Court File and Parties

COURT FILE NO.: CR-21-10000-498 DATE: 20231026

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - JAMEAL JOHNSON

Counsel: Kaely Hebert, for the Crown W. Glenn Orr Q.C., for the accused

Heard: September 11-12, 2023

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

[1] On June 24, 2023, at the conclusion of a jury trial, the accused, Jameal Johnson, was found guilty of all of the following six offences on the indictment: (1) dangerous driving; (2) possession of a prohibited firearm without a license; (3) possession of a weapon for a purpose dangerous to the public peace; (4) occupying a motor vehicle knowing that it contained a prohibited firearm; (5) pointing a firearm at Marcus Ragobeer; and (6) discharging a firearm with the intention of endangering the life of Marcus Ragobeer.

[2] Subsequently, the accused was also found guilty, based largely upon the verdicts of the jury, at the conclusion of a very brief judge alone trial, of one count of possessing a firearm while prohibited from doing so (for life) by means of an order made under s. 109 of the Criminal Code, R.S.C. 1985, chap. C-46.

[3] All seven of these criminal offences were committed by the accused on or about July 6, 2019, in the city of Toronto.

[4] In a pre-trial application, under the Canadian Charter of Rights and Freedoms, the accused sought the imposition of a stay of all of the criminal proceedings against him because the police lost a videotape recording of the police interview statement of the complainant (Marcus Ragobeer) taken shortly after the commission of the offences. I ruled that the application was premature, but that it could be pursued again at the end of the case, if the accused was found guilty. See: R. v. Johnson, 2023 ONSC 3516, at para. 25-32. Following the verdicts by the jury, the accused did not abandon this application, but rather briefly pursued it, arguing that all of the proceedings should be stayed. At the conclusion of this argument, I advised the parties that this application was dismissed, and that I would eventually provide reasons explaining this decision. These Reasons for Sentence will also address my reasons for declining this application.

B. The General Nature of the Offences

[5] I am satisfied beyond a reasonable doubt of all of the following facts, which are wholly consistent with the verdicts reached by the jury in this case.

[6] The complainant, Marcus Ragobeer, was driving his vehicle, a white 2019 Toyota Camry, in the early morning hours of July 6, 2019, after getting some food from a McDonald’s restaurant. He was stopped in his vehicle in one of the two eastbound lanes on Danforth Avenue, at the traffic lights located at Main Street in Toronto. The accused was driving a silver Jaguar and was similarly stopped in another eastbound lane of Danforth Avenue, right next to the complainant, at the same Main Street traffic lights. While they were so positioned in their respective vehicles, the accused engaged the complainant in a conversation about the music that the complainant was playing inside his vehicle. Predictably, this conversation quickly escalated into a verbal argument between the two men.

[7] The complainant then turned his vehicle south on Main Street in an effort to avoid the accused, but the accused also turned right and followed him in the Jaguar. The complainant then turned onto Gerrard Street, and he ultimately turned north on Victoria Park Avenue, trying all the while to get away from the accused. These attempts were all unsuccessful, as the accused continued to follow him. At one point, the accused appeared to use his phone to summon a friend, who appeared on the scene, shortly thereafter, driving a black Mazda vehicle, and then they both made efforts, with their respective vehicles, to force the complainant off the road.

[8] While the men were headed north on Victoria Park Avenue, the accused rammed the complainant’s vehicle with the Jaguar, using the front passenger side of the Jaguar to ram the driver’s side rear bumper area of the complainant’s Toyota Camry. When the complainant slowed his vehicle in order to try to assess the damage that the accused had caused to his vehicle, the accused drove up beside the complainant and pointed a firearm at him through the passenger window of his vehicle. When Mr. Ragobeer saw the gun, he sped off in his vehicle. Shortly thereafter, the complainant heard gun shots.

[9] The complainant then placed a 911 emergency call, complaining about the fact that someone driving a silver Jaguar rammed into his vehicle and then shot at him. The complainant was able to helpfully provide the 911 operator with a partial license plate number of the Jaguar vehicle (i.e. CFMK). Members of the Toronto Police Service (TPS) responded to the emergency call, and ultimately spoke with the complainant, but by that point in time, the accused who was driving the Jaguar was long gone.

