COURT FILE NO.: CR: 415/21
DATE: 2024-01-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
D. Anger and S. Ford for the Crown Attorney
- and -
JAMAR STEPHENS
B. Vandebeek and C. Cotton-O’Brien, on behalf of the Offender
HEARD: November 27 and December 20, 2023
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] On August 17, 2023, after trial, the offender, Jamar Stephens (“Jamar” or “Stephens”), was found guilty of two counts of aggravated assault, contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C.- 46. The offences are alleged to have occurred on September 29, 2019 in the City of St. Catharines.
[2] Stephens was arrested and charged on March 27, 2020. He pleaded guilty and was sentenced for certain other offences on November 23, 2022, utilizing his pre-trial custody credit to that date.
Circumstances of the offence:
[3] The circumstances of the convictions at trial are outlined in the Agreed Statement of Facts (“ASF”) and exhibits filed by the Crown. Briefly, the salient facts include:
In September 2019, Stephens owned a handgun and compatible ammunition which he had purchased illegally;
Associates of Stephens had a familiarity with, and animosity towards, ‘Group 1’ member Saeed Savalanpour (“Savalanpour”) as demonstrated through social media records;
Immediately prior to ‘Group 2’s attendance in Niagara on the night of the shooting, there were a series of telecommunications between cellular numbers associated to members of ‘Group 2’, including Jamar, Dwight Stephens, Shamaree Wilson, Jayson Hypolite, and a subscriber ‘John Smith’;
The device associated to Stephens was located in the Greater Toronto Area at the time of the initial communications. Shortly after, a group composed of 10 males (‘Group 2’), including Jamar, Dwight Stephens, Shamaree Wilson, Jayson Hypolite, and Shaun Myers, attended Niagara, arriving in downtown St. Catharines shortly after 2:00 am on September 29, 2019.
‘Group 2’ wandered through the downtown core as a group. They were captured on CCTV outside 139 St. Paul Street (Pizza Pizza) appearing to look around for someone or something. No conversation was taking place between the members of ‘Group 2’ during this time; ‘Group 2’ returned to the area of St. Paul Street and William Street and gathered to the immediate west of 55 St. Paul Street (Karma Nightclub). The group of males then stood in a cluster for approximately 12 minutes, facing towards the entrance to the Karma Nightclub;
Upon the emergence of ‘Group 1’, including Savalanpour, members of ‘Group 2’ discharged one or more firearm(s). As a result of this confrontation, Savalanpour suffered multiple bullet wound injuries to his abdomen, consistent with being shot twice;
Five additional bystanders – Clelia Hinds, Michael Huggan, Arrianna French, Curtis Francis, and Rohan Thompson – suffered bullet wound injuries;
‘Group 2’ then fled the scene of the shooting. Jamar Stephens departed in his black Mercedes sedan, travelling with various members of his group.
Michael Huggans (“Huggins”), the only witness who observed the shootout, testified that Savalanpour approached Jamar’s group while pointing a firearm and fired the first shot at a male inside the cubby area. Huggans also described the second shooter (from Jamar’s group) as being inside the cubby. In response to the attack by Savalanpour, the male turned around and started firing wildly with his arm extended behind him. Huggans explained that the shots fired by the male inside the cubby were in quick succession. Huggans testified that there were eight shots all inside the cubby area.
The video surveillance shows Stephens outside the cubby area at this time. The only other witness who saw a firearm (but did not see the shots), was John Marshall. He saw a male in a blue t-shirt running down the street far from the shooting with a matte black handgun. Other video surveillance is suggestive of Jamar gesturing back towards the nightclub while running away from the scene.
The revolver owned by Stephens is grey and shinny. Eight casings are located in the same area right near the entrance to Karma. The forensic evidence confirmed that the eight casings came from two 9mm firearms. The bullet with Savalanpour’s DNA on it was from a 9 mm. firearm.
Positions of the Parties:
[4] The Crown seeks a global jail sentence in the range of 15 years for the two counts, with several ancillary orders. The Crown’s position takes into account the very serious nature of the crime with the use of firearms, resulting in a shoot-out in the early morning hours in downtown St. Catharines. The Crown says that the nature of this case warrants a substantial penitentiary sentence to reflect the principles of general denunciation and deterrence.
[5] Ms. Vandebeek, on behalf of her client, submits that the evidence lead at trial cannot establish beyond a reasonable doubt that Jamar had a firearm on his person at the time of the shooting and relatedly or that he fired any of the shots. No witnesses observed Jamar in possession of a firearm. Jamar testified that he was not in physical possession of a firearm at the time. He admitted that at the time of the offence he owned a revolver and compatible ammunition, however, he did not carry it with him that evening. Prior to this trial, he plead guilty to those offences related to the firearm and was sentenced to custodial term of four years.
[6] Counsel submits that the appropriate sentence ought to reflect her client’s limited involvement as a non-shooter party to the offence. While not condoning the violence, her client’s level of participation in the shooting and moral blameworthiness is lessened. The principles of totality along with mitigating factors and credit for her client’s custodial conditions ought to be afforded, along with Jamar’s exposure to systemic racism and poverty.
[7] After deducting the appropriate credits, counsel submits that any remaining segment of a period of incarceration ought to be served in the community with the imposition of a two years less a day, condition sentence. There is no issue with respect to the ancillary orders requested by the Crown.
Victim Impact Statements (“VIS”):
[8] Four of the victims in this matter testified at the trial. They spoke about the injuries they suffered as a result of being present on St. Paul Street on September 29, 2019. The medical records regarding their wounds were made part of the ASF.
[9] Arrianna French was struck by a stray bullet in the right leg which perforated an artery. She required an emergency blood transfusion and subsequently underwent surgery to remove shrapnel from her leg. She writes that the psychology side of this ordeal is having random memories about that night of the incident. Her whole perspective has been changed as now thinking at any point another human's choices can change my life in such a negative way. It was completely careless. She speaks about the ongoing physical and psychological impact of the shooting, noting that she has suffered life-long consequences for merely being in the wrong place at the wrong time.
[10] Rohan Thompson was also struck by a bullet in the left thigh. The impact shattered his femur, leaving him stranded and unable to flee the scene. He underwent emergency surgery and a large metal rod and two screws had to be implanted in his leg. Since suffering the gunshot, the pain in his leg is now a normal occurrence. Mr. Thompson writes about being a seasonal worker from Jamaica who was grateful for the opportunity to come to Canada in pursuit of employment. He is responsible for financially supporting a number of family members back home. His injuries have impacted his ability to work and earn income. He experienced fear both in the form of flashbacks to the night of the shooting and anxiety about having to testify in court.
[11] Curtis Francis suffered an injury to the back of his leg. After hearing gun shots, he felt pain near his knee and pulled out a piece of metal, consistent with a bullet jacket. He required sutures to treat his wound. Like Mr. Thompson, Mr. Francis describes coming to Canada for seasonal work and viewing this country as a safe place to live and work. He recounts a loss of sense of safety in the community following the shooting and the ongoing psychological impact of being the victim of violence on the streets.
