R. v. Brittney Hawboldt, 2024 ONSC 2784

Court File and Parties

COURT FILE NO.: CR-22-70000073-0000 CR-23-50000714-0000 DATE: 20240513

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BRITTNEY HAWBOLDT Defendant

COUNSEL: Ari Linds, for the Crown Susannah Chung-Alvares, for Brittney Hawboldt

HEARD: November 28, 2023, March 14 and May 13, 2024

REASONS FOR SENTENCE

HIMEL J.

Brittney Hawboldt entered pleas of guilty to the offences of reckless discharge of a prohibited firearm contrary to s. 244.2(1)(a) of the Criminal Code, R.S.C. 1985, Chap. C-46, as amended, possession of a restricted firearm while not being the holder of a licence or registration certificate contrary to s. 92(1) of the Code, possession of a prohibited device (overcapacity magazine) contrary to s. 92(2) of the Code, fail to stop contrary to s. 320.17 of the Code, dangerous operation contrary to s. 320.13(1) of the Code, fail to comply with a release order (two counts) contrary to s. 145(5)(a) of the Code, mischief under contrary to s. 430(4) of the Code and fail to appear contrary to s. 145(2) of the Code. She had elected to be tried by a judge sitting alone.

Ms. Hawboldt confirmed that she was entering this plea voluntarily, that she understood that the plea was an admission of the essential elements of the offences, that she was aware that she was giving up her right to have a trial, that she understood the nature and consequences of the plea and that she was aware that this court was not bound by any agreement made between counsel regarding the sentence.

Following the plea of guilty, I ordered a pre-sentence report be prepared. It has now been received and made an exhibit. Counsel made submissions to the court on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND

1The Crown and Defence filed an Agreed Statement of Facts in accordance with s. 655 of the Code. On Friday, August 14, 2020, Toronto Police Service and Toronto Community Housing Corporation officers responded to a sound of gunshot radio call at 155 Sherbourne Street in the City of Toronto. The location of the radio call was in close proximity to the offices of Toronto Community Housing officers. Surveillance footage was reviewed by TCHC moments after the shooting. Through surveillance footage, it was determined that Brittney Hawboldt was involved in a verbal dispute or physical altercation with several parties in front of 155 Sherbourne Street at approximately 1:57 a.m. Moments later, she is observed walking with Constance Cousins through a breezeway that connects the two buildings to a rear parking lot where a silver Hyundai vehicle was parked.

2Ms. Hawboldt obtained a firearm from that vehicle and held the firearm in her hand. It was a handgun with an extended magazine. She discharged it striking the wall of a breezeway at 2:04 a.m. She walked into the breezeway where she was restrained by a male who was later arrested in relation to this incident and identified as Mhilam Elhsaan Ezeldin Mohmmed. Both parties then returned to the rear of the address outdoor parking lot where the silver vehicle was parked. Ms. Hawboldt entered the vehicle and occupied the driver’s seat at 2:06 a.m. The vehicle was observed on surveillance driving off at a high rate of speed towards Shuter Street. It came to a complete stop prior to exiting onto the street. A female who was also subsequently arrested, Constance Cousins, was observed at the suspect vehicle after it came to a full stop at 2:07 a.m. The vehicle then proceeded onto Shuter Street and a TCHC officer was able to obtain the licence plate CFBE 451 and advise dispatch.

3The vehicle shortly thereafter became involved in a hot pursuit with a number of officer vehicles following Brittney Hawboldt in a high-speed chase through the downtown core between 2:08 a.m. and 2:11 a.m. In-car Camera System (ICCs) recordings from four TPS vehicles involved in the occurrence and an Intergraph Computer-assisted Dispatch Event Details Report disclose synchronized time stamps. At 2:08:52 to 2:09:00 a.m., the vehicle travelled westbound on Shuter Street between Parliament and Sherbourne Streets at about 50 km/h. Sometime between 2:09:01 a.m. and 2:09:04 a.m., the vehicle turned left from Shuter Street onto Sherbourne Street. At 2:09:07 a.m. to 2:09:14 a.m. the vehicle travelled southbound on Sherbourne Street between Shuter Street and Queen Street East, accelerating from about 50 to 60 km/h. At 2:09:29 a.m., the vehicle travelled eastbound on Queen Street East from Sherbourne Street and was just west of Seaton Street, at about 43 km/h. At 2:09:41 to 2:10:02 a.m., the vehicle drove northbound on Seaton Street and then eastbound through the parking lot at the rear of the apartment buildings at 275, 285 and 299 Shuter Street at recorded speeds of 33 km/h, 67 km/h and 25 km/h. The vehicle drove through the parking lot area, a distance of about 450 metres in about 33 seconds, which calculated to an average speed of about 50 km/h. At 2:10:12 a.m., the vehicle travelled northbound on Parliament Street north of the traffic light-controlled intersection at Shuter Street at about 90 km/h. As per Google Maps, there was a posted speed limit sign of 40 km/h at this location for northbound traffic.