[10] Subsequent investigative checks by the police revealed, however, that there was a silver Jaguar, with a license plate number CFMK 913, registered to an Oakville company. A representative of the Oakville company verbally confirmed that the car belonged to them, and this representative indicated to the police that the Jaguar was rented to an individual in Oakville. However, the company representative explained that the Jaguar was fitted with a Global Positioning System (GPS), which showed that the vehicle was, at that very moment, located near 123 Sandyhook Square in Toronto.

[11] The police then attended at 123 Sandyhook Square, where the unoccupied silver Jaguar was located, with a tarp spread over its front, concealing the damage that had been done to the front of the vehicle. Further investigations by the police revealed that some seven people lived at the residence, including the accused, Jameal Johnson.

[12] Later that same day, the police arranged a fair photograph “lineup,” and the complainant positively identified the photograph of the accused as the person who was driving the Jaguar that night, and who rammed him with his car, and who shot a gun in his direction.

[13] On July 7, 2019, a Justice of the Peace granted search warrants to permit the police to search the residential premises at 123 Sandyhook Square and the silver Jaguar motor vehicle. During the execution of these search warrants, the police located a spent 0.4 calibre shell casing on the rear floor on the driver’s side of the Jaguar – where one would expect such a shell to be ejected, if a handgun had been fired out the passenger window of the Jaguar. The police also found the Jaguar key, personal belongings of the accused, and mailing documents in the name of Jameal Johnson in the basement of the residential premises.

[14] At the time of these offences, the accused was prohibited, by virtue of a previous court order, from having the possession of any firearm. His conduct was a clear and obvious violation of that previous court order.

C. The Personal Circumstances of the Offender

[15] The accused was born in Toronto and is now nearly 41 years old.

[16] Tragically, his mother was murdered in 1992, when the accused was but 10 years old. After her death, the accused was “shuffled” around to various relatives for periods of time, and he spent some time in a “group home.” However, he was largely raised in areas of Toronto that had high rates of crime, and he was thereby unfortunately exposed to many different kinds of crime. His father has not been involved in his life, and the accused has had very little contact with him over the years. The accused has a number of half-siblings, but he has little close connection to them. In short, as defence counsel argued, the accused suffered through a “terrible” childhood, with none of the familial advantages provided to many of us growing up.

[17] A social worker, who has known the accused, and has tried to help him, for many years, namely, Shawnette Rowe, testified at the sentencing hearing in this case. She explained that she has always thought of the accused as her “nephew”. There was a time when she “babysat” the accused, and saw him on virtually a daily basis, when they were both young children living in the Regent Park area of Toronto. She described the accused then as a “really good kid.” Significantly, in her evidence, Ms. Rowe described how she and the accused discovered the “murder/suicide” that ended his mother’s life when the accused was but 10 years old, and how that incident has understandably impacted the accused’s life. Thereafter, the accused kept “running away” from that environment. Ms. Rowe has periodically suggested to the accused that he obtain some type of therapy or counselling to help him deal with his mother’s death, but he has never taken any such treatment.

[18] The accused has fathered three children with two different women, with whom he had been involved in romantic relationships. The accused presently has a girlfriend, who he has known for many years, and who he has been dating since 2017. His three children are of significantly different ages, and he has never paid any “child support” to help any of them financially.

[19] The accused has a lengthy criminal record – literally pages long – starting as a youth in 1997, and continuing as an adult in 2001. This record, by my count, includes at least some 55 criminal convictions, including convictions for the offences of possession of stolen property over $5,000, assault, robbery, failing to comply with a recognizance, obstructing a peace officer, carrying a concealed weapon, failing to comply with a disposition, trafficking in a controlled substance, failing to comply with a probation order, possession of a controlled substance for the purpose of trafficking, unauthorized possession of a firearm in a motor vehicle, possession of a prohibited or restricted firearm with ammunition, escaping lawful custody, possession of property obtained by crime, dangerous operation of a motor vehicle causing bodily harm, failure to stop at the scene of an accident involving bodily harm, driving while disqualified, trafficking in a controlled substance, failure to comply with an undertaking, assaulting a peace officer, etc.

