Court File and Parties

COURT FILE NO.: CR-23-70000304 DATE: 2024-07-26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – AZARA ROBERTSON

Counsel: Victoria Di Iorio, for the Crown Myles Anevich, for Azara Robertson

HEARD: July 24, 2024

Reasons for Sentence

HIMEL J.

[1] Azara Robertson entered pleas of guilty to the offences of reckless discharge of a prohibited firearm contrary to s. 244.2(1)(a) of the Criminal Code, R.S.C. 1985, Chap. C-46, as amended, and possession of a loaded prohibited firearm or restricted firearm without being the holder of a licence or registration certificate contrary to s. 95(1) of the Code. She had elected to be tried by a judge sitting alone.

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

[3] Counsel made submissions to the court on sentence. The following are my reasons for sentence.

Factual Background

[4] The Crown and defence filed an Agreed Statement of Facts in accordance with s. 655 of the Code. On June 19, 2022 at approximately 3:15 a.m., Peel Regional Police Service responded to a call for service in relation to gunshots being fired outside “& Company Resto Bar” located at 295 Enfield Place in the City of Mississauga. Police located multiple shell casings at the scene. Following a video canvass, investigators found the shooting had been captured on a security camera.

[5] The video footage captured two groups leaving the bar where an event scheduled for Pride month was being held. The two groups became involved in a physical altercation. During the altercation, Fatuma Mohammed handed a firearm to Azara Robertson. Ms. Robertson then proceeded to point the firearm in the air and fire several rounds off causing the altercation to cease and the crowd to disperse. Ms. Mohammed and Ms. Robertson fled the scene at a high rate of speed in a black Audi sedan. They were identified through the police cross-referencing video footage of the shooting with the club photographs. Twelve Blazer brand spent bullet casings were recovered from the scene.

[6] On July 24, 2022, at approximately 7:47 a.m., the Toronto Police Service received a call for service regarding a shooting at Parliament Street and Dundas Street East in the City of Toronto. A caller advised that a white SUV with no front licence plate shot a gun and sped away on Parliament Street and turned east on Dundas Street. Another witness overheard an occupant of the vehicle say, “Drop me off at my house. I live on Tubman.”

[7] Five minutes prior to the shooting, Constable McGuire of the Toronto Police Service had questioned a licence plate of a Volkswagen with Ontario licence plate CVLZ638 on the northeast corner of Parliament Street and Dundas Street as he had noticed the vehicle because it was parked illegally on the street. The vehicle was occupied by three females.

[8] At approximately 8:04 a.m., officers located the suspect vehicle, a white Volkswagen Tiguaan SUV bearing an Ontario licence plate CVLZ638 occupied by three females driving in the area on Dundas Street East between River Street and Tubman Avenue.

[9] The three female occupants were taken into custody and advised of their right to counsel and cautioned. Constable Parker asked one of the occupants, Azara Robertson, to step out of the front passenger’s seat of the vehicle. Constable Parker handcuffed her and performed a pat down search. A 9 mm Heckler and Koch pistol was located in Ms. Robertson’s tights. The gun was loaded with 9 rounds of ammunition with one round in the chamber. The gun was tested and determined to be a “restricted firearm” as defined in s. 84 of the Criminal Code of Canada.

[10] After viewing video footage in the area, police were able to determine that the sound of the gunshot was heard when the white SUV was on Parliament Street near Shuter Street. Police were able to locate a brass spent shell casing on the east side of the road just north of Shuter Street. An additional identical shell casing was later found during the execution of the search warrant of the vehicle. It is unclear which of the occupants was in possession of the firearm at the time of the discharge. The spent Blazer shell casing found at the scene on June 19, 2022 was the same brand and ammunition as the shell casings located at the scene on July 24, 2022 and found in Ms. Robertson’s possession.