[12] Clelia Hinds was struck by a bullet through her right thigh and had to be treated for uncontrolled bleeding on scene before receiving stitches at the hospital. She testified emotionally at the trial regarding her experience on St. Paul Street. Specifically, she described a feeling of helplessness as she sought for aid as people fled the chaotic scene. She has expressed that the trial was emotionally upsetting and elected not to provide any additional victim input for fear that re-living the event of that night again would cause further and unnecessary trauma.
Community Impact Statements:
[13] Rachel Braithwaite, Executive Director for the St. Catharines Downtown Association (“SCDA”) writes: “The SCDA represents over 700 commercial property owners and their tenants in downtown St. Catharines. The gun violence that occurred on September 29th negatively impacted the perception of St. Catharines and the sense of safety those living and working in the downtown have. Because of the seemingly random action of firing into a crowd of 50 plus people and the potential for severe casualties', news of this incident spread across Ontario, again with the negative perception of St. Catharines spreading further. The economic impact would be more of a residual impact from the decrease in customers due to safety concerns.”
[14] Former Mayor Walter Sendzik writes: “As Mayor of the City of St. Catharines during which a senseless act of gun violence took place during the early morning hours of September 29, 2019, this statement reflects the impacts that the shooting had on our community. In addition to the timing of the shooting during one of the most busy weekends in the downtown core of St. Catharines, the City was experiencing a resurgence of attention with the investments of over $150 million dollars into a new spectator sports facility and a new performing arts centre in the downtown core. These investments attracted significant private sector investments into restaurants and new retail shops. On Sunday, September 29, 2019 - it all came a grinding halt with the worst act of gun violence in the history of the St. Catharines.”
[15] “The shooting of six people in the heart of the downtown has caused significant emotional stress to our community. In the immediate aftermath of the shooting, there was a sense that downtown was no longer a safe place. News media continued to cover the shooting and its impacts for weeks, reminding people that downtown St. Catharines experienced a serious act of gun violence. Social media illustrated the impact as people commented about how GTA gun violence was now in St. Catharines. Overnight, all the effort to create a downtown that was safe and welcoming was undone with the pull of a trigger. The shooting took place during the Niagara Grape and Wine Festival which is the largest wine festival in the country. The City had just hosted one of the largest parades in history on the same street as the shooting only 12 hours earlier. People felt a sense of violation that they couldn't bring their kids downtown again due to the shooting. This has had a negative impact on businesses downtown. We have worked hard as a community to create an environment in our downtown that is safe and secure for everyone. A considerable amount of time and funds have been spent supporting business and residents living the downtown to create a sense of safety - no matter the time of day. People still talk about the shooting today - five years after it took place. In closing, gun violence is an extremely violent act and it has never be normalized in our community.”
Circumstances of the Offender:
[16] Jamar is presently 33 years old. He was born on September 27, 1990, in Toronto, Ontario. He was arrested for these offences on March 30, 2020 and has remained in custody at the Niagara Detention Center since that time. He has no prior criminal record.
[17] Jamar’s mother is Jamaican, and his father is from the Virgin Islands. He has three siblings, Dwight (age 35), Sashika (age 31), and Shakiya (age 23). His mother raised the four children on her own. Jamar’s father was in and out of his life during his childhood. Jamar never knew when he was coming back. At other times, his father drove him around, possibly drug dealing.
[18] Jamar’s mother tried her best, but struggled to provide for the children. They moved into a subsidized housing cooperative when Jamar was six years old and remained in that house for most of his life. When he was 23 years old, he moved in with his dad who was living in the St. Catharine’s area with his stepbrother, Javon. He got a work transfer to the Purolator Niagara location.
Pre-Sentence Report (“PSR”)
[19] The probation officer writes, inter alia:
The subject reported to be the second eldest of four children born to his mother Heather Myers and his biological father. He stated his parents never married and he was raised primarily by his mother during much of his formative years. The subject indicated he has always maintained a good relationship and regular contact with his mother and was residing with her at the time of his offences. He stated he has been estranged from his father for the past few years but maintains regular contact with his siblings and other extended family members. The subject indicated to be a high school graduate with no additional training or post-secondary studies. He acknowledged struggling academically during his time in school and being placed in classes for those with special educational needs for additional support. He stated he was diagnosed with Attention-Deficit Hyperactivity Disorder (ADHD) during his middle childhood years and adhered to a schedule of medication for treatment of his symptoms up until his early teens.
The subject's mother confirmed his education status and employment history. She stated he was well liked and known as a good worker at his previous position with the courier/delivery service and that he hoped he might be able to return to the same work again in the future. During his interview conducted at the Niagara Detention Centre, the subject presented himself in a respectful manner and appeared forthright in providing collateral contacts and personal information.
When questioned about the details of his offences the subject seemed open about providing information on what occurred. He acknowledged having been found guilty of the offences for which he was charged despite having pled innocent and appeared to accept limited responsibility for his actions. The subject expressed that he was not involved in discharging a firearm at any of the identified victims and feels he might have been mixed up with another individual. The subject reported during his time in custody he has experienced struggles with mental health that have included Post-Traumatic Stress Disorder (PTSD), Depression, anxiety and night terrors.
[20] The probation officer concludes that:
The subject was raised in a single parent household that was financially strained at times although he recalls basic needs were always met. He has no previous criminal history and denies responsibility for the offences of which he has been convicted. He indicated having struggles with mental health while in the institution and connecting with support for treatment of his symptoms.
[21] Sashika Stephens provided an affidavit and testified: “I work full time as an administrative assistant for the Ontario Works Department at the Employment and Social Services Division. Jamar and I have been close throughout our entire lives. We spent a lot of time together as kids. Being away from Jamar for years has been ve1y difficult for me and the whole family. I know that Jamar suffers from anxiety and depression.” She did not know that her brother was dealing in drugs and had weapons.
[22] Heather Myers provided an affidavit and testified: “I am Jamar’s mother. I work full time as a Program Support Officer for the Canada Revenue Agency. He had a close group of friends from the neighborhood that he met at a young age, who he remained close with into adulthood. He always loved music from a young age. Jamar was six years old when we moved to a subsidized housing co-op. I was unable to support three children on my own as their father was not contributing financially. Shortly after we moved there, Jamar was having trouble with school. He was diagnosed with ADHD. He began taking Ritalin and stopped taking it a few years later. He began an Independent Educational Program, which gave him extra help. It took him longer to learn things but he always tried hard to overcome his learning disability. I spoke about my concerns with Jamar's difficulty learning with teachers and raised the issue with the principal. I did everything in my power to have him properly assessed and placed into a program to help him. I was repeatedly given different excuses and he was not placed into the program until a new principal came into the school. Jamar has always been a loving person who wants to take care of people.” Ms. Myers did not know the details of the shooting and did not know about the firearm and ammunition in the home.