[20] On June 3, 2013, the accused received his longest previous sentence. It was, effectively, a seven year penitentiary sentence, as the accused was sentenced to four years and nine months imprisonment, after spending 18 months in pre-sentence custody, for the offences of possession of a prohibited or restricted firearm with ammunition, unauthorized possession of a firearm in a motor vehicle, careless storage of a firearm, weapon, prohibited device, or ammunition, possession of an unauthorized prohibited or restricted weapon, carrying a concealed weapon, possession of a weapon, failure to comply with a probation order and possession of a firearm or ammunition contrary to a prohibition order.

[21] It is immediately apparent from the details of this most unenviable criminal record, that the accused has, in the past, simply not been inclined to follow any court order imposed upon him, and he has simply treated them as meaningless. If the accused wishes to avoid increasingly lengthy periods of additional imprisonment in the future for breaching such orders, that criminal misconduct must stop immediately.

[22] Indeed, as I remarked during the sentencing hearing in this matter, the accused seems to be serving a sentence of life imprisonment, on the installment plan. He seems unable or unwilling to escape this terrible repetitive cycle of the commission of serious offences (often with a firearm), only to be predictably followed by lengthy terms of imprisonment, and then his eventual release back into the community.

[23] While he was serving time in custody, the accused attained his Ontario Secondary School Diploma in 2012. This is his highest level of education.

[24] With respect to employment, the accused obtained his first paid job, at the age of 34, when he obtained seasonal employment working with a “pool company”. He stopped working for this company after some 18 months, when his federal parole expired. When asked by the author of the Pre-Sentence Report as to how he economically sustained himself, the accused candidly indicated that he spent most of his time in the community “selling drugs.” However, the accused has also learned how to be a barber in an unpaid position that he occupied for a time.

[25] The accused does not appear to have a substance abuse problem, although he has admittedly periodically consumed alcohol, marihuana, crack cocaine, and other illicit drugs.

[26] The Pre-Sentence Report indicates that the accused pled “guilty” to these offences. He did not. He pled “not guilty” to all of these offences, and a jury trial was held to determine the merits of six of the criminal charges against him (but not the charge of breaching a previous court order prohibiting him from the possession of any firearm). Even in relation to the alleged breach of a firearms prohibition order, which was the subject of the brief judge alone trial, the accused pled “not guilty.” Of course, that was his right, and his failure to plead guilty to any of the charges against him cannot be used as any type of “aggravating” circumstance on the issue of the sentence that should now be imposed upon him. I mention this fact only to ensure the accuracy of the court record and in order to correct that inaccurate statement in the Pre-Sentence Report.

[27] With respect to his attitude towards the present offences and issues around “firearms in the community,” the accused admitted that “it’s not good” and said that “it can cause a lot of problems and danger to people it’s not safe.” Further, the accused indicated that he had “been in a lot of situations where “[he] could have lost [his] life”. When asked by the author of the Pre-Sentence Report as to why he has been convicted of a “fourth firearm charge,” the accused stated: “I’m convicted for a firearm charge but I never actually got caught with it in my possession, whenever I did carry it was fear of life and people harming me.”

[28] The sad irony of the accused recognizing the general danger of firearms, and the potential danger to him personally, while continuing to illegally possess and use loaded firearms, in direction contravention of court-ordered prohibitions, seems lost on the accused.

[29] The accused has been in custody on these charges largely since October 13, 2020. However, he was released from custody on bail on June 8, 2021, but he was returned to jail on these charges on December 29, 2021. According to my calculations, that means that he has already spent approximately 30 months in custody on these charges. Of course, the sentence now imposed upon the accused will have to take this pre-sentence custody into account, and the accused will have to be appropriately given fair credit for this lengthy period of pre-sentence custody.

D. The General Sentencing Principles

[30] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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 others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[31] According to s. 718.1 of the Code, 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.”

[32] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• 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.

E. The Positions of the Parties

[33] The Crown argued that the accused should be given a sentence of some 13-15 years imprisonment for these offences – after the accused is given an appropriate credit for his pre-sentence custody. More specifically, the Crown suggested that the accused should be given a sentence of approximately 13-14 years imprisonment for the various firearms offences he committed, a consecutive term of 12-18 months imprisonment for his dangerous driving offence, a consecutive term of one year imprisonment for the breach of the firearms prohibition order. The Crown agreed, however, that this total should be reduced to some 13 years imprisonment after the accused is credited for his pre-sentence custody.