4The vehicle then travelled northbound on Parliament Street. At 2:10:21 a.m., just south of the traffic light-controlled intersection at Dundas Street East, the vehicle was travelling at 96 km/h. At 2:10 a.m., at Oak Street, which was between Dundas Street East and Gerard Street East, the vehicle speed was about 104 km/h. As per Google Maps, there was a lighted pedestrian cross-over and a posted 40 km/h speed limit sign on Parliament Street just north of Oak Street. At 2:10 a.m. just north of the traffic light-controlled intersection at Gerrard Street East, the vehicle speed was about 85 km/h. At 2:10:38 a.m., just south of the traffic light-controlled intersection at Carlton Street, the vehicle speed was about 96 km/h. At 2:10:44 a.m., just north of Carlton Street, the vehicle speed was about 80 km/h. At 2:10:52 a.m., just north of the traffic light-controlled intersection at Winchester Street, the vehicle speed was about 109 km/h. At 2:10:56 a.m., just south of traffic light-controlled intersection at Wellesley Street, the vehicle speed was 117 km/h. At 2:11:00 a.m., near 650 Parliament Street, the vehicle speed was about 127 km/h. At 2:11:04 a.m., at St. James Avenue just north of a lighted pedestrian cross-over, the vehicle speed was about 128 km/h. At 2:11:07 a.m., just south of Bloor Street, the vehicle speed was about 93 km/h.

5At 2:11 a.m., at the intersection of Parliament Street and Bloor Street, Brittney Hawboldt lost control of the silver Hyundai she was driving and crashed into the retaining wall in a single-motor vehicle collision. Toronto Police Service officers drew their firearms and arrested Brittney Hawboldt on scene. She was located in the driver’s seat of the motor vehicle badly injured in the crash and she was non-responsive. The airbags had deployed. The vehicle was a write-off. She had to be extracted from the vehicle. She was transported to hospital for treatment, where it was determined she had sustained a broken sternum and other injuries.

6Officers at the scene of the crash observed several live rounds of ammunition and a high-capacity magazine inside the vehicle. At the scene of the shooting, officers located one spent 9mm shell casing and five live rounds of 9 mm ammunition in the breezeway. Also located in the rear parking lot of the building was a live round of 9 mm ammunition and magazine components. These items were seized by police. Detective Constable Kristine McLane, a designated firearms examiner within the Toronto Guns and Gangs Task Force, who was tasked with examining these items and determining if the disassembled extended magazine recovered and seized from the scene could be reconstructed. D.C. McLane was able to reconstruct the extended magazine and conduct a test fire using the same components.

7On September 21, 2020, Brittney Hawboldt appeared before Her Honour H. Pringle of the Ontario Court of Justice, Toronto and was released on a restrictive bail. As a condition of her release, she was to reside at 29-312 Conacher Drive, Kingston, Ontario with family on house arrest. She was also required to wear GPS ankle bracelet monitoring at all times. On Saturday, April 9, 2022, Kingston Police received a call for service to attend 29-312 Conacher Drive, Kingston. Steve Tan of Recovery Science Corporation had advised police that Brittney Hawboldt had at 1:09 p.m. cut off her ankle bracelet and an alert notified him. A CPIC query of Brittney Hawboldt confirmed for Kingston Police that she had been released on GPS monitoring.

8At 1:40 p.m., Kingston Police arrived outside the residence of 29-312 Conacher Drive and conducted a door knock. A family member answered the door and immediately pointed to the front garden behind officers. Officers observed a thick large black ankle bracelet which had been cut off. Brittney Hawboldt was not at the residence and her whereabouts were unknown at that time. The bracelet was seized by officers and photographs were taken. The value of the cut bracelet was approximately $200. The bracelet has a Serial # NF600167522. A warrant was taken out for the immediate arrest of Brittney Hawboldt.

9On September 19, 2022, Ms. Hawboldt failed to appear in Superior Court and fled the jurisdiction thereby failing to comply with the conditions that she remain in her residence 24 hours a day, seven days a week except for medical emergencies involving her or Cheryl Hawboldt while in the direct and continuous supervision of one of her sureties and wear ankle bracelet monitoring at all times. On March 14, 2023, she was arrested alone on a bus in Cochrane, Ontario and held for a show cause hearing.

EVIDENCE LED AT THE SENTENCING HEARING

10Crown counsel filed the criminal record for Ms. Hawboldt. Her criminal record dates back to December 20, 2010 in Youth Court where she was convicted of fail to comply with recognizance (two counts), fail to attend court, assault (two charges), theft under $5,000 and she received a sentence of time served of 47 days and two years’ probation, and on the same day, theft under, assault and fail to comply for which she received two years of probation; July 14, 2011, she was found guilty of possession of property obtained by crime and sentenced in Youth Court to 9 months of probation; on March 21, 2012, she was convicted of traffic in Schedule I substance and sentenced in Youth Court to 12 months of probation; on April 7, 2014, she was found guilty of assault and fail to comply and sentenced to 12 months of probation in Youth Court; on October 3, 2017, she was found guilty of fail to comply with recognizance (two counts) and sentenced to 7 days in addition to 5 days of pre-sentence custody; on May 21, 2019, she was sentenced to driving while her ability was impaired and fined $1,800 and prohibited from operating a motor vehicle for 12 months.