[23] Nathaniel Myers is Jamar’s grandfather. “I have known Jamar since he was born and he has always been a quiet, loving, kind and compassionate boy. He loves being around his family especially his siblings and his mom, he loves to do his music and he loved his job. I have had multiple conversations with Jamar about where he will live once he's home and we've all decided that he will come and live with me where his mom and sisters will be able to come and visit or stay whenever they want, we will all be able to keep an eye on him and monitor who comes over to visit.”
[24] In his affidavit, Jonathan Sinclair says: “I have known Jamar for as long as I can remember, we have been friends since I was about three or four years old. He is my closest and oldest friend. I know Jamar to be a very positive and supportive person, always making sure that the people around him are taken care and feel loved. Jamar has always been there for me through difficult times and I am prepared to be there for him now. I understand that it can be an adjustment…, but along with myself Jamar has many people around to help him navigate his way back to being the strong positive influence that I have always known him to be.”
[25] In her affidavit, Joanne Bovell says: “I am writing this letter on behalf of Jamar, whom I have known since birth. When I learned of the situation, I was in disbelief because Jamar has never been in trouble with the law and wouldn't hurt a fly. Jamar has a strong support system through friends and family and it is in his best interest to be able to be amongst those he loves. Jamar's upbringing has shown the strong values and morals that he has been surrounded by and it is shown in his place of employment and everyday life.”
[26] In her affidavit, Leisa Washington writes: “I am aware of Mr. Stephens’ charges, and I support him on this next journey to rebuilding his life with new inspiration, vigor, and tenacity. I am a certified National Basketball Association (NBA) and Women's National Basketball Association (WNBA) agent. Mr. Stephens has and will always be incredibly respectful, professional, and loving - even though his father wasn't present for most of his life in their home. He decided to work early on, by volunteering his time with my charity Canada Sports Foundation Canada and my former employer at Starlight Children's Foundation. Mr. Stephens will be volunteering at Durham Sportsplex in Oshawa where Canada Sports Foundation Canada's new home is upon his arrival home. He will continue his mentorship, helping children and youth learn new skills in basketball and enhance our reading program. Other young adults need a leader and mentor like Mr. Stephens. We have always been his support system, his family, friends, and confidants. Why?! Because he's always been an upstanding citizen, well-mannered, good, and kind.”
[27] Jamar provided an affidavit on his own behalf: “My morn tried her best, but I know she struggled to provide for us. We moved into a subsidized housing cooperative when I was six years old. This is the neighborhood I lived in nearly all my life. I made a group of friends in the neighborhood as a kid that I have stayed in touch with to this day. My dad did not have a steady job. Starting around age 10, I remember my dad would take me driving around in the car sometimes. It was around this time that I started to suspect my dad was selling drugs. Though we grew up in a low-income area, there was not a lot of crime in our area. My cousins lived in a much worse area than we did, in Malvern. When I was younger, I would sleep over at their house about once a month. I remember hearing gunshots at night about four or five times. As a child I had a difficult time in school. I was one of a handful of black kids at my school. I felt like the teachers were very hard on me. Another thing I wanted to do was work. When I was 15, I got my first job at McDonald's. I worked there for two years until my grandmother got me a job at Purolator. I worked at Purolator for 12 years, until the day of my arrest.”
[28] Jamar goes on to advise: “At this point in my life, I made a series of bad choices. I was spending time around people that I knew were involved in crime, though I am worried for my safety to give specific details. During my time in prison, I was the only Black person on my range at first, as most of the people of colour are placed in one specific dorm. The inmates and some guards refer to this dorm as "the jungle". I had a lot of difficulty in the dorms, as I witnessed people be physically attacked for no reason. As the dorms were open, anyone could attack you in your sleep. Though there were not many programs offered in prison, I did take Alcoholics Anonymous. I did not really think I had a problem with drinking, but I learned through the program that even a couple of drinks a day is addictive behavior.”
[29] At the conclusion of the sentencing hearing, and echoed in his affidavit, the offender expressed remorse and regret for the victims and the events that transpired that morning. “I want to say that I am very sorry for what happened the night of the shooting. I know that I played a role by driving those guys to St. Catharine's when I knew that they were trouble. I want to apologize to each of the victims who were hurt and to anyone who is worried about their safety. I know that it is my fault that I ended up in prison. I regret making the choices that led me to this point. If I am released, I want to go back to the person I was before.”
Case Law:
[30] I have been provided with numerous cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed.
As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar to the issues in the case at bar.[^1]
[31] Courts in Ontario have emphasized the evil of firearms within our communities. As Harris J. wrote in R. v. Kawal, 2018 ONSC 7531, at para. 11:
Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it, "Gun-related crime poses grave danger to Canadians." R. v. Nur 2015 SCC 15, per Chief Justice McLachlin, at para. I, see also Justice Moldaver in dissent, at para. 131 and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28. The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.
[32] It has long been recognised that deterrence and denunciation must be given primary effect in sentencing for firearms offences. In R. v. Danvers, (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77, the Ontario Court of Appeal wrote:
Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns ... Society must be protected from criminals armed with deadly weapons.
[33] In the case of R. v. St. Clair, 2018 ONSC 7028, at para. 47, Campbell J. discussed the appropriateness of significant penal consequences for firearms offences when combined with other indicia of criminality. Despite repeated attempts to convey society's repudiation of firearms offences, possession and use of illicit firearms continues to be a pervasion problem in Ontario, requiring ongoing denunciation. When firearms are utilized in public, their impact can be traumatizing to victims and witnesses alike.
[34] In the seminal case of R. v. Bellissimo, 2009 ONCA 49, the Court of Appeal established an initial sentencing range for serious firearms related offences. In Bellissimo, the accused had entered the victim's restaurant carrying a .40 calibre handgun and discharged at least six rounds of ammunition. The restaurant owner was shot in the back, a bystander suffered a minor injury, and a third individual narrowly missed being struck.
[35] Following a trial, the accused was convicted of aggravated assault and possessing a weapon for a dangerous purpose. The trial judge sentenced the accused to eight and a half years custody. On appeal, the sentence was found to be manifestly unfit. At paras. 4- 5, the Court of Appeal specifically noted that:
We see virtually no mitigating factors. The seriousness of these crimes is hard to overstate. The respondent fired several shots in the restaurant. One significantly injured a victim, another caused a minor injury to a victim, and a third narrowly missed killing a third victim.
General deterrence and denunciation must be given a paramount weight in sentencing for these kind of dangerous gun related charges. We think the sentence fails to give adequate weight to these factors. We think a proper sentence is ten years ...
[36] The Court of Appeal went on comment that, in general, the range of sentence for these kinds of serious gun related offences will be between seven and 11 years.
[37] Since Bellissimo, the prevailing jurisprudence in Ontario has adopted this range in cases of firearms-related violence: see R. v. Dhaliwal, 2018 ONSC 303, R. v. Reis, 2017 ONSC 2044, R. v. Callaghan, 2017 ONSC 1853, R. v. Ali, 2016 ONSC 8190, R. v. Nadon, 2016 ONSC 3518, R. v. Alexander, 2013 ONSC 171, R. v. Michael Larmond, 2011 ONSC 7170, R. v. Walker-King, 2011 ONSC 4307.