[34] In advancing this position, Ms. Hebert relied upon the sheer gravity of the present offences by the accused, his lengthy criminal record, the fact that the accused has now committed four sets of firearms offences, the accused will not be bound by any court ordered prohibition orders regarding firearms, and he appears to have no insight or remorse for his criminal misconduct. Ms. Hebert argued that, in all of the circumstances, the accused’s prospects for rehabilitation are extremely slight, especially given his anti-social tendencies and the absence of any pro-social work record, that firearms pose a special problem in the city of Toronto, and that the only means of adequately protecting the public from the accused is the imposition of a lengthy penitentiary sentence of imprisonment.

[35] The Crown also suggested that there should be a number of ancillary sentencing orders in this case, including: (1) an order requiring the accused to provide a sample for the DNA databank; (2) an order prohibiting the accused from the possession of any firearm for life; (3) a three-year driving prohibition; and (4) an order prohibiting the accused from having any contact with the complainant.

[36] Defence counsel for the accused, on the other hand, suggested that the accused should be given an effective credit of at least 4½ years for his time in pre-sentence custody that he has already served, and that this should result in only a short further term of penitentiary imprisonment, given that he should receive a sentence towards the lower end of the appropriate range of 7-11 years imprisonment.

[37] In advancing his position, Mr. Orr Q.C. relied heavily upon R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, and the fact that the accused is a black man, who endured a “horrible” childhood, and likely suffered from systemic racism.

[38] Defence counsel briefly suggested that some of the convictions of the accused (i.e. the ones involving the possession/use of the firearm) should be stayed, pursuant to the rule enunciated in R. v. Kienapple, [1975] 1 S.C.R. 729; 15 C.C.C. (2d) 524. I disagreed with this submission. In my view, none of the convictions of the accused should be stayed by reason of the rule against multiple convictions for the same offence. The accused has been found guilty of many offences – but none of those convictions were for, essentially, the same offence. Defence counsel did not, however, oppose the ancillary sentencing orders proposed by the Crown.

F. The Custodial Credits Due to the Accused

1. The Enhanced Credit for Pre-Sentence Custody – Pursuant to R. v. Summers

[39] As I have already indicated, the parties are basically agreed that the accused has now served approximately 30 months in pre-sentence custody on these charges. It is this period of time to which he must be given fair and appropriate credit.

[40] The Crown fairly accepts that the accused must be given the maximum statutory enhanced credit for this pre-sentence custody. I agree. In my view, there is no reason why the accused should not be given 1.5 days credit for each day of his pre-trial detention, pursuant to s. 719(3.1) of the Criminal Code. See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147, 114 O.R. (3d) 641.

[41] Accordingly, the sentence that would otherwise have been imposed upon the accused will be reduced by at least 45 months.

2. Additional Credit for Harsh Conditions – Pursuant to R. v. Duncan

[42] Defence counsel argues that the accused should receive additional credit to account for the harsh “lock down” conditions he has experienced while detained at the Toronto South Detention Centre and the Toronto East Detention Centre.

[43] According to the affidavit materials filed on the sentencing hearing, the accused was under “lock down” conditions at the Toronto South Detention Centre for over 130 partial days, and some 15 full days. During such “lock down” conditions, inmates had reduced access to phone calls, showers and “yard” privileges, and restricted access to medical care. Similarly, the accused experienced approximately 147 partial lock down days, and 14 full lock down days at the Toronto East Detention Centre. However, some of this experience was due to a variety of “misconduct” offences committed by the accused while incarcerated at that institution. According to the affidavit from the accused, most of the time during his pre-sentence detention was during the time that “Covid was present in the community” and the “lockdowns” caused him “great stress” due to the fact that they caused him “lack of phone time, loss of visits, loss of shower time, and on occasion loss of food.” The accused also indicated, in his affidavit, that “many” of his nights at the Toronto East Detention Centre were spent with “three people to a cell” and that this “overcrowding situation” also caused him “stress.”

