Court File and Parties

Court File No.: CR-21-10000081 Date: 2024-01-18 Ontario Superior Court of Justice

Between: His Majesty The King – and – Jamal Fogah-Pierre, Defendant

Counsel: John Flaherty, for the Crown Jason Yuen, for the Defendant

Heard: December 14, 2023

Before: G. Roberts, J.

Overview

[1] Following a brief and very focused trial, I found Jamal Fogah-Pierre guilty of firing five shots from a handgun at a fleeing man. Fortunately, nobody was hurt. But the potential for harm was enormous. There were people around. Some of the bullets lodged in cars and inside the living room of a house across the street from where Mr. Fogah-Pierre fired.

[2] The Crown seeks a sentence of 8 ½ years. Defence counsel seeks a sentence of 5 years, the mandatory minimum.

[3] I agree with the Crown that 8 ½ years is an appropriate sentence for the conduct in this case. However, I am satisfied that there are a number of exceptional circumstances at play that bring the sentence below the range that would normally be required for this conduct. In the very particular circumstances of this case, I am satisfied that the mandatory minimum sentence of 5 years is fit and appropriate.

Circumstances of the Offence

[4] In the early hours of December 18, 2017, Mr. Fogah-Pierre emerged from the emergency exit at the south-west corner of the apartment building at 1884 Davenport Road, walked west, pointing a handgun toward a man who had very recently tried to stab him, got on his knee to steady his aim, and fired five times in the direction of his recent attacker (the man in red pants) who was fleeing across Davenport Road in a south-west direction. Police found shell casings on the sidewalk in the area where Mr. Fogah-Pierre fired, and bullet holes in two cars parked across the street, plus a bullet inside the front driver’s side tire of one of them, and a bullet hole in the front window of 1897 Davenport Road, and a bullet lodged inside a wall divider in the front living room of that house.

[5] The shooting was captured on surveillance video. The sole issue at trial was identity. For reasons I explained, I was satisfied beyond a reasonable doubt that Mr. Fogah-Pierre was the shooter: R. v. Fogah-Pierre, 2023 ONSC 2032.

[6] The shooting did not come out of the blue. Minutes earlier the man in red pants, armed with a large knife, and together with another man, tried to stab Mr. Fogah-Pierre with a large knife. Fortunately, Mr. Fogah-Pierre managed to escape, eventually getting inside the apartment building at 1884 Davenport Road. The man in the red pants was continuing to lurk outside 1884 Davenport Road. I found in my reasons for judgment that the attack provided Mr. Fogah-Pierre with a motive to retaliate. I am satisfied beyond a reasonable doubt that Mr. Fogah-Pierre pointed his handgun at his former attacker, and fired the handgun at his former attacker.

[7] The handgun used in the shooting was found six months later, on June 16, 2018, hidden behind a wall pipe access panel at the back of the sink vanity of unit 724 of 1884 Davenport Road. The unit was occupied by an individual I found to be a friend of Mr. Fogah-Pierre.

[8] I acquitted Mr. Fogah-Pierre of additional charges of gun possession relating to the handgun found on June 16, 2018.

Rule Against Multiple Convictions

[9] Mr. Fogah-Pierre was charged with, and found guilty of, five separate offences in relation to firing the handgun on December 18, 2017, specifically:

• Unlawful possession of a restricted handgun, without being the holder of a licence permitting such possession, contrary to s.91(1) of the Criminal Code;
• Unlawful possession of a restricted handgun, while knowingly not being the holder of a licence permitting such possession, contrary to s.92(1) of the Criminal Code;
• Unlawful possession of a loaded restricted handgun, without being the holder of an authorization or licence permitting such possession, contrary to s.95(1) of the Criminal Code;
• Pointing a handgun at another person, without lawful excuse, contrary to s.87(1) of the Criminal Code;
• Intentionally discharging a handgun, while being reckless to the life or safety of another person, contrary to s.244.2(1)(b) of the Criminal Code;

[10] The rule against multiple convictions (the "Kineapple" principle) prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same, i.e. there is both a factual and legal nexus. In such cases the accused should only be convicted of the most serious offence, and the other offences should be conditionally stayed: R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.).

[11] Beginning with the charges relating to possession of the handgun, counsel jointly submit that the s.91 and s.92 offences are subsumed in the s.95 offence. I agree. As a result, counts 1 and 2, relating to the s.91 and s.92 offences, will be conditionally stayed pursuant to the principle in Kineapple.