11The Crown also tendered Ms. Hawboldt’s driving record from the Ministry of Transportation. The first entry is in 2014 when her licence was suspended; then it was reinstated and suspended again in 2018 for an unpaid fine. It was suspended in 2018 for medical reasons; On May 19, 2021, it was suspended indefinitely for the offence of impaired driving causing bodily harm.

12The defence filed the records from the jails where Ms. Hawboldt has been incarcerated and an affidavit from her. This information was updated to today’s date by a letter from Ms. Chung-Alvares sent with the consent of Mr. Linds which indicates that since March 14, 2024, Ms. Hawboldt has been detained a further 60 days and that the jail has been in lockdown because of construction of video suites. A further affidavit was submitted to me which confirms the lockdown situation and the impact of this on Ms. Hawboldt. I will outline counsel’s position on the relevance of these lockdowns to pre-sentence custody credit below.

13Defence counsel also submitted a document entitled “New Life Prison Ministries” which set out courses she has taken through them and her grades. Further submitted was a letter from Ms. Hawboldt and certificates of courses she has completed while in custody. The letter is an apology for “the horrendous choices I’ve ashamedly made and the mistakes I sincerely regret.” She has considered all of this during her incarceration and takes full responsibility for her actions. She writes, “I am going to take this time to work on myself so I can become a contributing member of society, a better daughter, granddaughter, big sister, aunty and niece.” Ms. Hawboldt apologized to the court during the sentencing hearing and today as well.

14The pre-sentence report which details Ms. Hawboldt’s background and circumstances was filed as an exhibit and the contents are discussed below.

POSITIONS OF THE PARTIES ON SENTENCE

Position of the Crown

15Crown counsel, Mr. Linds, submits that an appropriate sentence in this case is one of five years for the offence of discharge firearm contrary to s. 244.2(1)(a), for possession of a restricted firearm without being the holder of a licence (s. 92(1)), a period of one year concurrent and for possession of a prohibited device (s. 92(2)), six months concurrent to the five-year sentence. For the offences of fail to stop contrary to s. 320.17, he asks the court to impose six months consecutive and for dangerous operation of a motor vehicle (s. 320.13(1)), a period of imprisonment for six months consecutive for a total of one year in addition to the five-year sentence. For the offences of fail to comply with release order (the ankle monitor) and fail to comply with the term of bail of house arrest (both contrary to s. 145(5)(a)), he asks the court to impose a sentence of six months concurrent on each and for mischief under for cutting the ankle monitor bracelet contrary to s. 430(4), a period of three months and for fail to appear in the Toronto Court, a period of three months’ imprisonment concurrent to the fail to stop sentence. This would be a global sentence of six years.

16Counsel also asks the court to impose a number of ancillary orders. They are a s. 109 order for life; a DNA order as these are both primary and secondary offences, an order for restitution of $200 for the ankle bracelet to Recovery Sciences in accordance with s. 730 and a Victim Fine surcharge in the amount of $1,800. Finally, he asks for a forfeiture order for the weapons and ammunition and an order that all previous bails be noted in estreatment.

17Mr. Linds emphasizes that the principles of denunciation and deterrence to ensure public safety are paramount. He points out that the case against Ms. Hawboldt was a strong one supported by surveillance videos. The discharge of firearm without regard to other persons calls for a significant sentence. She was in a public place with a loaded prohibited firearm when she discharged the gun. While no one else was injured in the vicinity, Ms. Hawboldt suffered significant injuries as a result of her driving. She was non-responsive when the car crashed to a stop. She had injuries that included a broken sternum. The photographs show that her car was totalled as a result of the collision after travelling at such excessive speeds. The driving was very serious and there were three to four police vehicles involved in the chase through residential areas. There was no compliance with traffic speeds or lights. Given that these events took place in downtown Toronto, it is fortunate that no one else was injured.

18While case law supports a period of imprisonment up to two years, given that Ms. Hawboldt has entered a guilty plea and that she was injured, in accordance with the principle of totality, a one-year consecutive sentence is appropriate.

19With reference to the sentence proposed, he points out that in the case of R. v. Gummer, [1983] O.J. No. 181 (C.A.) at page 49, the court held that the trial judge erred in directing that the fail to remain count be imposed on a concurrent basis. Martin J.A. wrote that the counts of fail to remain, and dangerous driving should be imposed consecutive to the other sentence as they “constitute invasions of different legally-protected interests.”

20Mr. Linds submits that Ms. Hawboldt received treatment in hospital and was on house arrest with ankle monitoring but cut the ankle bracelet and was at large for a period of time. For the fail to appear charge, he seeks six months as a sentence.

21Crown counsel further asks the court to impose a driving prohibition of 10 years as a significant deterrence given the nature of the offences and the driving record. Driving a motor vehicle is a privilege, not a right: see R. v. Rawn, 2012 ONCA 487 at para. 49 quoting R. v. Field, 2011 ABCA 48.