[44] In R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255, the Court of Appeal for Ontario recognized, at para. 6, that credit in relation to pre-sentence incarceration is not “capped” at the statutory limit of 1.5 days for each day of pre-sentence custody in s. 719(3.1) of the Code, but rather may, in appropriate circumstances, include additional credit for “particularly harsh presentence incarceration conditions.” The court in Duncan noted that, in considering whether any enhanced credit should be given for such conditions, the sentencing court should “consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.” Further, the court suggested that where an accused has served a significant part of his or her pre-sentence incarceration in “lock down” conditions, which had an “adverse effect” on the accused, such additional credit will be appropriate. See also: R. v. Henry, 2016 ONCA 873, [2016] O.J. No. 5897, at para. 9; R. v. Rajmoolie, 2020 ONCA 791, 155 O.R. (3d) 64; R. v. Johnson, 2017 ONSC 3512, at paras. 66-81; R. v. Powell, 2017 ONSC 7437, at paras. 37-39.

[45] There is no helpful mathematical formula that can be applied in these circumstances to conveniently calculate the appropriate credit for these types of harsh conditions of pre-sentence custody, which have had this type of negative impact upon an accused. Rather, the specific nature of the appropriate credit is left to the discretion of the sentencing court. In my view, in the circumstances of this case, given the duration of the lock down conditions, and their adverse impact on the accused, he should be extended a further custodial credit that is equivalent to approximately three months imprisonment.

3. Conclusion on Custodial Credits

[46] Adding these various custodial credits together results in a total credit of approximately four years (48 months), not far from the total credits suggested by defence counsel for the accused. Accordingly, the penitentiary sentence that would otherwise have been imposed upon the accused will be reduced by that total credit.

G. The Sentence of Imprisonment to Be Imposed Upon the Offender

[47] The offences committed by the accused are shockingly serious. There is simply no gainsaying their clear gravity. They require the imposition of a sentence that proportionally reflects their great seriousness.

[48] The accused became embroiled in a verbal argument with the victim while they were both stopped at a traffic light in Toronto. The accused did not just close the windows of his car, but had to verbally complain to the victim about the music that he was playing in his vehicle. This kind of thing happens to people every day. But rather than simply drive on with the turning colour of the traffic light, and thereby avoid any further conflict with the victim, the accused steadfastly followed the victim in his own vehicle, driving dangerously and trying to drive him off the road (with the vehicular assistance of a friend), so as to further confront or punish the victim in some way. Cooler heads simply did not prevail. Instead, the accused became obsessed with “road rage” and he continued to follow the victim’s vehicle. Ultimately, while they travelled north up Victoria Park, the accused deliberately rammed into the victim’s car with his own vehicle – predictably seriously damaging both vehicles. But even this shocking misconduct was not enough for the accused, as he then pulled out his loaded semi-automatic handgun (which he was prohibited from possessing at all, by a clear court order, never mind having it readily available in his motor vehicle), pointing the firearm at the victim through the window of his vehicle, and then discharging that handgun in the direction of the victim, thereby intentionally endangering his life.

[49] The practical consequences of these criminal events were, thankfully, only two badly damaged vehicles and a terrified and traumatized victim. But the consequences could easily have been much worse. The city of Toronto continues to be plagued by gun violence of all types, and one cannot help but notice that, at least on occasion, such gun violence ends in the tragic death of some innocent, nearby victim. See: R. v. Danvers (2005), 199 C.C.C. (3d) 490, 201 O.A.C. 238 (C.A.), at paras. 77-78; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14; R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995, at paras. 10, 58, affirmed, 2013 ONCA 223, 305 O.A.C. 47; R. v. Chambers, 2012 ONSC 817, [2012] O.J. No. 462, at paras. 15-17, affirmed, 2013 ONCA 680, 311 O.A.C. 307; R. v. Mark, 2018 ONSC 447, at para. 24; R. v. St. Clair, 2018 ONSC 7028, at paras. 47-50; R. v. Thavakularatnam, 2018 ONSC 2380, at para. 21, R. v. McNichols, 2020 ONSC 6499, at paras. 37-41. That could easily have happened in this case. The use of the loaded, semi-automatic handgun by the accused could have killed some entirely innocent passerby. Alternatively, the accused could have killed the victim, who was only “guilty” (at worst) of playing loud music in his motor vehicle late at night, while stopped at a traffic light.