Evidence Led at the Sentencing Hearing

[11] Crown counsel filed a copy of the judicial release order made on August 16, 2022, in which Azara Robertson was ordered released with Wendy Elizabeth Weise as a named surety in the amount of $5,000, Cerise Webb named as a surety in the amount of $5,000 and Timothy Gordon Lourie named as a surety in the amount of $5,000. The terms were that she was to reside with one of them, participate in any mental health counselling as directed by her sureties, and be under house arrest with exceptions for medical emergencies, when she was in the presence of one of her sureties or while at appointments for mental health counselling. She was not to contact the co-accused, not to possess any weapons and be subject to electronic monitoring. On February 1, 2023, with the consent of the Crown, the bail was varied to add Brodie Webb as a surety in the amount of $1,500.

[12] Defence counsel, Mr. Anevich, submitted an affidavit of Azara Robertson in which she outlined her background, her time in custody and the circumstances while on judicial interim release. Attached to the affidavit are lockdown records from the jail. Also submitted were letters from family and a friend.

[13] Ms. Robertson spoke in court expressing her remorse, that she makes no excuses and takes full responsibility for her actions. She has taken steps to better herself and she says this has been a profound wake-up call for her. She is eager to make meaningful changes in her life.

Positions of the Parties on Sentence

[14] The Crown and defence join in their submission to the court that an appropriate sentence in this case is one of 5 years for the s. 244.2(1)(a) discharge firearm offence and 3 years for the s. 95(1) offence served on a concurrent basis. Crown counsel, Ms. Di Iorio, highlights to the court the danger of gun violence and that a sentence must achieve denunciation and deterrence. She references R. v. Danvers, 2005 O.J. No. 3532 at para. 78 and that Parliament has recognized the seriousness of gun violence by enacting a mandatory minimum sentence of five years for the s. 244.2(1)(a) offence. Counsel points to the decisions of R. v. Dhaliwal, 2019 ONCA 398, where the Ontario Court of Appeal allowed a sentence appeal and imposed a global sentence of 7 years for the firing of a single bullet into a hallway ceiling and for verbally threatening bodily harm. In Dhaliwal, the court cited R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), for the proposition that the court established a 7-to-11-year range for “serious gun related offences” and noted that there is a minimum sentence of 5 years.

[15] In the case of R. v. Ferguson-Cadore, 2022 ONCA 829, the Court of Appeal upheld a sentence of 5 years and 6 months less credit for pre-sentence custody for discharge firearm where the appellant had “fired a gun twice in the presence of a group of people provoked only by jealousy.” The presence of other individuals in the area was a serious aggravating factor. The court deferred to the trial judge who was of the view that an exemplary sentence was required to denounce the appellant’s conduct: at para. 15.

[16] Ms. Di Iorio points to the aggravating factors that Ms. Robertson was in possession of firearm on two separate occasions. She was 21 years old at the time. She discharged a firearm over a large group and the fact that no one was injured is pure luck. Over a month later, she was in possession of a firearm again.

[17] The Crown agrees that Ms. Robertson is now showing remorse for her actions. The mitigating factors are that she has no criminal record, she is a young offender, and she has promise of rehabilitation. Further, the support letters filed indicate a strong support system around her.

[18] Crown counsel submits that Ms. Robertson should receive credit for pre-sentence custody for the 25 days she was detained following her arrest. She contracted COVID-19 while at Vanier Institution and was isolated. There were partial lockdowns when she was detained. Crown counsel submits that credit of 2:1 for the 25 days is appropriate for a total of 50 days for pre-sentence custody. As for credit in accordance with R. v. Downes, [2006] O.J. No. 555 (C.A.). Ms. Di Iorio submits that the time spent on restrictive bail should be credited at 0.25:1 for a total of 710 days. The sentence of 5 years equals 1,865 days less credit of 50 days for pre-sentence custody and days for Downes credit for a total of 1,637 days remaining to be served. Crown counsel asks the court to impose an order requiring that a DNA sample be taken as this is a primary designated offence and that there be a s. 109 order for 10 years.