22Mr. Linds has reiterated to the court today his position on credit for pre-sentence custody. As of today, Ms. Hawboldt had spent 466 days in custody. The sentence should credit pre-trial custody in accordance with s. 719(3.1) of the Code and R. v. Summers [2014] S.C.R. 575 at 1.5 days for each day of custody He agrees that there should be some enhanced credit. However, the sentencing judge’s decision whether to grant enhanced credit for pre-sentence custody is highly discretionary: see R. v. Huang, 2020 ONCA 341 at para. 9; R. v. Duncan, 2016 ONCA 754; R. v. Dockery, 2020 ONCA 278 at para. 4; R. v. Omoragbon, 2020 ONCA 336.

23The defence had filed records from the Monteith Jail where there were 57 lockdowns including COVID-19 isolation protocols. However, a number of the lockdowns were partial. Crown counsel referenced Justice Akhtar’s decision in R. v. McNichols 2020 ONSC 6499 where he commented that a vast majority of the lockdowns were partial and awarded two months of credit for adverse effects because of lockdowns. He gave no additional credit for COVID-19 considerations. This was upheld on appeal 2022 ONCA 590 at para. 16. In addition, Mr. Linds points out that in R. v. Morgan, 2020 ONCA 279, the court held at para.8 that no additional credit should be given because of COVID-19 factors. There, the court cited R. v. Suter, 2018 SCC 34, 2018 2 S.C.R. 496 where Moldaver J at para. 56 noted that it is a fundamental principle of proportionality that: “collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.”. Crown counsel submits that while some credit should be given according to Marshall and Duncan, given the number of documented lockdowns at the institutions where Ms. Hawboldt was housed, the Crown will only agree that the 57 and a further 60 lockdowns be credited on a 1:1 basis. Mr. Linds does not support further credit as further documentation was not granted at the time.

24As for credit in accordance with R. v. Downes, [2006] O.J. No. 555 (C.A.) because Ms. Hawboldt breached the terms of release when she cut off her ankle bracelet for electronic monitoring and was living at large in Northern Ontario for almost one year and that she showed non-compliance with other bail conditions as well, Crown counsel says that Downes credit ought not to be awarded. However, he recognizes that sentencing judges can consider offences that were committed while an offender was on bail but should not punish the offender for the same misconduct twice and be doubled counted as an aggravating factor: see R. v. Hussain, 2018 ONCA 147 at para. 20; R. v. Li, 2017 ONCA 509 at para. 42. Mr. Linds submits that there is jurisprudence where the court has not awarded Downes credit for misconduct that occurred while on bail. In R. v. Place, 2020 ONCA 546 at paras 19 and 21, the court held that it was not an error to refuse to give credit for restrictive bail where the accused demonstrated her own misconduct which resulted in stringent bail conditions. The question of how much enhanced credit should be granted for strict bail conditions is firmly within the exercise of the trial judge’s discretion.

25The issue of Downes credit for time spent on bail with stringent conditions may also be considered in calculating the sentence as a mitigating factor where those conditions have affected the offender’s liberty and the ability to work and carry-on normal relations.

26In summary, Mr. Linds submits that credit for time in custody and time on restrictive bail should take into account the proper range of sentence and that Ms. Hawboldt has a criminal record with breaches of court orders and driving offences.

Position of the Defence

27Counsel for Ms. Hawboldt, Ms. Chung-Alvares, does not dispute that the appropriate sentence in this case is a global sentence of six years in custody but focuses her submissions on the issue of credit for pre-sentence custody and credit for restrictive bail conditions. Ms. Hawboldt has pleaded guilty and demonstrated remorse. The plea has obviated the need for a jury trial when resources are scarce. She is relatively youthful; she is 28 years old now. She has a limited adult criminal record for fail to comply and impaired driving. In a letter filed, she acknowledges the seriousness of the offences. She is facing a significant sentence for other charges being dealt with elsewhere.

28Ms. Hawboldt has suffered difficult life trauma. She was born in Canada. Her father is from Jamaica. She grew up in an area of violence. She was lacking supports. Her father had limited education. Her parents struggled to put food on the table. Her father sold drugs and became an addict. There was violence in the home. Sometimes the children would be kept home from school because of the violence.

29Counsel says that Ms. Hawboldt began to use drugs at the age of 12 and at the age of 13 years, she was a victim of a shooting. The children were left in the home to fend for themselves. Her father was deported. Ms. Hawboldt was relieved given the drug use and violence but also experienced a sense of loss. She continued to have a relationship with her father. Her mother says Ms. Hawboldt was the only one of five children to keep in contact with her father and she travelled to visit him. Her father passed away on March 2, 2024.

30Although it has been difficult for her to be in jail, she has completed her high school education through correspondence courses, she has volunteered for activities, and she has engaged in groups to help anxiety and depression. Further, she is on medication to address mental health issues. She is also awaiting surgery on her knee and is considered an excellent candidate for rehabilitation.

31Ms. Chung-Alveres points out that there is a mandatory minimum sentence for discharge firearm and that it takes into account special and general deterrence as well as rehabilitation.

32Ms. Hawboldt has been in custody for 466 days. She submitted an affidavit covering the period up to March 12, 2024, showing 57 days of lockdowns and a further letter and affidavit regarding an additional 60 days of lockdowns. Applying the credit in accordance with Summers, the credit would be 466 days at 1.5:1 which would equal 699 days or 23.3 months. Ms. Hawboldt had been on bail from September 21, 2020, and there were no breaches until April 9, 2022. Ms. Chung-Alvares seeks 13.19 months of mitigation in accordance with Duncan and R. v. Marshall, 2021 ONCA 344 and six months in accordance with Downes. Counsel argues that Ms. Hawboldt has pleaded guilty to the breaches and should not be punished twice. Furthermore, the house arrest impacted her greatly as set out in her affidavit.