[50] The accused, a dangerous recidivist, who refuses to follow court orders, and insists on possessing and using loaded handguns in the city of Toronto, in his attacks of “road rage,” must learn that such inherently dangerous criminal misconduct will simply not be tolerated, and that he will be forced to endure increasingly lengthy penitentiary terms of imprisonment in order to fully and properly protect the law-abiding members of civilized society. Such a sentence must be in double-digits. Given that the accused was apparently unaffected by the imposition of a seven-year term of imprisonment, in my view only a ten-year year sentence will serve the governing sentencing principles in the present case. See: R. v. Bellissimo, 2009 ONCA 49, [2009] O.J. No. 179, at paras. 3-6; R. v. Jefferson, 2014 ONCA 434, [2014] OJ No 2560, at paras. 13-14.

[51] More particularly, only the imposition of a ten-year sentence will: (1) proportionally reflect the gravity of the awful series of criminal offences committed by the accused; (2) provide the necessary element of general deterrence in the circumstances to stop incidents of “road rage” and help stop the possession and use of loaded handguns on the streets of Toronto; and (3) specifically deter the accused from the commission of further criminal offences, and deter his possession and use of loaded firearms in particular. While sheer optimism prevents me from dismissing entirely the possibility that the accused will ultimately be rehabilitated as a result of the imposition of this sentence, an understanding of history and the reality of his lengthy criminal record prevents me from placing great weight on that theoretical possibility.

[52] I decline to impose the longer sentence, of 13-15 years imprisonment, proposed by the Crown. It is not that I consider such a sentence unfit in all of the circumstances. Rather, it is only that I consider the longer sentence proposed by the Crown to be too great a “jump” in the sentences imposed upon the accused. Such longer sentences, or perhaps even an indeterminate sentence of imprisonment, will only have to be imposed upon the accused if he continues on his current path of criminality, and is not deterred by a ten-year penitentiary sentence. But that will all be dictated by future events.

[53] Further, in my view the somewhat longer sentence proposed by the Crown does not sufficiently take into account the systemic anti-black racism that the accused has encountered in the past. See R. v. Morris, at paras. 13, 39-55, 91, 97, 106-107. According to the author of the Pre-Sentence Report, in exploring with the accused his experiences with “racism” and its “cultural impact” on him, the accused stated:

… the schools he attended and the communities he resided in had a large diverse multiculturalism. He stated he did not believe he experienced any racism in these situations, however, he feels different about police. He stated after an experience at the age of 14 where an officer hit him on the side of his head [and] left him with hearing issues: “if it’s quiet I have a ringing sound in my ears”. He added he feels that he’s been “harassed for many years” by police.

[54] At the same time, in my interaction with the accused during the course of the sentencing hearing, I tried to make it clear to him that I was simply not able to do anything about his past misfortunes, including the tragic death of his mother, and the effective absence of his father from his life. Rather, as I advised him, I must sentence him according to the facts as they now are, especially given that racism would seem to have nothing to do with the offences committed by the accused. See: R. v. Morris, at paras. 56, 75-78, 97. However, unless and until he accepts the necessary therapy and/or counselling to help him deal with these past traumatic events, he is unlikely to change his life and move forward in a pro-social manner. The members of the national Parole Board must know this before considering whether or not he can properly be released back into civilized society at some earlier date.

[55] Giving the accused the fair and appropriate credit for already having served the equivalent of approximately four years imprisonment, and deciding to impose an effective sentence of ten years imprisonment, means that the accused must now be sentenced to a penitentiary term of six years imprisonment. That is the sentence of imprisonment that is now imposed upon the accused.

[56] More specifically, in imposing the total penitentiary term of six years imprisonment, the accused will be sentenced as follows: (1) he will be given one year imprisonment for the offence of “dangerous driving;” (2) he will be given an additional (consecutive) period of imprisonment of four years for the offences of possession of a prohibited firearm without a license, possession of a weapon for a purpose dangerous to the public peace, being the occupant of a motor vehicle in which there is a prohibited firearm, pointing a firearm at the complainant, and discharging a firearm at the complainant with the intention of endangering his life (these sentences will be concurrent to each other); and (3) he will be given one additional (consecutive) year of imprisonment for the offence of breaching the firearms prohibition order. Those sentences add up to a total sentence of six years imprisonment.

