sentence in July of 2018, the very year in which he committed the North Bay offences. Obviously, the 2015 jail sentence seems to have done nothing to deter or rehabilitate Mr. Abraham. Indeed, he was convicted of trafficking fentanyl while in custody on the present offences.

[24] Also aggravating is the fact that Mr. Abraham has already once been convicted of robbery.

Mitigating Circumstances

[25] Chief among the mitigating circumstances, in my view, is Mr. Abraham’s willingness to resolve the charges. He has wanted to do so since 2021. Unfortunately, his case has been plagued by unforeseen delays, including the sudden and tragic death of his lawyer, Michael Quigley, and my own hospitalization on May 23, 2023.

[26] Also mitigating are Mr. Abraham’s pleas of guilty and the apology he read during the sentencing hearing, both of which I accept as genuine expressions of remorse.

The Summers Credit

[27] Taking these aggravating and mitigating circumstances into account, 14 years incarceration less time served is a fit sentence in my view. By my count, Mr. Abraham has served 1,706 days in presentence custody to today’s date. Without having the benefit of reviewing any decided authority on the issue, I agree with the Crown that 30 days should be deducted from this number for the sentence that Mr. Abraham received for trafficking fentanyl while in custody, rather than the 20 days suggested by the defence. As I will discuss in more detail shortly, presentence custody is grossed up at the rate of 1.5:1 based on the notion that an accused serving time before being sentenced earns no credit on the time served towards early release: R. v. Summers, 2014 SCC 26 at para. 68. If only 20 days are deducted for the purpose of sentencing Mr. Abraham for the present offences, the 10 days credit he was given in connection with the trafficking conviction will themselves be grossed up as part of the Summers credit he will be getting in connection with the present offences. In essence, he will be getting enhanced credit for days he has notionally already "spent" in being sentenced.

[28] Deducting the full 30 days for which Mr. Abraham was credited when sentenced for trafficking fentanyl reduces the time spent in custody from December 8 to today to 1,676 actual days. Giving credit at the rate of 1.5:1, this presentence custody equates to 2,514 days.

The Duncan Credit

[29] In Summers, the Supreme Court of Canada held that enhanced credit can be given under s. 719(3.1) of the Code regarding presentence custody for both quantitative and qualitative reasons. Quantitatively, the court held that enhanced credit can be given to account for the loss of earned remission time for individuals later sentenced to time to be served in a provincial institution and for the loss of early parole and statutory release for individuals later sentenced to time to be served in federal institutions: Summers, at paras. 24 and 68. Qualitatively, the Supreme Court held that enhanced credit can be given to account for the lack of education, retraining, and rehabilitation programs, as well as conditions such as overcrowding, inmate turnover, and labour disputes that tend to make presentence detention more onerous: Summers, at para. 28.

[30] However, the Supreme Court of Canada also recognized that, because the quantitative rationale for enhancing presentence custody will usually bring the enhanced time to the maximum 1.5:1 cap set out in s. 719(3.1), there may not be room under that section to give further credit for qualitative reasons: Summers, at para. 72. Perhaps for that reason, in Duncan, the Ontario Court of Appeal held that “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart and beyond the [Summers] credit referred to in s. 719(3.1)”: Duncan, at para. 7. The court held that:

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.

[31] More recently, in R. v. Marshall, 2021 ONCA 344, the Court of Appeal explained, at para. 50, that:

A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody.

[32] The Court of Appeal in Marshall clarified that, while the Summers credit is a deduction from what the trial judge determines as the appropriate sentence for the offence, the Duncan credit is not. Instead, the Duncan credit is “but one of the factors to be taken into account in determining the appropriate sentence.” As Doherty, J.A. wrote, at para. 52:

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.

[33] Thus, according to the decision in Marshall, the Duncan credit should be applied as a mitigating factor before the application of the Summers credit. Importantly, Doherty, J.A. in Marshall also wrote, at para. 53:

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk that the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed. [Citations omitted.]

[34] Notwithstanding these comments, on behalf of Mr. Abraham, Mr. Baker urges me to specify the amount of Duncan credit I am giving, as other judges have done since Marshall was decided: R. v. Inam, 2022 ONSC 4866. I see no reason not to do that in this case, because the Crown, the defence, and the court have agreed on the appropriate overall length of the sentence and, with a small discrepancy relating to the time to be deducted for the trafficking conviction, also on the Summers credit. Therefore, the credit I give under Duncan would be obvious, in any event. However, for reasons I will now explain, this case is a good example of why the Duncan analysis should be qualitative and not quantitative; applied in mitigation of a sentence, and not as a deduction from one. As I will explain, I am unable on the evidence to determine the exact number of days Mr. Abraham was locked down due to his own behaviour rather than conditions out of his control. Nor am I able to conclude from the evidence that the number days Mr. Abraham was locked down due to circumstances beyond his control amounted to particularly punitive or exceptionally harsh conditions on every such occasion.

[35] According to his affidavit evidence, Mr. Abraham was incarcerated at the Elgin-Middlesex Detention Centre, the Sarnia jail, the Stratford jail, Maplehurst Correctional Complex, Central North Correctional Centre, and the North Bay District Jail following his arrest on December 8. At issue in this sentencing is the time he spent at Elgin-Middlesex, Maplehurst, Central North, and North Bay. According to the records and to Mr. Abraham’s evidence, he was housed at these institutions between the following dates:

• Elgin-Middlesex from December 8, 2018, to November 15, 2020
• Maplehurst from November 16, 2020, to June 28, 2022
• Central North from June 28, 2022, to March 13, 2023
• North Bay District Jail from March 14, 2013 to the present

[36] Records have been obtained from Elgin-Middlesex, Maplehurst, and North Bay District Jail and have been admitted into evidence. Notwithstanding the fact that Central North was served with a subpoena compelling it to produce its records, no such records were produced.