[19] Defence counsel, Mr. Anevich, joins in the submission to the court that an appropriate sentence is one of 5 years for the discharge firearm and 3 years served concurrently on the possession of the loaded weapon. He joins with the Crown on the credit for time spent in custody in accordance with R. v. Duncan, 2016 ONCA 754 and for time spent on restrictive bail in accordance with R. v. Downes. He also refers to the case of R. v. Schlaepfer, 2022 ONCA 566 where the Ontario Court of Appeal noted that the focus of the Downes credit inquiry is the impact of the conditions on the appellant: see R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-8.” The court cited Joseph at para. 114 as follows: “The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. Focus should therefore be on the effect of the conditions.” Mr. Anevich submits that in the case of Ms. Robertson, she could not leave the house and could not work and thus, should be credited with 0.25 for each day on house arrest. He points to her support network and that when she is released from custody, her family will be there for her. She has pleaded guilty and demonstrated remorse.

The Law

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

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

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

[22] The offence of possession of a prohibited firearm pursuant to s. 95(1) calls for sentence which also emphasizes denunciation and deterrence and protection of the public. This is particularly where the firearm offence involves unlawful possession of a loaded gun in a public place: see R. v. Morris, 2021 ONCA 680 at para. 71.

[23] Section 718.1 of the Code references the principle of proportionality, that is, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An important aspect of that is the principle of totality in s. 718.2(c) which is to ensure that the “cumulative effect is not to impose a crushing sentence.: see R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42. The court is to consider the totality principle and whether the cumulative impact is appropriate, particularly with a youthful offender.

Decision

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

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

[26] I now consider the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Ms. Robertson’s background.

[27] Ms. Robertson is 23 years old and was born on November 3, 2000. She is a Canadian citizen. She lives at 2179 Heidi Avenue in Burlington, Ontario with her aunt, Cerise Webb, and her uncle, Brodie Webb, and her two cousins. Her aunt and uncle are her sureties. She has been residing there since she was released on bail on August 17, 2022. She also lived there when she ran from her parents’ home when she was 17 years old.

[28] Ms. Robertson’s aunt wrote a lengthy letter that was filed with the court outlining Ms. Robertson’s background including the trauma she endured with an alcoholic and abusive father. Ms. Robertson’s uncle also described that Ms. Robertson had a difficult life of physical, psychological and emotional abuse and finally lived with him and his wife when she was 17 years old. They both described that Ms. Robertson was a constant support to her grandmother while she was dying of cancer. Following her death, and during the pandemic, Ms. Robertson moved back to Toronto and became involved in the offences. Wendy Weise, Ms. Robertson’s great aunt and godmother and Timothy Lourie, Ms. Robertson’s great uncle, also wrote letters of support and they described how Ms. Robertson has taken responsibility for her actions and has learned from them. Finally, Aliyah La Brier has been together with Ms. Robertson since August 2023 and she also wrote that Ms. Robertson has learned from her mistakes and has changed for the better.

[29] In the affidavit of Ms. Robertson, she acknowledged that she made a terrible mistake and wants to take responsibility for her actions. She described that she was detained from July 24, 2022, until August 17, 2022, at Vanier Centre for Women. She was placed in an isolation wing for ten days because her cellmate was diagnosed with COVID-19 and her use of the shower, telephone access and time on the range were restricted. After she was released from the isolation unit, she became ill with a stomach virus for 2 to 3 days. Programming was cancelled between August 4 and 13, 2022. The records indicate 154 hours of lockdown time.

[30] Ms. Robertson was released from detention on August 17, 2022, on a strict bail that included house arrest. The terms required that she live with her aunt and uncle who are her sureties and be subject to electronic monitoring. She could not leave the house without her surety and so she could not attend work or school or socialize. Although requested, the Crown opposed a variation of her release conditions.

[31] Despite the conditions of bail, Ms. Robertson attended virtual therapy sessions regarding her previous lifestyle and substance abuse issues. She believes she had an alcohol problem at the time of the offences. She has taken some virtual classes on conflict resolution, basic English literacy and stress management.

[32] I am not advised of any breaches for the period of time that she has been on house arrest which is almost two years.

[33] I now turn to the circumstances of the offences. I have outlined the offences above and will not repeat them in detail. However, I note that the offences involved the use of a loaded restricted or prohibited gun which Ms. Robertson discharged in a reckless manner outside a club in the early morning hours with a crowd around her. The circumstances were extremely dangerous given the number of people in the vicinity. The possession of a loaded firearm in downtown Toronto was also extremely serious. For these offences, deterrence and denunciation are paramount objectives.