[38] Specifically, in R. v. Jefferson, 2014 ONCA 434, the Court of Appeal re-affirmed the appropriateness of high single digit to double digit sentences for serious firearm offences. The accused in that case was found guilty following a trial before judge and jury of discharging a firearm and possessing a firearm while prohibited. Evidence at the trial established that the accused walked out onto a roadway, stopped in front of a vehicle occupied by the victim, pulled out a gun, and fired a single shot through the car window. The bullet struck the victim in the arm. The accused and victim had a history of animosity, violence and drug trafficking. Although the accused had sought to raise the issue of self-defence, the Court of Appeal upheld the trial judge's ruling that there was no air of reality to that claim on the facts of the case. The trial judge sentenced the accused to 10 years.
[39] In upholding the sentence as fit in the circumstances, the Court of Appeal in Jefferson noted, at para. 14:
... Although the trial judge favoured an increase in the range of sentences for offences involving violence and firearms, in the end he imposed a ten-year sentence for the offences of discharging a firearm while prohibited. This was inside the seven to 11 year range for serious firearm offences set by this court in R. v. Bellissimo, 2009 ONCA 49, at para. 3. Moreover, the trial judge explicitly stated that "Mr. Jefferson's crime and his circumstances put him at the upper range of the existing range."
[40] In R. v. Weeden, 2019 ONSC 773, the accused was found guilty following a trial of aggravated assault, possession of a loaded firearm, and discharge with intent. He had attended a bar in downtown Toronto with his brother when a dispute had broken out with another group of club-goers. The accused retrieved a gun, brandished it at the other group, and fired a single shot. No one involved in the conflict was injured, but the bullet struck the victim who was sitting in a vehicle nearby. The accused then fled the scene.
[41] In determining the appropriate sentence, the judge in Weeden considered that the offender had a prior criminal record and was on a weapons prohibition order. The court noted that it was aggravating that the accused had time, albeit short, to deliberate on his actions, that he intentionally shot his gun towards a large group of people who could easily have been killed, and that the offence took place in a public place where bystanders were put at risk.
[42] The court ultimately imposed a sentence of nine and a half years on the charges of aggravated assault and discharge with intent. In reaching this conclusion, the Court adopted the Bellissimo range, holding at para. 41 that “given the seriousness of gun violence offences such as this one, the range is between seven and 11 years” (citations omitted).
[43] More recently, in the case of R. v. Derby, 2022 ONSC 2266, the accused pleaded guilty to four charges arising out of a shooting in downtown Whitby. In that case, the accused had committed a drive-by shooting during which he discharged eight bullets at the victim's vehicle. A number of projectiles were found inside the vehicle, but the victim was uninjured.
[44] The accused had a number of significant mitigating factors. He was 31 years of age and had grown up in poverty, with 19 siblings. He had started working at 11 years of age. After periods of being placed in foster care, the accused had lost his closest sibling to an unsolved murder which had a substantial impact on him. The accused had experienced racial discrimination and developed a fear of police. He had further served his pre-trial custody during the height of the COVID-19 pandemic and was subject to particularly harsh conditions. However, the offender had a “troubling” criminal record including manslaughter, robbery, property crimes and breaches of probation orders.
[45] After reviewing the case law relevant to sentencing for firearms-use offences, the judge in Derby went on to note that the Bellissimo range was not restricted to cases of actual injury, but also applied where injury was intended. The fact that one of more victim ultimately suffers bullet wound injuries ought to, instead, be considered as a significant aggravating factor: at para. 81.
[46] In Derby, at para. 90, the court concluded that, despite the absence of any injuries to the victim, it was "confident that this case falls within the Bellissimo range. It is undoubtedly the kind of serious gun related offence to which the Court of Appeal intended the range to apply."
[47] In this vein, I do not agree with Shreck J.’s analysis in R. v. Ferdinand, 2018 ONSC 7476 at para. 49, to the effect that Bellissimo is only applicable on whether the offence falls into the category where the offender did intentionally discharge the firearm or meant or intended to harm someone.[^2]
[48] Returning to Derby, Boswell J. ultimately held that the appropriate sentence for the offence and offender, even without any actual injury resulting, was one of 10 years. The Court reduced this number to eight and a half years in consideration of the accused's guilty plea, the COVID-19 pandemic and documented background of the impact of systemic racism on the offender.
General Principles:
[49] The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[50] Section 718.2 of the Criminal Code addresses the important principles of totality, along with parity and the principle of restraint amongst other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
[51] There is no disagreement amongst counsel that the primary objectives in cases of this nature are general deterrence and denunciation. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: see R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23.
[52] Denunciation requires that a sentence communicate society’s condemnation of an offender’s conduct posed by loaded handguns: see R. v. Nur, 2015 SCC 15, R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 (even for first time offenders) and R. v. Marshall, 2015 ONCA 692, at para. 49.
Party or Principle Offender?
[53] Where a verdict is reached by a jury, no reasons will be issued. It is therefore incumbent upon me to make any additional findings of fact necessary to render a fit sentence. I am required to draw all inferences necessarily inherent to the verdicts reached by the jury. Pursuant to s. 724(2)(a) of the Criminal Code, "[w]here a court is composed of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilt."
[54] At sentencing, the burden remains on the Crown to prove beyond a reasonable doubt any aggravating features: see R. v. Gardiner, 1982 CanLII 30 (SCC), 1982 SCC 30, [1982] 2 S.C.R. 368. Similarly, a judge may not find as proven any facts that would undermine the conclusions reached by the jury: see R. v. Brown, 1991 CanLII 73 (SCC), 1991 SCC 73, [1991] 2 S.C.R. 518, R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para, 17, R. v. Millard, 2018 ONSC 1299, at para. 8.
[55] When the factual implications of the jury's verdict are ambiguous, the trial judge may make their own determination of the facts necessary for sentencing based on the evidence led at the trial or on any additional information led at the sentencing hearing. There is no presumption that the jury reached their verdict on the least morally blameworthy theory of the case or the facts most favourable to the defendant.
[56] Both principal and party liability were left with the jury. I informed the jurors that, on the first basis, they could conclude that Stephens attended St. Catharines in possession of a firearm and discharged that firearm as part of a confrontation with Savalanpour and ‘Group 1’. If the jury concluded that Stephens repeatedly discharged a firearm on the crowded street, they could find him guilty of both counts of aggravated assault as a principal.
[57] Alternatively, the jury was instructed that they could find Stephens guilty on the basis of party liability. As it relates to Savalanpour, the jury could conclude that Stephens was a party to the offence on the basis that he aided members of his group ('Group 2') with a planned attack on Savalanpour, which he knew would involve the use of one or more firearms. As it relates to the bystander victims, the jury could conclude that Stephens was part of a joint venture by members of 'Group 2' to attend Niagara and commit an aggravated assault against Savalanpour by shooting him and that, as part of this intended offence, the unintended but foreseeable offence of striking bystanders on scene with stray bullets would occur. On this basis, he would similarly be guilty of the further aggravated assault charge.