[37] In addition to the records that have been introduced, copies of journal entries made by Mr. Abraham have also been introduced. Mr. Abraham began to keep a journal shortly after his arrest. However, after Mr. Abraham was caught trafficking fentanyl in Maplehurst on March 14, 2022, the journal he had kept up to that point in time was confiscated and was never returned to him. For that reason, the journal entries now in evidence begin only after that date.

[38] According to Maplehurst’s records, Mr. Abraham was subjected to full lockdowns on 299 days. However, Mr. Abraham takes issue with this number. I am satisfied based on the evidence that four additional days should be added to the number of full lockdown days at Maplehurst, bringing the total to 303. Amending Maplehurst’s records in this fashion and relying on the balance of the records as well as Mr. Abraham’s journals, the number of lockdown days with respect to these four institutions is as follows:

• Elgin-Middlesex: 70 partial lockdown days
• Maplehurst: 303 full lockdown days, 53 partial lockdown days
• Central North: 106 full lockdown days, 13 partial lockdowns
• North Bay District Jail (to June 23, 2023): 58 full lockdown days

Total = 467 full lockdown days and 136 partial lockdown days

[39] On behalf of Mr. Abraham, Mr. Baker asks that I give Mr. Abraham a Duncan credit of 20 months with respect to the lockdowns referred to above. The Crown submits that if any more than five or six months are given as a Duncan credit, his sentence will be unfit. I do not agree with either submission. In my view, the appropriate Duncan credit lies somewhere in between these amounts, for the following reasons.

[40] First, even if I accepted the number of full and partial lockdowns set out earlier and credited those days at the rate of 1:1 as requested by the defence, they would not amount to 20 months. Taking partial lockdowns at the rate of .5, the total lockdown days equate to 535 full days. To determine how many months this represents, I would divide this total by 30.44, rather than the 30.417 suggested by the Crown. This is because every fourth year is a leap year, in which there are 366 days. Dividing by 30.44 brings the total number of lockdown months to 17.57, not 20.

[41] Second, as the Crown has demonstrated, the records obtained from Maplehurst include as lockdown time, time that Mr. Abraham spent in close confinement because of his own misconduct. While I have been taken to a number of examples of this in the Maplehurst records, I am not entirely confident that I have been taken to all such entries, nor have they been quantified.

[42] Third, Mr. Abraham has admitted that, although it is not reflected at all in the Maplehurst records, he was permitted to be out of his cell while acting as a server for two weeks during periods of lockdown.

[43] Fourth, Mr. Abraham has also admitted that he did not have as much difficulty contacting counsel while incarcerated as his affidavits would otherwise seem to suggest.

[44] Fifth, Mr. Abraham testified that he was able to contact his son by telephone every morning while he was incarcerated at the North Bay District Jail, an admission that I find inconsistent with his evidence that he suffered greatly because of the lockdowns at that facility.

[45] Finally, Mr. Abraham’s disciplinary record as reflected in the “OTIS Client Profile” records admitted into evidence demonstrates that, notwithstanding the lockdowns to which Mr. Abraham was subjected, he was still able to interact enough with other inmates that he had to be disciplined for threatening or assaulting them, and that he was still able to obtain contraband such as alcohol and drugs.

Conclusion

[46] For these reasons, I am not able to give Mr. Abraham Duncan credit on a fixed ratio basis. Instead, I am able only to assess the effect of the lockdown on him qualitatively and to mitigate the sentence based on that assessment. In my view, based on the effect that I believe the lockdowns had on Mr. Abraham, I would give him a Duncan credit of 12 months. In my view, the resulting sentence would not be unfit.

[47] Thus, the appropriate calculation with respect to Mr. Abraham’s sentence is as follows:

• Original overall sentence: 14 years
• 14 x 365 = 5,110 days
• Less Duncan credit of 365 days = equals 4,745 days
• Less credit for time served (1,676 actual days) with enhanced Summers credit (1,676 x 1.5) = 2,514 days
• Remaining time to be served = 4,745 days – 2,514 days = 2,231 days

[48] The remaining sentence to be served, therefore, is a little more than six years.

[49] I would apportion the original overall sentence of 14 years as follows:

• On the manslaughter charge: 14 years
• On the threatening charge relating to the occupants of the hotel room: 1 year concurrent
• On the charge of possession of a firearm relating to the incident at the hotel: 5 years concurrent
• On the charge of possessing a firearm in London: 5 years concurrent
• On the charge of robbing Mr. Alasmar: 5 years concurrent
• On the charge of robbing Mr. Dunlop: 5 years concurrent

[50] In addition to the jail sentence, I make the following ancillary orders: (1) Mr. Abraham will provide a sample of his DNA under s. 487.01(1) of the Code; (2) Under s. 743.21(1) of the Code, while he is serving his custodial sentence, Mr. Abraham shall not communicate directly or indirectly with Taylor Briscoe; and (3) Although it seems superfluous at this point, s. 109 of the Code requires that I prohibit Mr. Abraham from possessing any firearm, ammunition or other thing mentioned in that section for life. (4) The items seized during the investigation of these offences shall be forfeited under s. 490.1 of the Code.

M.G. Ellies R.S.J.

Released: August 9, 2023