[12] Counsel do not agree about how the principle in Kineapple should apply to the charges relating to the use of the handgun. Defence counsel argues that whether or not the principle applies depends on the facts I find, specifically whether the conduct amounting to pointing the firearm is subsumed in the conduct amounting to the reckless discharge of the firearm. The Crown argues that, on the facts of this case, the pointing charge is separate from the charge of reckless discharge.

[13] I am satisfied that, on the particular facts of this case, the pointing and the discharge are factually distinct. Mr. Fogah-Pierre initially pointed his handgun at his recent attacker, causing the recent attacker to flee, took a number of steps toward the fleeing man, while pointing the handgun, past two women on the sidewalk, one of whom cowered away from him. The Crown acknowledges that Mr. Fogah-Pierre did not point the gun at the women he walked past, rather relies on their reaction as a circumstance suggesting that the pointing took place before, and distinct from, the reckless discharge. After taking these steps while pointing a handgun, Mr. Fogah-Pierre got down on one knee, steadied his aim, and fired toward his fleeing recent attacker. Given my finding that the facts underlying these charges are not the same, the principle in Kineapple does not apply. However, the two offences are part of the same transaction, or criminal endeavour, and constitute invasions of very similar interests, thus the sentence on the pointing charge should be concurrent to the sentence for reckless discharge: R. v. Bertrand-Marchand, 2023 SCC 26 at para.96-98.

Circumstances of the Offender

[14] The trial was essentially an agreed statement of facts supplemented by surveillance video. The sole issue was whether the Crown proved beyond a reasonable doubt that Mr. Fogah-Pierre was the shooter. Based on my conclusion that Mr. Fogah-Pierre was the shooter, all I know from the trial is that he has friends, a warm smile, he was set upon prior to the shooting – ambushed by two men outside his home and a serious attempt made to stab him with a large knife (perhaps kill him), his attacker did not leave the area after failing to stab Mr. Fogah-Pierre, and Mr. Fogah-Pierre later attempted to retaliate by coming back outside with a gun, which he fired at his fleeing attacker.

[15] Fortunately, I now have the benefit of a detailed Pre-Sentence Report (PSR). Mr. Fogah-Pierre was 19 years old at the time of the shooting (December 18, 2017), about to turn 20 (he was born January 26, 1998). He is currently 25 years old, almost 26. He has no criminal record. He is the youngest of five children, from three different fathers. He grew up without a father or a father figure. His mother and grandmother were on their own financially, and did general labour in a food processing plant. Mr. Fogah-Pierre had his basic needs met, and felt loved and supported as a child.

[16] Mr. Fogah-Pierre has lived in the area of St.Clair and Weston Road, Pelham Park, for 20 years; effectively his entire life. Growing up, he was aware of “a lot of criminal activity going on”. He saw a shooting when he was 13, and knew, or grew up with, people who died due to gun violence. He was stopped by police and asked for his identification simply because he happened to be close to the scene of a robbery. Mr. Fogah-Pierre fell in with the wrong crowd in high school and lost interest in school. He did not graduate from high school.

[17] When the PSR writer asked Mr. Fogah-Pierre why he had a firearm, he frankly explained “at the time, there were a lot of shootings in the community, so I had it for my own protection”. He continued, however, that he is “capable of making better choices”, including “staying inside” to avoid the incident.

[18] Mr. Fogah-Pierre claims he does not have issues with substance abuse, or anger management. He described himself as “loyal, honest, smart and trust-worthy”. His brother supported this characterization, though added that his loyalty had been a weakness in the past and gotten him into trouble. Mr. Fogah-Pierre did not feel he has poor judgment or difficulty solving problems; he understands “what is right and what is wrong”.

[19] Mr. Fogah-Pierre was incarcerated after he was arrested in relation to the shooting on July 22, 2019. He remained in custody until he was released on bail on March 31, 2020. It is common ground that a significant portion of the 254 days that Mr. Fogah-Pierre spent in custody awaiting trial was under lock down. Mr. Fogah-Pierre provided an affidavit tracking the lockdowns. Defence counsel also filed a lockdown summary from the Toronto South Detention Centre (TSDC). The vast majority of these lockdowns were partial, but the exact duration of the partial lockdown is only noted sometimes. The TSDC tallies the lock-downs, both full and partial, at 146; well over half the time Mr. Fogah-Pierre spent in custody awaiting trial. Counsel jointly submit that 127 days additional “Duncan credit” should be accorded, over and above the statutory “Summers credit”, to recognize the harsh conditions at the TSDC.