[58] Regardless of the mode of liability accepted by the jurors, the necessary implication of the findings of guilt is that the accused knew of, and was a party to, a plan to shoot Savalanpour in a public place and that there was a foreseeable risk that other people would be shot in the crossfire.
[59] I find that Stephens actively participated in this plan, despite the obvious risk to the public. Stephens was 29 years of age at the time of the incident and was old enough to understand the danger inherent in his conduct.
[60] Having reviewed the evidence and submissions of counsel, I am not satisfied beyond a reasonable doubt that the Crown has established Stephens’ involvement as one of the principal shooters.
[61] However, in light of the patent dangerousness of the conduct undertaken in concert by Stephens, and his associates, I agree with the Crown that it is of less significance whether Stephens is a principal or a party to the shooting. The jurisprudence provides clear support for the conclusion that, in cases of planned, premeditated firearms violence, the moral culpability of all involved will be extremely high: see R. v. Stoianovski and Stoianovski, 2018 ONSC 4243; R. v. Rhoden [2020] O.J. No. 6128 (S.C.).
Aggravating factors:
[62] The aggravating factors include the offender’s role in the incident and confrontation. The evidence at trial is consistent with the prosecution’s theory that there was a pre-planned attack on Savalanpour, with the offender’s direct involvement as a party, resulting in a gratuitous shooting.
[63] The nature of the shooting incident itself, in downtown St. Catharines with crowds of people and the attendant, wanton violence cannot be understated.
[64] It is not an aggravating factor that Stephens plead not guilty and had a trial. Indeed, it cannot be said that the plea was without merit. Defendant’s counsel was successful in reducing the number of counts from the original indictment. Ultimately, most of the charges alleged by the prosecution could not be proven, and some were dismissed by way of a directed verdict. However, Stephens does not gain the benefit of mitigation for a plea of guilty.
Mitigating factors:
[65] There are numerous mitigating factors. While denying being the shooter, in his comments to the court and in his affidavit, Jamar had expressed some degree of regret for his actions. I am persuaded that he has demonstrated some remorse. He did not want anyone to be hurt and wishes that he was never involved in the events that occurred that evening.
[66] Jamar is not a youthful first offender. However, he is of otherwise good character, with no prior criminal record. He had been steadily employed. Family members and friends speak highly about the type of person that he is: “a loving person who takes care of people”, “quiet, kind and compassionate”, “very positive and supportive person”, having a “friendly and calm demeanor”, “pleasant and respectful”, and, having demonstrated “resilience, strength and patience in the face of adversity.”
[67] Jamar has support in the community and a plan to get himself on the right track when he is released from custody. His mother, sisters and grandfather are willing to assist him financially, and emotionally, and have been in contact with a community-based program in Toronto about potential opportunities. Jamal has expressed a desire to change and avoid associating with the wrong types of people.
[68] I agree with counsel that the manner in which the offender has chosen to litigate this matter at trial is a mitigating factor. Counsel’s conduct of his defence demonstrated a respect for the court process. Stephens had entered guilty pleas to a number of serious offences that all formed part of this case. While at trial he litigated only the offences for which he maintained his innocence, in doing so, he made reasonable concessions which resulted in an ASF, establishing much of the Crown’s case. This saved court time and resources as it avoided weeks of evidence and witness testimony.
Analysis:
[69] A court is guided by the overarching principles of proportionality. The starting point for any sentencing is that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[70] Section 718(2)(b) of the Criminal Code specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[71] At the outset, I reject the defence submissions for a conditional sentence. In my view, such a sentence is wholly out of the appropriate range for these offences and this offender.
[72] The direction from the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 87-105, instructs me that I am to consider local conditions. The prevalence of firearm offences in St. Catharines is a rare occurrence however it has not only impacted the injured victims but the community as a whole. The underlying nature of the offence serves to reinforce fear and undermines the safety of citizens in this community. The fact that the firearm was used, at least by members of the offender’s group, in the manner evidenced by the ASF is a highly aggravating factor.
[73] It is fortunate that the victims, while sustaining serious injuries, did not die. Where an accused aids in a plan to commit serious firearms offences, the courts have concluded that the party carries a similarly high degree of moral culpability. In this case, participating in an event, either as principal or party, with the discharging of a firearm with intent to endanger life must be considered as falling near the upper end of the gravity spectrum.
[74] With respect, counsel has also misapplied the legal principles in her submissions for a conditional sentence. As I understand her submissions, counsel contends that I could consider the totality principle along with her client’s time already served in custody to arrive at a remaining disposition of two years less a day.
[75] Notwithstanding that Part XXIII and s. 742.1 was recently amended to allow for a conditional sentence, the crimes implicated here are both violent, and have a maximum sentence of 14 years. The prevailing jurisprudence clearly provides for a penitentiary sentence, and there was no doubt that such a sentence would be imposed in this case. The question is the quantum.
[76] Pretrial custody may be considered as a part of the total sentence but not when determining the range of sentence. In other words, where a penitentiary sentence is warranted, pre-sentence custody, which may bring the remaining time to be served into the reformatory range, cannot then be considered for the purposes of a conditional sentence. Any period of pretrial custody cannot be fashioned to make a conditional sentence available to an accused on that basis: see R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, 196 C.C.C. (3d) 97; R. v. Sharma, 2022 SCC 39, 420 C.C.C. (3d) 1, at para. 10.
[77] Returning to Rhoden, in that case the accused plead guilty to one count of discharge firearm with intent and two counts of aggravated assault on the basis of party liability. The accused and his co-accused attended a park in broad daylight looking for their intended victim. When they located the victim, the co-accused opened fire, discharging a firearm 10 times. The intended victim was uninjured, but two children playing nearby were struck with errant bullets.
[78] The facts made it clear that the accused was not, himself, the shooter, but rather that he had been a party to the offence. The court noted that the accused thereby shared a high degree of moral blameworthiness.
[79] As the degree of moral culpability, it was admitted by the offender, that though he did not discharge the firearm, he nevertheless was a party knowing that his associate was going to discharge the firearm with the intent to injure the victim; and through transferred intent resulted in the aggravated assaults in relation to the two innocent children: at para. 9.
[80] In considering the mitigating factors, the court placed great emphasis on the admission of guilt and plea by the accused, finding that this factor spared the victims from having to testify in court and "entitled (the accused] to a significant reduction in what otherwise would be a fair and fit sentence."
[81] The accused had also spent significant time in pre-trial custody during the height of the COVID-19 pandemic, during which he had completed various rehabilitative courses. The accused was only 23 years of age at the time of the offences, had the support of his family, and would be subject to deportation following completion of his sentence.
[82] Similar to this case, in Rhoden, the judge determined that aggravating the need for an exemplary sentence were the circumstances of the offences, including: the accused knew his co-accused had, and was prepared to use an illegal handgun; the offence was pre-planned involving the accused coming from out of town to commit a targeted attack; the public location of the shooting; the number of shots fired; the vulnerability of the victims; and the trauma to the victims, their families, and the community: at paras. 28-39.