33On the issue of conditions in the jail, in the cases of R. v. Persad, 2020 ONSC 188 and R. v. Antrobus, 2020 ONSC 600, the courts considered credit for having endured deplorable conditions in the jail. The courts found there was a deliberate state misconduct by consistently failing to meet minimum standards. These cases were decided prior to the pandemic. However, they recognized that while there is no mathematical formula for determining the amount of enhanced credit for harsh conditions, the court should exercise its discretion in formulating the amount to be granted. Counsel submits that the COVID-19 pandemic exacerbated already bad conditions in the jail.

34Counsel argues that there is no mathematical formula, and it is in the discretion of the court to credit an accused for having been incarcerated in deplorable conditions. Counsel submits that 13.19 months of credit is indicated given that Ms. Hawboldt has been in custody during a time when there were lockdowns because of the pandemic which required isolation protocols, there were staffing shortages and lockdowns due to construction.

35Ms. Chung-Alvares cited cases where credit was given for conditions during incarceration. In the case of R. v. Steckley, 2020 ONSC 3410, Justice Kelly gave 10 months of Duncan credit where the accused spent 132 days in lockdown with 57 days during the pandemic. In R. v. Baldwin, 2021 ONSC 7025, Maxwell J. deducted one year for harsh circumstances involving 124 days in lockdown. In R. v. Abdella, 2020 ONCJ 245, the court awarded 158 days of credit for each day spent in lockdown and an additional 35 days for each day spent in custody during the pandemic.

36Counsel averaged out the amount of time given for harsh conditions in the jurisprudence she cited which was 13.19 months of credit. Ms. Hawboldt has encountered hygiene issues, insects, triple bunking, temperature and water problems, airflow issues and laundry problems as well as delay in obtaining her medications. Accordingly, counsel asks this court to grant 13.19 months of credit for harsh pre-sentence conditions.

37As for Downes credit, Ms. Hawboldt lived under very strict conditions without a breach for 18 months and 20 days. In R. v. Joseph, 2020 ONCA 733, the court affirmed the approach at para. 108 that the criteria for deciding whether Downes credit should be given include the ability to carry on with work and other activities. In R. v. Dodman, 2021, the Ontario Court of Appeal reiterated the principles of Downes and granted 7 months for house arrest at a residential treatment. She acknowledges that pre-trial custody and being on bail are not the same: see R. v. Ijam, 2007 ONCA 597 at para. 37 where the court held that time spent by an accused under strict bail conditions is not the same as jail for the purposes of mitigating the sentence especially where the conditions did not prevent the accused from working, going to school and enjoying life. However, there should be mitigation where there is house arrest and other strict bail conditions.

38Ms. Chung-Alvares provided the court with some jurisprudence where Downes credit was given and seeks credit for one third of the time spent on restrictive conditions. In R. v. Lewers, [2012] O.J. No. 4554, the offender could not work and suffered considerable stress. The court quantified 11 months for 28 months where 39% was under house arrest. In the case of R. v. Brown, 2013 ONSC 4230, the court noted that the factors to consider are the length of time on stringent bail, the impact on liberty, the ability to carry on normal relationships and employment and where the accused was under house arrest for 21 months or 26%. Garton J. granted credit of 5.5 months credit. In the case at bar, Ms. Hawboldt had to be with a surety at all times. Ms. Hawboldt could not leave to go to work or to attend rehabilitation. Ms. Hawboldt seeks credit for one-third of the time on restrictive bail.

39Counsel for Ms. Hawboldt takes no position on whether a DNA sample should be ordered, agrees that a s. 109 order be made, and submits regarding the driving prohibition, that the order would be redundant given s. 41 of the Highway Traffic Act which imposes an indefinite suspension because of the operation of the flight from police offence (s. 41(1) of the Highway Traffic Act and ss. 320.13 and 17). She opposes a Victim Fine surcharge given that Ms. Hawboldt will be in custody for a significant period of time and does not oppose the forfeiture order.

THE LAW

40The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, [2005] O.J. No. 3532, 201 O.A.C. 138 at para. 77-78. The prevalence of gun violence in our community must be stopped through exemplary sentences. Justice Armstrong emphasized the plague of firearms and their profound consequences on the safety of the city and the need for exemplary sentences to deter others from arming themselves with guns. Possession of an illegal handgun is a serious offence warranting a severe penalty: see R. v. Nur, 2013 ONCA 677 aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. There, Justice Doherty wrote at para. 206:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

41The offence of discharging a restricted or prohibited firearm while being reckless as to the life or safety of others carries a sentence of up to 14 years of imprisonment and a minimum sentence of five years. In R. v. Jama, 2021 ONSC 4871, Schreck J. commented at para. 44 that where a gun was discharged where others are present but not physically harmed, the appropriate sentence range is from five to seven years. See also: R. v. Bellissimo, 2009 ONCA 49; R. v. Dhaliwal, 2019 ONCA 398; R. v. Abderezak, 2022 ONSC 6737.