[20] Notwithstanding the onerous conditions at the TSDC, Mr. Fogah-Pierre was able to complete a number of courses while in custody:

• Overdose Prevention & Response (August 8, 2019);
• African Canadian Excellence Pilot Project (September 11, 2019);
• Use of Leisure Time (September 18, 2019);
• Recognizing Healthy Relationships Educational Session (September 23, 2019);
• Change Is A Choice: Connections Rehabilitative Group (December 12, 2019);
• Anger Management Educational Session (January 15, 2020);
• Overdose Prevention & Response (February 6, 2020);
• Problem Solving Educational Session (February 13, 2020).

[21] Mr. Fogah-Pierre was released on a strict house arrest bail on March 31, 2020. He was 21 years old at the time. The conditions prohibited him from being outside the home unless with one of his sureties – his 75 year old grandmother, his 77 year old great aunt, or his older sister (by two years). He has spent the past approximately three years, and nine and a half months living with these sureties, sharing a bedroom with his sister. His grandmother and great aunt have supported him with their old age pensions. He has not been able to contribute to household expenses. He sought a bail variation in March of 2021, so he could work, but the Crown declined to consent, and he did not pursue the request with an application.

[22] The house arrest has been difficult, but there is no suggestion that Mr. Fogah-Pierre has failed to comply with its strict terms. He has not been charged with any offence or breach of his conditions of bail. He completed three certificates through online Coursera programs while on house arrest:

• Measuring Stock Liquidity;
• Change Leadership: Developing Strategic Gap Analysis in Miro;
• Create a Lead Generation Messenger Chatbot using Chatfuel.

[23] Mr. Fogah-Pierre has been studying the General Education Development (GED) booklet while on house arrest. He notes in his affidavit that he is ready to take the tests, and plans to do so when he steps into custody. It has been difficult for him to write the tests while on bail because he must be in the direct presence of one of his sureties.

[24] Mr. Fogah-Pierre told the PSR writer that he eventually wants to work in a trade. He has a sparodic and inconsistent work history thus far, having done some work as a roofer, and some work as a cook. As noted, he has been unable to work while on bail. The PSR writer noted that he demonstrated insight into his offending behaviour by attempting to further his education, work and distance himself from environments that increase the likelihood of him participating in anti-social activity”. The PSR writer continued:

Having been brought up in the Pelham Park area of Downtown West Toronto the subject appears to have benefited from positive familial support. Within the home the subject was not exposed to any form of violence, abuse, or criminal activity however it appears the neighborhood in which the subject spent all his life has impacted him. Family members including his mother and brother questioned his choice of peers and this may have led to him leaving school early as well as being exposed to some antisocial behaviours consequently, impacting his outlook and the lifestyle he was living. Whilst the subject himself felt he has been treated fairly while in the school system he does recall the police targeting him on at least one occasion due to his colour. From conversations with the subject he does not appear to struggle with any mental health related issues although it is evident that the subject may have struggled to deal with some of the emotional trauma specifically relating to the absence of a father figure in his life and given the observations from his mother it may be beneficial that some of his behaviors/thoughts be assessed professionally so as the subject can understand both the impact this has had on him as well as understanding the potential impact his behaviour can have on others. To his credit during the interview, he expressed a willingness to attend programming/ counselling and has a particular interest in exploring career goals. Likewise, there is some evidence that the subject has tried to improve his education during this period on bail and does appear to have complied with his bail conditions following his release in 2020.

Impact of the Offences on the Community

[25] Courts at every level of our province have repeatedly recognized the scourge of handguns, especially in cities. Outside law enforcement, handguns have only one purpose: to hurt (including kill) and terrorize other people. The offences in this case adds fuel to the profound concern the people of Toronto have about handguns. Unlawful handguns, particularly when used, kill our loved ones, including our children, and make us feel unsafe.

Range of Sentence for Reckless Discharge

[26] All the charges Mr. Fogah-Pierre was found guilty of were serious, but the most serious was intentionally firing the unlawfully possessed restricted handgun, knowing or being reckless as to whether another person was present in the place where the gun was fired, contrary to s.244.2 of the Criminal Code. Where a restricted or prohibited firearm is used in the commission of the offence, the offence carries a mandatory minimum sentence of five years for a first offence, and seven years for any subsequent offence. While parliament recently removed a mandatory minimum sentence of four years in all other cases, they left untouched the mandatory minimums where a restricted or prohibited firearm was used, as was the case here. The maximum sentence is fourteen years.