[83] After balancing the relevant considerations, and the primacy of the principles of denunciation and deterrence, the judge ultimately acceded to the joint submission for a sentence of 13 years for being a party to the discharge of a firearm and aggravated assault of the two victims: Rhoden, at para. 44.
[84] In imposing this sentence, the judge reached his conclusion mainly on the fact that it was a plea of guilt. If it were not for the plea of guilty, the sentence would have had to have been much higher. The judge stated at para. 41-42:
The community expects the court to impose a sentence that denounces such violence and reckless behaviour. The message of this court must be clear that those who are going to use firearms in public areas are going to the penitentiary to [sic] an exceptionally long period of time ... No child, no innocent person, should have to pay the price for gun violence in the streets of our city of Toronto.”
[85] Returning to Stojanovski and Stojanovski, the case is distinguishable as it pertained to the offences, but otherwise instructive. It involved two brothers who were charged with attempted murder and discharge with intent. The Crown theory at trial was that, following a dispute with the victim, the brothers drove at the victim discharging a firearm at least four or five times.
[86] In Stojanovski and Stojanovski, two modes of liability were left before the jury, that both accused were principals and discharged their own firearms, or that only Daniel Stojanovski discharged a firearm and his brother, Darko Stojanovski, aided in the offences. The jury convicted both accused.
[87] The aggravating features included the accused's 'obvious contempt for the lives and safety of others' by carrying loaded handguns in public, the location of the shooting in a residential neighbourhood where bystanders were present, the real possibility that other people would be wounded in the crossfire, and the substantial injury sustained by the single victim. The accused, who were twins aged 34, were not viewed as youthful offenders. One had a prior criminal record, the other did not.
[88] The trial judge ultimately imposed a sentence of 18 years on both accused, without distinction on principal or party liability. In imposing the sentence, the court held: “The public must be protected from these two men and other like-minded individuals must be deterred from resorting to the cruel and callous use of guns in our communities with devastating results: Stoianovski and Stojanovksi, at para. 33.
[89] Darko Stojanovski subsequently appealed from his conviction and sentence. In upholding the trial judge the Court of Appeal held that there had been no error, nor prejudice, in leaving both principal and party liability with the jury: R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at paras. 62-80, 102-115.
[90] Finally, a similar case to the one at bar arose in the Niagara Region in 2017, approximately two years prior to these events: R. v. Chapman, unreported decision (dated August 31, 2022), and R. v. Chambers, unreported decision of Ramsay J. (dated October 12, 2022).[^3]. In an investigation dubbed “Project L8 Night”, the two accused, Jeremy Chambers (“Chambers”) and Jermaine Chapman, (“Chapman”) attended the L8 Night Club, located in Thorold. The accused left the nightclub shortly after 4:00 a.m., entered a vehicle, and drove back, passing the entrance to the club. A firearm was discharged from the moving vehicle and five bystanders were shot. There was no evidence that the shooting was organised or premeditated and the intended target of the shooting was unknown (although there was evidence that someone in the crowd uttered a racial slur just prior to the shooting).
[91] Both accused ultimately entered pleas of guilt to charges of aggravated assault. Neither accused took responsibility for discharging the firearm that caused the injuries, but each agreed that they were in the vehicle at the relevant time and were aware of the presence of the firearm and its intended use. As a result, several victims sustained very serious injuries.
[92] Chapman was 26 years of age and had no prior criminal record . A pre-sentence report revealed that he had a particularly difficult upbringing, experiencing abuse at the hands of his mother, severe conditions in the child welfare system, and suffering anti-Black racism. Despite this, he had completed his education, worked as a carpenter and youth justice worker, and spoke at fundraisers as a 'poster child for black youth'. He entered a plea of guilt, acknowledging responsibility for the offences and preserving court resources at a time when judicial back-log was at a high due to the pandemic. His pre-sentence custody was served during the height of the pandemic and involved multiple lockdowns and restrictions.
[93] In noting the extremely aggravated nature of the offending, Arrell J. observed at pp. 12-13:
I have taken into account the principles of totality of sentencing, the need to protect society from the offender, denunciation of this crime and deterrence of Mr. Chapman and others that such dangerous acts of violence will not be tolerated by this court or the community. I have also considered the rehabilitation of Mr. Chapman. But given the outrageous and horrendous facts of these crimes, I find that denunciation and deterrence are of higher priority. Mr. Chapman is not a youthful offender. He knew better than to be part of a shooting in a crowded public area. He knew there was a gun in his car. He was driving and he was the one who did not leave the area but instead decided to go back. Twenty shots were fired before Mr. Chapman decided to exit the area. He knew people were going to be hurt and possibly killed and he did not care. His actions are inexcusable and horrific. He is very lucky he is not before me on multiple murder charges.
[94] Arrell J. concluded that the appropriate range of sentence for the offence and offender was between 10 and 13 years. In light of the significant mitigating factors related to the offender's background, his plea of guilt, and the collateral consequences of COVID-19, the court ultimately sentenced Chapman to 10.5 years for his involvement in the aggravated assault.
[95] Chambers was 31 years of age and had a non-violent criminal record at the time of the offences. He similarly pleaded guilty to the aggravated assault of the five victims but denied personally discharging a firearm. On a joint submission, Chambers also received a sentence of 10.5 years in relation to the shooting event in Niagara on the basis of parity with his co-accused.
Application of Sentencing Principles to the Facts of this Case:
[96] I agree with the Crown that the facts of this case are most egregious. I am satisfied that implicit in the jury's verdict is that they accepted Stephens was part of a pre-arranged plan to attend Niagara and do harm to Savalanpour.
[97] Stephens attended the Niagara Region as part of a coordinated strategy. He came in his own Mercedes, with a colleague, and travelling with a group of 10 associates, at least some of whom were in possession of loaded handguns. He came prepared to engage in a firefight on a public street.
[98] The defendant's group emerged on to St. Paul Street during one of the busiest nights of the year, at the height of the annual Grape and Wine Festival celebrations. They walked the downtown, where people were out in numbers, socializing with friends, enjoying the last of the warm weather, and engaging in community entertainment. The significant public presence of people could not be missed.
[99] The offender and his associates were not, however, dissuaded by this. They were captured standing outside of the Pizza Pizza located at 139 St. Paul Street, looking intently towards the storefronts and roadway. Having not located Savalanpour, the offender and his associates returned to the area of the Karma Nightclub. It was there that they lay in wait for nearly 12 minutes. When Savalanpour emerged from the nightclub, 'Group 2' carried out their intended plan and there was an exchange of fire, with ‘Group 2” discharging one or more of their firearms at their intended victim. The shots were fired despite the growing crowd that had congregated in the immediate area, as the club was closing. These shots were fired despite the obvious safety risk they posed to innocent members of the public, and with complete disregard for the potentially dire consequences to anyone else.