[57] When added to the total credit the accused is given for his pre-sentence custody, that is the equivalent of a ten-year penitentiary term of imprisonment.

H. The Ancillary Sentencing Orders

[58] In addition, in my view the following ancillary sentencing orders are all appropriate in the circumstances of this case.

[59] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order, in form 5.03, requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The “discharging a firearm with intent” offence committed by the accused is a “primary designated offence” as defined in s. 487.04 (a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

[60] Second, pursuant to ss. 109(1) (a) and 109(3) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. Given the earlier prohibition order, made under s. 109 of the Criminal Code, this life-time prohibition order is mandatory.

[61] Third, pursuant to s. 743.21 of the Criminal Code, I make an order prohibiting the accused from communicating, directly or indirectly, with the victim of many of the offences, namely, Marcus Ragobeer, during the custodial portion of the sentence imposed upon the accused.

[62] Fourth, pursuant to s. 320.24(4) and (5) (b) of the Criminal Code, I make an order prohibiting the accused from operating a motor vehicle for a period of three years, after he has served his sentence of imprisonment in relation to these offences.

[63] I note in passing that the accused will comply fully with each of these orders, or he will suffer the custodial consequences of non-compliance.

I. The Lost Evidence Application - Dismissed

[64] As I have indicated, defence counsel for the accused pursued, near the outset of the sentencing hearing in this case, his application to stay the proceedings due to the “lost evidence” of the video-recorded interview of the complainant shortly after the alleged offences.

[65] This application was foundationally based on two main points: (1) that the evidence was lost due to the unacceptable negligence of the police investigators; and (2) that this interview would have disclosed many inconsistencies with the trial testimony of the complainant. I reject both of these suggestions.

[66] Indeed, I have concluded, after considering all of the evidence in this matter, including the initial evidence led on this application, as well as all of the evidence led by the parties at the trial of this matter, that there has been no violation of the Charter of Rights and no proper legal basis to stay the proceedings in this case. More particularly, I have concluded as follows:

• That this “lost evidence” was not lost as a result of any “unacceptable negligence” or “abuse of process” on the part of the police, but rather was lost by virtue of the combination of technological and understandable human error. See: R. v. Johnson, 2023 ONSC 3516, at para. 25-32.
• That there is simply no evidentiary basis, apart from pure, baseless speculation, to conclude that the video-recorded interview of the complainant likely contained any information that would have permitted defence counsel to cross-examine the complainant on any alleged inconsistencies. In this regard it is important to recall the surrounding circumstances of this interview, taking place as it did: (1) after the complainant had made a preserved, audio-recorded 911 emergency call during the very course of the offences; and (2) shortly before the preserved video-recording of the complainant picking the photograph of the accused (as the perpetrator of the offences) from an ideally conducted photograph lineup.
• Defence counsel for the accused was able to fully cross-examine the complainant, at great length, and ultimately suggested to the jury that Mr. Ragobeer was an unreliable and incredible witness. In short, the accused was not, in fact, deprived of any evidence that prevented him from advancing his defence in this case, that he was not the person who committed any of these criminal offences. Significantly, however, the great weight of the evidence in this case against the accused existed almost independently of the trial testimony of the complainant. In short, the two vehicles were damaged, just as one would expect, and a spent bullet was found by the police in the back of the accused’s Jaguar motor vehicle. The defence provided no credible explanation for this very damaging, inculpatory evidence.

[67] See: R. v. La, [1997] 2 S.C.R. 680, 116 C.C.C. (3d) 97; R. v. Bradford (2001), 52 O.R. (3d) 257, [2001] O.J. No. 107, at para. 3-10; R. v. St. Clair, 2023 ONCA 266, at paras. 23-33; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-47.

J. Conclusion

[68] In the result, after giving the accused a total credit of approximately four years for all aspects of his pre-sentence custody, the accused is now sentenced to a total of six years of penitentiary imprisonment. The accused is also subject to the various ancillary court orders that I have made today as part of the sentencing process.

Kenneth L. Campbell J. Released: October 26, 2023