42The offences of possession of a prohibited firearm and possession of a prohibited device call for sentences which emphasize denunciation and deterrence and protection of the public. This is particularly where the firearm offence involves unlawful possession of a loaded gun in a public place: see R. v. Morris, 2021 ONCA 680 at para. 71. In the circumstances of this case, these firearms offences all arise out of the same factual matrix as the discharge firearm.

43For the offences of dangerous operation and fail to stop, these offences also call for sentences that emphasize denunciation and deterrence. This is particularly so where the offender has a driving record. Section 718.1 of the Code references the principle of proportionality, that is, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An important aspect of that is the principle of totality in s. 718.2(c) which is to ensure that the “cumulative effect is not to impose a crushing sentence.: see R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42.

44Sentences for the offence of fail to comply with release orders, fail to appear are typically ordered to be served consecutively to any substantive offences in order to demonstrate that the breach is different from the substantive offence and engages different societal interests: see R. v. Maddigan, 2009 ONCA 269 at para. 1. However, again, the court is to consider the totality principle and whether the cumulative impact is appropriate, particularly with a youthful offender.

DECISION

45I turn to some of the general principles of sentencing set out in section 718 of the Criminal Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

46A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.

47I now consider the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Ms. Hawboldt’s background which is outlined in detail in the pre-sentence report.

48Ms. Hawboldt was born on October 12, 1995, and is now 28 years old. She is a Canadian citizen. She has four brothers ranging in age from 11 to 29 years. Her father was born in Jamaica and her mother was 17 years old when Brittany Hawboldt was born. Ms. Hawboldt’s parents had a tumultuous relationship and there was physical and emotional abuse in the home. Ms. Hawboldt was raised in Toronto and moved to Kingston in her later teenage years. Her father was deported to Jamaica 10 years ago because of criminal convictions and he died recently. He was a crack cocaine user and was violent with her mother and the children. The children were left at home on their own when they were quite young. Her mother had been unemployed, and her father trafficked drugs so the family had limited means. The dysfunctional family and abusive background had a significant impact on her. Fortunately, Ms. Hawboldt has some positive influences which included her aunt and a friend Brett Carvery who were interviewed by the probation officer along with her mother Cheryl Hawboldt who was present in court.

49Ms. Hawboldt had difficulty in school because of truancy (her mother often kept the children home to reduce the amount of violence by her father), there was a lack of food and Ms. Hawboldt had issues with fellow students and became involved in altercations. She was suspended on multiple occasions. She left school during Grade 10. However, she later completed her high school education while living with her mother in Kingston during the period of house arrest. She was awarded the diploma while in custody. She has had a sporadic employment history often because of lateness. She worked at a coffee shop, restaurants and retail stores through a community agency. She would like to become a trained youth mentor.

50Ms. Hawboldt began to use marijuana at the age of 12 years. She became involved in using harder drugs (pain medications and later MDMA and Ecstasy) when she was 15 years old. Following an automobile accident when she was 19 years old, she used pain medications regularly. At the age of 19, she began to use alcohol and would go binge drinking for four or five days at a time. She said that she used drugs and alcohol as an escape from her feelings and to deal with the mental health trauma from her dysfunctional upbringing. She also took pain medications to deal with pain from automobile accidents and having been the victim of a gunshot at the age of 13. She was under the influence of drugs and alcohol at the time of the offences.

51Ms. Hawboldt was polite and cooperative with the probation officer who prepared the pre-sentence report. She expressed shame for her actions that led to these convictions. Ms. Hawboldt has been seen by a psychiatrist at Vanier Centre and is taking medication to deal with Generalized Anxiety disorder and panic disorder. The time in custody has been helpful to Ms. Hawboldt - in having structure in her life and she is taking medication which has contributed to her gaining insight and wanting to rehabilitate herself.

52In her affidavit filed, Ms. Hawboldt outlined that she was arrested on these charges on August 14, 2020. She spent from August 14 to 27, 2020 at St. Michael’s Hospital because of her injuries from the collision. She was detained in custody at Vanier Centre for Women from her release at St. Michael’s Hospital in August until September 21, 2020. During that period, there were some days of COVID-19 protocols in place preventing outside visits and programs and she was subject to 199 hours of lockdown time. She was released on that date on a strict bail that included house arrest which required that she live with her mother in Kingston, Ontario and be subject to electronic monitoring. There were no breaches for a period of time which was 1 year, 6 months and 20 days. On April 9, 2022, she cut her ankle bracelet and was at large for almost one year. On March 14, 2023, she was arrested again and detained at Monteith Correctional Centre and has been in custody since that time. She remained at Monteith until December 7, 2023, when she was transferred back to Vanier and has been there to date.

53This would be a total of 466 days in custody as of today’s date.

54She notes in her affidavit that she was detained at the facilities during periods of lockdown and some restrictions on use of the yard for COVID-19 protocol. She kept notes of the conditions at the Vanier Centre which she attached to her affidavit. She described being in a holding cell with four other people and that she slept on mattresses on the floor on occasion. She described a lack of hot water, limited access to showers, laundry and the ability to flush toilets. There were several days of lockdown and segregation in November 2023 and from December 20, 2023, to January 12, 2024, because of COVID-19 protocols and in February 2024 because of construction on her unit which has continued until today.