[100] Savalanpour was shot twice, at close range, through the lower abdomen. He suffered serious injuries requiring urgent trauma treatment. Five other bystanders, unknown to Stephens and entirely uninvolved with the conflict between the two groups, were struck by bullets in the crossfire. It is only by 'pure luck' that neither Savalanpour nor anyone else in the vicinity was killed.
[101] In finding that Stephens was party to the shooting, the jury necessarily rejected his evidence that he did not know of any plan to engage in a shooting and was attending St. Catharines to look for girls and waste time.
[102] These guns were concealed on their persons and were also loaded and ready for use at a moment's notice. Indeed, multiple shots were fired in rapid succession. The forensic evidence reveals that a minimum of eight shots were discharged in the confrontation on St. Paul Street. Even where no one is injured, the decision to open fire on a public street occupied by pedestrians speaks to the sheer reckless and wanton disregard and obvious contempt for the lives and safety of others.
[103] As mentioned, amongst the chaos caused by the actions of the offender and ‘Group 2’, five innocent bystanders were struck by bullet fire. Each of the victims were simply out enjoying a night on the town. Just as the court noted in Weeden, at para. 42: "…People should be able to go out for an evening in downtown... without worrying about getting killed by a stray bullet.”
[104] The shooting was traumatic for the victims, witnesses, and community. I heard from several of the victims and witnesses to the events of September 29, 2019 at the trial and has received the VIS and the Community Impact Statements of the Mayor and Director of the Downtown Association. This shooting- the result of Stephen' decision, along with his associates - shook the local community's sense of safety. As Boswell J. so aptly stated in Derby, at para. 45: "... the impact that a shooting like this one has on the community is profound and distressing... These types of incidents are shocking. They make people afraid in their own communities". Indeed, no one should have to be fearful of getting shot while simply walking down the street.
[105] In sum, while not the shooter, Stephen’s actions nonetheless demonstrated a coordinated, planned, and concerted effort to seek out a violent confrontation. At no time, did Stephens seek to distance himself, depart from the common intention, or extricate himself from the situation. He acted in concert with his associates in discharging firearms in a public setting, injuring citizens and placing the lives of innocent bystanders in jeopardy.
Anti-Black Racism in the Social context:
[106] Ms. Vandebeek, while not stressing the point, argues that her client’s experience with anti-Black racism throughout his life and the impact of that racism on him are compelling mitigating circumstances.
[107] In the leading case of R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the Court of Appeal for Ontario considered how courts should take evidence of anti-Black racism into account on sentencing. The Court provided a helpful summary of their principal conclusions at para. 13 of the decision. These include, but are not limited to: Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence, the gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred, accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s life experiences with anti-Black racism do not impact on the gravity of the offence.
[108] The Court of Appeal observed that sentencing judges have always taken into account an offender’s background and life experiences when assessing the offender’s moral responsibility for an offence. Experience with anti-Black racism and the impact of that racism on the offender is unquestionably part of this offender’s background and circumstances.
[109] Regardless of the mitigating impact of an offender’s lived experience with anti-Black racism, social context evidence may be relevant to the court’s assessment and appropriate blending of the relevant sentencing objectives. Understanding the offender’s background better enables the sentencing judge to craft a sentence that best reflects the “needs and potential of the offender”, while paying due respect to the seriousness of the offence: Morris, at para. 103.
[110] Of importance, is the following statement in Morris, at para. 97:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L., at paras. 45-49; R. v. Elvira, 2018 ONSC 7008, at paras. 21-25; R. v. Ferguson, 2018 BCSC 1523, 420 C.R.R. (2d) 22, at paras. 126-29; and R. v. Biya, 2018 ONSC 6887, at para. 36, rev’d on other grounds, 2021 ONCA 171.
[111] Recall that in Morris, the accused was convicted of possession of a loaded, prohibited handgun and carrying a concealed weapon. There was evidence that Mr. Morris’ experience with anti-Black racism in his community played a role in the development of his strong fear for his personal safety in the community. The Court of Appeal recognized that his genuine fearfulness offered a mitigating explanation for his possession of the handgun.
[112] In this case, I am not persuaded that anti-Black racism plays a role in this sentencing for this offender. As Jamar concedes: “Though we grew up in a low-income area, there was not a lot of crime in our area. My cousins lived in a much worse area than we did..”
[113] Stephens grew up in a subsidized housing in Toronto. He neither lived nor was significantly exposed to areas, where other members of his family, including Mr. Myers, resided. He had the benefit of his mother’s efforts and to make his life better. I am convinced that his mother had provided him with opportunities for change, for support, counselling, and much love and assistance. Fortunately, he was not habitually subjected to the violence, crime and systemic racism, as found in other notorious parts of Toronto.
[114] Overall, this offender’s moral blameworthiness remains high, even in the context of any lived experience. Otherwise such mitigation becomes a discount based on the offender's colour. Clearly, such a “discount” is not recognized by our law. I am not persuaded by counsel’s assertions that her client’s lived experience is not based simply on the existence of overt or institutional racism. In fact, the overall evidence belies this assertion.
[115] It is true that there need be some linkage between the offender’s experience and the offences that brings him before the court: R. v. Ansah, 2021 ONSC 6339, at paras. 41-42. However, as the Crown attorney points out, the choices that bring Stephens before the court today were his choices. And they were fully-informed choices, with resulting grave consequences. When considering the moral blameworthiness of this offender in this case, I agree with the Crown that the connection between the overt and systemic racism identified in the community and the circumstances that are said to explain or mitigate the offender’s criminal conduct in issue is negligible or non-existent.
Pre-Sentence detention:
[116] There is evidence that Jamar spent time in custody sometimes, and was subjected to lockdowns because of staffing shortages. In addition to this, he was, on occasion, “triple bunked”. The unacceptability of such conditions has been the subject of frequent judicial disapproval: see, for example, R. v. Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at para. 30; R. v. Johnson, 2022 ONSC 5689, at paras. 69-70; R. v. S.H., 2022 ONSC 4900, at paras. 88-90; R. v. Doyle, 2022 ONSC 2489, at paras. 54-59; R. v. T.T., 2022 ONSC 722, at para. 46; R. v. Osman, 2022 ONSC 648, at paras. 41-43, R. v. Fermah, 2019 ONSC 3597.
[117] Unduly harsh conditions of pre-sentence custody are a relevant factor on sentencing. Reductions in sentence to account for these and other related considerations are often referred to as a “Duncan credit” after the decision in R. v. Duncan, 2016 ONCA 754.
[118] During the sentencing hearing, the offender provided documentation related to the custodial institution where he spent the past several years. The materials include a letter from the Ministry of Solicitor General Correctional Services from Niagara Regional Detention Centre, dated November 14, 2023. Some of the information makes references to six lockdown dates or double or triple bunking. According to Stephens, he had witnessed the death of two inmates that occurred since the completion of his guilty plea. He alleges that this has had an ongoing impact on his mental health.
[119] It is obvious that being incarcerated has its inherent challenges. Without intending to be flip, I am not entirely persuaded that this offender is subjected to anything more than what, unfortunately, occurs in a detention centre.