[27] The Court of Appeal has repeatedly emphasized that general deterrence and denunciation are of paramount importance when sentencing for serious firearms offences, affirming a range of seven to eleven years for “serious gun related offences”: R. v. Bellissimo, 2009 ONCA 49 at para.3. Bellissimo is a short endorsement and the exact offence is unclear, although it is apparent that it involved intentionally firing a gun in a restaurant, causing two people to be injured, one seriously, and a third could have been killed.

[28] In R. v. Jama, 2021 ONSC 4847, Justice Schreck found that the Bellissimo range could only properly be applied in a case of an intentional shooting where someone is injured or there was an attempt to injure someone. Justice Schreck concluded that a lesser range of five to seven years is applicable to reckless discharge of a firearm. Jama was the driver of a car which stopped behind another car, occupied by two men, and Jama’s passenger fired a handgun three times at the target car. There was no evidence that anyone was hurt, or the target car damaged.

[29] In R. v. Abderezak, 2022 ONSC 6737, Justice Fuerst acknowledged the range identified by Schreck J. “as generally applicable for the offence of reckless discharge”, but noted that seven years is not the ceiling; aggravating factors may move the top end of the range higher. Abderezak involved targeting a lawyer involved in civil litigation, robbing and threatening an associate at gun point outside the office, followed a week later by firing seven rounds from a handgun into the front door and window area of the office at 5:06 pm on a work day. Employees were inside the office, including at the reception desk facing the front door. There were also cars parked out front, people around, including inside neighbouring businesses. Justice Fuerst imposed a global sentence of 12 years following a guilty plea, with 7 years attributable to reckless discharge of a firearm.

[30] Once the range of sentence is determined for a particular offence, the sentencing court must impose a fit and proportionate sentence, bearing in mind the range of sentence, the gravity of the offence and the degree of responsibility of the offender, as reflected by the all the circumstances, including relevant principles and objectives of sentencing, and the aggravating and mitigating circumstances: s.718.1 of the Criminal Code; R. v. Friesen, 2020 SCC 9 at paras. 34, 37-38, 96-97, and 108-114; R. v. M.V., 2023 ONCA 724 at paras. 44-52.

Principles of Sentencing

[31] The fundamental purpose and principles of sentencing are now largely codified in s.718 of the Criminal Code. They are lengthy and detailed and mostly very well-established. I will not recite them here but rather apply the most relevant below.

[32] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence and offender. In all instances, as s.718.1 expressly notes, the "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

What is a Fit Sentence in All the Circumstances?

[33] This was a planned and deliberate offence undertaken to retaliate against a recent attack. Mr. Fogah-Pierre escaped inside 1884 Davenport Road, changed his jacket, and armed himself with a loaded restricted handgun. Just over ten minutes after he was attacked, Mr. Fogah-Pierre emerged from 1884 Davenport Road, with another man, and immediately targeted his attacker, walking towards him while pointing his handgun, then getting on one knee to steady his aim as he fired at his fleeing attacker. While the antecedent attack was terrifying, and the attacker was continuing to lurk outside the building Mr. Fogah-Pierre was inside, we do not live in the wild west. We live in a multi-national city with a diverse, professional police force. We do not and cannot tolerate vigilante justice. Mr. Fogah-Pierre should have called the police.

[34] Mr. Fogah-Pierre’s use of a restricted handgun is not aggravating as it is an element of the offence and what engages the mandatory minimum sentence which operates in this case. However, use of the firearm, in particular a restricted handgun, means that general deterrence and denunciation are paramount in the sentencing process, and must be emphasized: R. v. Nur, 2015 SCC 15 at para. 82; R. v. Dufour, 2015 ONCA 426 at para. 8; R. v. Brown, 2010 ONCA 745 at para. 233. This is particularly true in Toronto, where handguns are a major problem for our community.