55Ms. Hawboldt explained that full lockdown meant confinement to the cell for the whole day except for 20 to 30 minutes to have a shower or make a phone call. There were often line-ups for showers or for the telephone. On several occasions she was housed three to a cell. Access to showers at Vanier was difficult. Furthermore, due to lack of staff and lack of laundry, they often did not receive clean clothing and bedsheets. There were ants and earwigs on the floor. Ms. Hawboldt was able to participate in programs at Monteith and received certificates for that. At Vanier, given the frequent lockdown days, she could not participate in many programs. However, while in custody, she completed some programs on her own and reached out to an addiction counsellor. She completed a Bible study course and a letter dated February 28, 2024, from the Director of Crossroads for Prisoners confirms her involvement.

56In a letter dated August 11, 2023, from Nathalie Bouffard, Program Supervisor, Monteith Centre, she described that Ms. Hawboldt completed a number of programs and services including Bible studies, addiction counselling, recreation activities and life skills programs and attached the certificates of completion.

57In her affidavit filed, Ms. Hawboldt described the impact of being detained in custody. She had few personal visits and learned that her father had passed away in Jamaica which was difficult for her. She also described what it was like while she was on bail for more than 18 months. She felt depressed, was suffering from injuries from the collision including a broken sternum, a fractured foot and torn ligaments in her knees. Her mother’s townhouse was small, and she could not climb stairs. There were seven people living in the house at the time. Ms. Hawboldt says she could not work because of house arrest with ankle monitoring. She did manage to complete her high school through correspondence and participated in a program mentoring Indigenous and Black youth. She has found the previous years difficult on her physically, mentally and spiritually but believes “she is on a path of healing and growth.”

58I now turn to the circumstances of the offence. I have detailed the offences above and will not repeat them in detail. However, I note that the offences involved the use of a loaded restricted or prohibited gun which Ms. Hawboldt discharged in a reckless manner in downtown Toronto. The possession of the gun and magazine was illegal and dangerous and further exacerbated because it took place in a public place. The nature of the driving offence and fail to stop for police were offences that were extremely serious and constituted a real danger to the public including to police and to Ms. Hawboldt herself who was injured badly. The offences of fail to comply with release orders and fail to appear are offences against the administration of justice. In all these offences, deterrence and denunciation are paramount objectives.

59In summary, I consider the sentencing principles and the circumstances of the offender and of the offences. I consider that deterrence and denunciation are the overriding principles of sentencing here, but I also recognize that a sentence must take into account Ms. Hawbold’s circumstances including her background and the need for rehabilitation which I believe is already underway.

60As I have outlined above, with respect to mitigating factors, Ms. Hawboldt has entered guilty pleas to the charges for which she is being sentenced which demonstrates remorse for her actions. She has expressed remorse in her letter to the court and in her statement to the court. She has saved valuable court time. She has assumed responsibility for her conduct. Ms. Hawboldt’s personal circumstances including an extremely difficult childhood with abuse and violence in the home are relevant considerations. I consider Ms. Hawbold’s background of personal hardship to be extremely significant in that it contributed, in my view, to her criminality. That she is a racialized person is a very relevant mitigating factor in this case: see R. v. Morris, 2021 ONCA 680 at paras. 79, 81. In Morris, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing.

61An aggravating factor in this case is that Ms. Hawboldt has a criminal record although she does not have a prior firearm offence. I consider that she had possession of the gun in a public place and discharged the firearm in downtown Toronto in a reckless manner and could have injured or killed others. This is an aggravating factor. Further, she drove without regard to traffic lights or speed limits in a fashion which was dangerous and resulted in a collision where she was injured seriously, and she could have collided with other vehicles on the road including the police vehicles.

62In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offence and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for these offences, but that rehabilitation of the offender is also a key objective which ultimately protects society. I accept that Ms. Hawboldt has rehabilitative potential especially given that she has some support in the community and a strong desire to change her ways. She has completed courses and wishes to secure employment upon her release from custody. Her experience in jail, particularly during lockdowns that have existed throughout the pandemic has given her insight and a desire to change her behaviour.

63Sentencing is a fact-driven process where the court must consider the unique circumstances of the case. For the reasons outlined above, I impose the following sentence: for the reckless discharge of firearm, the sentence is five years’ imprisonment. For the offence of possession of a restricted firearm without being the holder of a licence, the sentence is one year served concurrently to the five-year sentence. For the offence of possess a prohibited device, the sentence is six months served concurrently to the five-year sentence. I also consider the relevant caselaw with reference to the driving offence and the breaches of court orders of release and how the sentence is to be imposed. For the offence of fail to stop, the sentence is six months of imprisonment imposed consecutive to the five-year sentence. For the offence of dangerous operation, the sentence is six months served consecutive to the fail to stop offence. For the fail to comply with release (ankle monitor), the sentence is six months; for fail to comply with release order (the condition of house arrest), the sentence is six months, for mischief under (the ankle monitor) the sentence is three months, for fail to appear on September 19, 2022, in the Toronto court the sentence is three months. The latter four offences are all imposed concurrently to the dangerous operation offence. The global sentence is six years of imprisonment.