[120] Unlike the “Summers” credit, which is a deduction from what is determined to be the appropriate sentence, the “Duncan credit” is one of the factors that is taken into account in determining the appropriate sentence. A court may, but is not required to, identify a specific number of days or months as “Duncan credit”: R. v. Marshall, 2021 ONCA 344, at para. 53.[^4] This approach is intended to reflect the harsh jail conditions endured by the offender during the recent pandemic and other circumstances.
[121] I agree with the Crown that most of the so-called “COVID” or Duncan credit attributable to this offender has been exhausted by virtue of his prior guilty plea, which includes the period of time between the start of the pandemic in March 2020 to his sentencing date of November 23, 2022. Subsequent to November 2022, I take judicial notice that the conditions at the jail, while not ideal, do not give rise to the same concerns as during the height of the pandemic.
[122] With regards to the affidavit and evidence adduced from the offender, as a “Duncan” factor in the overall sentence, I am prepared to consider a nominal period in mitigation.
The Totality and Parity Principles Applied:
[123] Stephens plead guilty on November 23, 2022. His four-year global sentence was as follows: three years for possession of the revolver; one year for possession of the shotgun (consecutive); 18 months for possession of cocaine for the purpose of trafficking (concurrent); one year for transfer of the firearm to Kaitlin Miller (concurrent). It was agreed that as a result of Summers and Duncan, Stephens was in a time served position.
[124] Pursuant to section 718.2 of the Criminal Code sentences for similar sentences ought to be imposed on similar offenders who committed offences in similar circumstances.
[125] In this case, the related accused - Savalanpour- previously resolved his charges by way of guilty plea. Similar to Stephens, Savalanpour was found guilty of aggravated assault against the bystander victims by participating in the shooting event, but was not convicted of discharging a firearm.
[126] For his participation in the September 19, 2019 shooting event, Savalanpour was sentenced to 13.5 years' custody on the charges of aggravated assault.
[127] Unlike Stephens, Savalanpour has an extensive, prior criminal record, including offences of violence and firearm offences. Despite that, there were a number of mitigating factors. He was, himself, shot twice in the abdomen and was the target of 'Group 2's planned attack. Savalapour’s guilty plea was meaningful and preserved significant court time and resources. He further resolved his matters globally with other charges at the same time.
[128] As mentioned, another fundamental principle at play in this case is that of totality. This requires that I consider the total period of incarceration and ensure that it is not excessive. Here, Stephens has already served a four- year sentence in relation to his guilty plea for the firearms offences. The Crown argues that these are distinct occurrences, and that these very charges stem from activity after the fact. Yet, these charges were contained on the same, original multi-count indictment, which alleged a multitude of crimes against Stephens and other offenders. It is the prosecution who decided to join all these counts.
[129] I agree entirely with Ms. Vandebeek that the principle of totality is wholly applicable with regards to her client’s disposition to those other related firearms offences. Any sentence to be imposed must take this factor into consideration. As such, a two-year credit ought to be applied in order to meet the objectives of totality and proportionality to the overall sentence.
Conclusion:
[130] The seriousness of these offences cannot be understated. Stephens was a leader or, at least, a significant party to the brazen and callous shooting of innocent bystanders and Savalanpour in the City of St. Catharines in the early morning hours of a busy festival weekend. The attendant violence in the circumstances of this case warrants sharp denunciation and deterrence.
[131] The offender’s moral blameworthiness remains high, even in the context of his lived social context experience in regard to the two indicted offences.
[132] Notwithstanding the serious and notorious nature of this case, in my view, the Crown attorney’s suggested sentence of 15 years for both counts is excessive. It cannot be said that the offender was the shooter. He also has the benefit of numerous mitigating factors. With respect, I am not persuaded that the Crown’s proposed disposition is sustainable by the facts of this case and the jurisprudence.
[133] Nevertheless, for these specific offences and the circumstances of the offender, I adopt the Crown attorney’s range of sentence as established in the leading case of Bellissimo, and its progeny.
Disposition:
[134] I impose a s. 109 weapons prohibition order for life. The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code.
[135] Based on the prevailing jurisprudence, the brazen and callous nature of this crime, and relevant sentencing principles, as a starting point, a global sentence of 10½ years for aggravated assault would be entirely appropriate.
[136] However, when considering the various mitigating factors, including numerous letters of support, the offender’s prior pro-social conduct, no prior record, his very positive rehabilitative potential, along with the defence’s focused manner of conduct of this trial, the sentence to be imposed must be mitigated to reflect these considerations. Thus, with respect to count two – aggravated assault, the sentence is moderated to that of nine (9) years.
[137] As mentioned, Stephens was sentenced in November 2022 to four years for firearms-related offences he was facing on the original, multi-count indictment. The principles of totality and proportionality must be engaged to reflect the disposition to those related offences. Thus, the sentence is reduced further by two years. As a result, the sentence to be imposed is seven (7) years, and is to be reflected on the warrant of committal.
[138] I am persuaded that I ought to provide some nominal enhanced credit as a mitigating factor related to the offender’s time in custodial institutions awaiting disposition. In applying the Duncan considerations, the sentence is further mitigated by three months.
[139] The offender has remaining a total of 14 months of pre-sentence custody. With the usual Summers credit at 1.5:1, that is the equivalent of 21 months.
[140] Therefore, the net sentence is as follows: With respect to Count two - aggravated assault, s. 268(2), Jamar Stephens is sentenced to serve a term of imprisonment of five (5) years in a federal penitentiary. In terms of Count one - aggravated assault, s. 268(2), the sentence is five (5) years concurrent.
A.J. Goodman J.
Date: January 4, 2024
COURT FILE NO.: CR: 415/21
DATE: 2024-01-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
JAMAR STEPHENS
REASONS FOR SENTENCE
A. J. GOODMAN J.
Released: January 4, 2024
[^1]: I find that most, if not all, of the defence cases are distinguishable on their particular facts or the unique circumstances of the offender. This includes: R. v. Kane, 2019 ONSC 6910, R. v. Afrah, 2023 ONSC 6910, R. v. Baugh, 2021 ONSC 8408, R. v. Abdullahi, 2014 ONSC 272. As well, the case of R. v. Cada, 2013 ONCJ 91, is clearly out of any acceptable range for this offence.
[^2]: In Derby, at para. 92, Boswell J. raised a similar query with Ferdinand, albeit without deciding.
[^3]: I am advised that Project L8 Night was the second largest shooting in the history of the Niagara Region. The prosecution before me in this case, with six victims, is the largest.
[^4]: Where the quantum of “Duncan credit” is specified, the conceptual distinction explained in Marshall will not affect the ultimate sentence the offender will be required to serve. However, it will affect how the Warrant of Committal on Conviction is completed, as it requires the court to identify the term of imprisonment that would have been imposed before credit is granted pursuant to s. 719(3.1). As a result, “Duncan credit” is not specifically identified on the Warrant of Committal.