[35] I recognize that Mr. Fogah-Pierre was only charged with, and found guilty of, reckless discharge of a firearm, nonetheless I believe that the higher Bellissimo range is applicable in the instant case. Mr. Fogah-Pierre’s attacker fled when Mr. Fogah-Pierre pointed a handgun at him. Mr. Fogah-Pierre continued toward his attacker, then got on one knee to take aim before repeatedly firing. As I noted above, I am satisfied beyond a reasonable doubt that Mr. Fogah-Pierre was firing at his attacker. Fortunately no one was hit by a bullet. But they certainly could have been. Mr. Fogah-Pierre was on a public street in the middle of Toronto when he repeatedly fired at his fleeing attacker. Other people, innocent people, were in the vicinity. Mr. Fogah-Pierre walked by two women on the sidewalk as he pointed his handgun at his fleeing attacker. Cars and public buses were driving on the street. People were sleeping in their homes across the street, possibly including the home where one of the bullets entered. Mr. Fogah-Pierre’s reckless discharge of a firearm in this case was an astonishingly brazen act of enormous potential violence. There is no question in my mind that it amounts to a “serious gun-related offence”.

[36] Were the circumstances of the offence, and the central importance of general deterrence and denunciation the only considerations, and not simply the most important considerations, I would agree entirely with the Crown that 8 ½ years is a fit and appropriate sentence. However, there are a number of very significant mitigating circumstances that I believe make this case exceptional and bring it below the range.

[37] While Mr. Fogah-Pierre did not plead guilty, he conducted an extremely efficient trial. Mr. Fogah-Pierre admitted the Crown’s case and focused on the central issue of whether or not the Crown could prove beyond a reasonable doubt that he was the shooter. This is not the same as a guilty plea, but it is a well-recognized mitigating circumstance: R. v. Mangot, 2012 ONCA 415. In this era of particularly limited court time as we work through the COVID-19 backlog, I believe it is a circumstance that deserves particular emphasis and credit.

[38] Mr. Fogah-Pierre is a youthful first offender. He was 19 years old at the time of the offence. The principle of restraint, long part of our common law (see e.g., R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 96), and codified in part in s.718.2(e) of the Criminal Code has particular application in this case. Within the confines of the operation of the mandatory minimum sentence, and the need to emphasize general deterrence and denunciation, the sentence should be as short as possible.

[39] Mr. Fogah-Pierre grew up loved but poor, without a father figure, in a tough neighbourhood, where he was exposed to criminal activity from a young age. He is a member of an historically disadvantaged group that has been subject to systemic racial bias. Legal Aid approved an impact of race and culture assessment (IRCA) in this case, but it was taking too long to prepare, and Mr. Fogah-Pierre asked to press on with the sentencing without it [1]. Notwithstanding that I do not have a formal IRCA, I believe I have sufficient information to take Mr. Fogah-Pierre’s background into account as a powerful mitigating circumstance in this case. The information before me includes judicial notice of anti-Black racism in Toronto, supported by the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, appended to the trial decision in R. v. Morris, 2018 ONSC 5186; a detailed PSR about Mr. Fogah-Pierre’s background; and thoughtful submissions by defence counsel. This information satisfies me that there is a connection between the offences and Mr. Fogah-Pierre’s background which mitigates Mr. Fogah-Pierre’s personal responsibility, and enhances the importance of restraint and rehabilitation: R. v. Morris, 2021 ONCA 680 at paras. 97, 104. In other words, I believe Mr. Fogah-Pierre’s background “played a role in the commission of the offence”: R. v. Hamilton (2004), 186 C.C.C. (3d) 129 at paras. 133-142. Notwithstanding the inherent seriousness of the offence, this background mitigates his personal responsibility and enhances the importance of the principles of rehabilitation and restraint.

[40] The passage of time in this case means that Mr. Fogah-Pierre is no longer the person he was at the time of this offence. There is no suggestion that this delay is the fault of the Crown or the court, but the reality I am faced with is crafting a fit sentence for young man for something he did approximately six years ago. This period represents almost a quarter of his entire life. During the approximately three years and nine and a half months he has been on a house arrest bail, living in difficult conditions, he has stayed out of trouble and begun to take tangible steps toward rehabilitation in the form of upgrading his education. He began this process while in custody. In the particular context of Mr. Fogah-Pierre’s positive steps toward rehabilitation while awaiting trial, I believe the inordinate delay in this case provides significant mitigation and reinforces the importance of rehabilitation and the principle of restraint.

[41] In R. v. Downes (2006), 79 O.R. (3d) 321, and R. v. Ijam, 2007 ONCA 597, the Ontario Court of Appeal held that time spent on stringent conditions of pre-trial bail is a relevant mitigating circumstance, and should be considered by the sentencing judge in determining the appropriate sentence. (Downes said “must”, but a majority of the five-member panel in Ijam softened this to “should”, explaining that, while “bail is not jail”, it may be punitive and akin to custody, depending on the circumstances.) The criteria to be considered in assessing the weight to be given to any mitigation include 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, at para. 20; R. v. Joseph, 2020 ONCA 733 at para. 108.