64I now consider whether credit should be given for the circumstances of pre-sentence custody. In deciding whether enhanced credit is appropriate, the court will consider the conditions of the presentence incarceration and the impact of those conditions on the accused: see R. v. Duncan, at para. 6. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, however, Justice Doherty wrote at para. 52:

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.

65Ms. Hawboldt submitted an affidavit which outlined that because of the significant injuries experienced as a result of the collision, she was in hospital for almost two weeks, was transferred to Vanier Centre for Women where she was detained until September 20, 2020. Then she was released on strict bail conditions which I will discuss below. Following her re-arrest in March 2023, she was detained at the Monteith Centre and then transferred to Vanier.

66I consider that Ms. Hawboldt spent pre-trial custody in difficult conditions caused because of staffing shortages and precautions taken during the COVID-19 pandemic including housing too many inmates in a cell, the lack of clean clothing and bedding and the lack of opportunity for showers and telephone calls. She has also endured lockdowns because of construction in the jail. She has described the negative impact of the conditions throughout her incarceration on her physical and mental health.

67There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and the courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55.

68I agree with counsel for Ms. Hawboldt that there should be some credit to reflect the harsh pre-sentence incarceration conditions and the resulting impact on her. I consider the medical hardship that she has endured while in custody arising from the injuries from the collision including requiring knee surgery. This was mentioned by Ms. Hawboldt in her affidavit. She said she did not receive her medication but otherwise did not complain of inadequate care. That she had medical issues following the collision and requires knee surgery is a further consideration of the impact of those conditions on her. I consider all of these circumstances including the lockdowns, the health issues which made the conditions more onerous and the impact of the conditions on Ms. Hawboldt’s physical and mental health and order that credit of six months be given.

69Having served 466 days of pre-sentence custody, at 1.5:1 in accordance with Summers that would equal 699 days. In light of the harsh conditions of her incarceration, I credit Ms. Hawboldt with an additional six months or 72 days in accordance with Duncan and Marshall.

70Turning to the issue of Downes credit, as referenced above, in the case of R. v. Joseph, the Ontario Court of Appeal discussed the proper application of Downes credit at para. 108 and held that “Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody: Downes, at para. 29.” The court set out criteria to consider in assessing the weight of the mitigation to be given: “The amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546 (C.A)., at para. 20.” The mitigating effect on the sentence falls within the discretion of the trial judge: see Downes at para. 37. That there is no precise calculation for Downes credit was recently affirmed in R. v. Campbell, 2023 ONCA 483; at para. 25, citing R. v. Bakal, 2023 ONCA 177, at para. 62 and R. v. C.C., 2021 ONCA 600 at paras. 4-5. While some courts choose to grant Downes credit by setting off an amount against the sentence to be imposed, others view the punitive impact of bail conditions in the overall determination of a fit sentence: see R. v. C.C. at para. 5.

71In these circumstances, I acknowledge that Ms. Hawboldt was released on probably the most restrictive form of judicial release: house arrest with few exceptions and only in the presence of her surety and subject to electronic monitoring. Ms. Hawboldt was released to reside with her mother who was her surety to live in Kingston, Ontario. There were several other people living in the townhouse and this was extremely confining for her. She could not work or attend school. She made the most of the time by completing her high school education through correspondence courses. I do not reference this as justifying her conduct in any way when she cut her ankle bracelet and left the home and was at large for a significant period of time. However, I agree with her counsel that this misconduct is being punished through the offences charged and to which she is being sentenced. I do believe that Ms. Hawboldt should receive credit for the time spent under very restrictive bail conditions which had a significant impact upon her during the more than 18 months. I exercise my discretion and award credit of six months for Downes credit.

72To summarize, I impose a global sentence of six years which equals 2,190 days of imprisonment. In accordance with R. v. Summers, Ms. Hawboldt is credited for 466 days of pre-sentence custody at 1.5:1 which equals 699 days or 23.3 months. I exercise my discretion and award six months of credit for harsh pre-sentence incarceration conditions in accordance with Duncan and Marshall. I exercise my discretion and award six months of credit for stringent conditions while on bail in accordance with Downes. With a total of one year of such credit, the balance is 1,126 days or three years and one month of imprisonment remaining to be served.

73I further make an order under s. 109 prohibiting Ms. Hawboldt from possessing any weapon as defined by the Criminal Code for life. I also order that Ms. Hawboldt provide a sample of her DNA pursuant to s. 487.051(3) of the Criminal Code as she was convicted of both primary and secondary designated offences. There will be an order of forfeiture of the firearm, extended magazine, ammunition and the bullet proof vest found in the car following Ms. Hawboldt’s arrest. There will be a driving prohibition for 10 years. In light of the fact that Ms. Hawboldt will be incarcerated for a significant period of time and will have no means, I exercise my discretion and decline to impose a restitution order under s. 730 and I decline to impose a Victim Fine Surcharge. The matter of estreatment will be a matter for consideration in the bail estreat court.

Himel J.