[42] In this case, I believe that the 1388 days Mr. Fogah-Pierre has spent on house arrest must be given significant weight as a mitigating factor. The conditions were onerous, especially for a young man just entering adult-hood who normally would be beginning to experience independence from family at this phase of life. Instead, Mr. Fogah-Pierre was cooped up with his grandmother and great aunt, sharing a bedroom with his sister. He could not work and contribute to the household. He was and is very lucky to have his family, but these were very onerous conditions for a young person in their early 20s.

[43] Defence counsel asks that I give Mr. Fogah-Pierre credit for a third of the 1388 days he has been on house arrest bail, which amounts to 463 days. It is possible to give such “credit” in so far as the sentence exceeds the mandatory minimum. But the majority in R. v. Panday, 2007 ONCA 598 concluded that, unlike pre-sentence custody, pre-sentence release, even on harsh terms, cannot be deducted from a mandatory minimum sentence. The Supreme Court of Canada recently affirmed this reasoning in R. v. Basque, 2023 SCC 18 at para. 61. In the circumstances of this case, I decline to attach a number to the onerous conditions of pre-trial custody but instead give it substantial weight as a mitigating circumstance in the sentencing process. It is a significant part of what makes this case exceptional and brings it below the required range.

[44] When I consider all the circumstances of this case, including the seriousness of the offence, and the exceptional mitigating circumstances at play, I am satisfied that the mandatory minimum sentence of five years is fit and appropriate.

[45] Both counsel agree that I must deduct the time Mr. Fogah-Pierre spent in pre-trial custody from the sentence, including from the five-year mandatory minimum sentence, at the statutory rate of 1.5 to 1. Mr. Fogah-Pierre spent 254 days in pre-trial custody. It is common ground that this should be grossed up to 381 days to reflect this “Summers” credit.

[46] Both counsel agree that an additional credit of 127 days is appropriate to reflect the particularly harsh conditions of pre-sentence custody, as supported by Mr. Fogah-Pierre’s personal lockdown notes and the Lockdown Summary from the TSDC. The Court of Appeal has repeatedly directed that harsh conditions of pre-trial custody should be considered as a collateral consequence having a mitigating effect on sentence, and not a deduction from the appropriate sentence like a Summers credit: R. v. Marshall, 2021 ONCA 344 per Doherty JA; R. v. Menezes, 2023 ONCA 838 per the Associate Chief. However, the Court has also held that it is not necessarily an error to affix a number to this mitigating circumstance. Both counsel ask me to do that here, and jointly propose 127 days as the appropriate number. I am content to do as counsel ask as I do not believe it will cause the Duncan credit to take on “unwarranted significance in fixing the ultimate sentence” and result in an unfit, inappropriate sentence. Moreover, unlike a Downes credit, it reflects “real” jail, and I accept the joint submission that this credit can be deducted from a mandatory minimum sentence: R. v. Vassel, 2022 ONSC 3669.

[47] I recognize that the ultimate sentence is below the required range, but I believe this is necessary to craft a fit and appropriate sentence in the exceptional circumstances of this case.

[48] The sentences will be as follows:

• Five years for reckless discharge of the handgun;
• Three years concurrent for pointing the handgun;
• Three years concurrent for possession of a loaded prohibited handgun.

[49] The Summers credit of 381 days (254 real days grossed up by 50%), plus the Marshall/Duncan credit of 127 days (totaling 508 days), will be deducted from the five-year sentence (1825 days) leaving an effective sentence of 1,317 days or 3 years and 7 months and 09 days. The credit will be applied to the charge of reckless discharge of a firearm.

[50] A section 109 order is mandatory. It will be for 10 years.

[51] Reckless discharge of a firearm is a primary designated offence under s. 487.051; a DNA order is mandatory.

[52] The victim surcharge in effect at the time of the offence was found unconstitutional in R. v. Boudreault, 2018 SCC 58, thus there will be no victim surcharge in this case.

G. ROBERTS, J. Released: January 18, 2024

[1] In my experience, IRCA reports are taking a year or more to prepare. Sentencing should generally take place close to the finding of guilt; five months is the constitutional limit: R. v. Charley, 2019 ONCA 726. As the circumstances of this case illustrate, a delay in sentencing may be particularly problematic where a trial has also been delayed.