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

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

[36] An aggravating factor in this case is that Ms. Robertson had possession of the gun in a public place in Toronto. That she discharged a firearm in a crowd of people in Mississauga in a reckless manner where she could have injured or killed others is also an aggravating factor.

[37] In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offences and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for these offences, but that rehabilitation of the offender is also a key objective which ultimately protects society. I accept that Ms. Robertson has rehabilitative potential especially given that she has support in the community and a strong desire to change her ways. She has completed courses and wishes to secure employment upon her release from custody. Her experience in jail as well as under house arrest has given her insight and a desire to change her behaviour.

[38] Further, this is a joint submission of counsel. Joint submissions play a vital role in contributing to the administration of justice and as Justice Moldaver wrote at para. 41 in R. v. Anthony Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, “Without them, our justice system would be brought to its knees and eventually collapse under its own weight.” In my view, this joint submission is made by experienced counsel who have arrived at a resolution which is fair and consistent with the public interest.

[39] Sentencing is a fact-driven process where the court must consider the unique circumstances of the case. For the reasons outlined above, I impose the following sentence: for the reckless discharge of firearm, the sentence is 5 years’ imprisonment. For the offence of possession of a restricted firearm without being the holder of a licence contrary to s. 95(1), the sentence is 3 years served concurrently to the 5-year sentence. The global sentence is 5 years of imprisonment.

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

Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[41] Ms. Robertson submitted an affidavit which outlined conditions when she was incarcerated for the 25 days at Vanier Centre for Women and conditions when she was released on a strict bail.

[42] I consider that Ms. Robertson spent pre-trial custody in difficult conditions caused because of staffing shortages and precautions taken during the COVID-19 pandemic, the lack of opportunity for showers and lack of telephone calls. She has described the negative impact of the conditions on her physical and mental health.

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

[44] I agree with Crown counsel and defence counsel that there should be some credit to reflect the harsh pre-sentence incarceration conditions and the resulting impact on her and I credit her with 2:1 for the 25 days which is 50 days of credit for pre-sentence custody in accordance with Duncan and Marshall.

[45] Turning to the issue of Downes credit, in the case of R. v. Joseph, 2020 ONCA 733, the Ontario Court of Appeal discussed the proper application of Downes credit at para. 108 and held that “Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody: Downes, at para. 29.” The court set out criteria to consider in assessing the weight of the mitigation to be given: “The amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546 (C.A.), at para. 20.”

[46] The mitigating effect on the sentence falls within the discretion of the trial judge: see Downes at para. 37. That there is no precise calculation for Downes credit was recently affirmed in R. v. Campbell, 2023 ONCA 483; at para. 25, citing R. v. Bakal, 2023 ONCA 177, at para. 62 and R. v. C.C., 2021 ONCA 600 at paras. 4-5. While some courts choose to grant Downes credit by setting off an amount against the sentence to be imposed, others view the punitive impact of bail conditions in the overall determination of a fit sentence: see R. v. C.C. at para. 5.

[47] In these circumstances, I acknowledge that Ms. Robertson was released on probably the most restrictive form of judicial release: house arrest with few exceptions and only in the presence of her surety and subject to electronic monitoring. She was released to live with her aunt and uncle in Burlington, Ontario. She could not work or attend school. She made the most of the time by completing certain courses online. I am of the view that Ms. Robertson should receive credit for the time spent under very restrictive bail conditions during the 710 days since her release from custody which had a significant impact upon her. I exercise my discretion and award credit of 0.25 for each day on restrictive house arrest bail in accordance with Downes and this would equal 178 days.

[48] To summarize, I impose a global sentence of 5 years which equals 1,865 days of imprisonment. In accordance with R. v. Duncan and R. v. Marshall, for harsh pre-sentence incarceration conditions, I exercise my discretion and credit Ms. Robertson for 25 days of pre-sentence custody at 2:1 which equals 50 days. For the restrictive conditions of bail in accordance with Downes, she is credited with 178 days. With a total of 228 days of credit, the balance is 1,637 days of imprisonment remaining to be served.

[49] I further make an order under s. 109 prohibiting Ms. Robertson from possessing any weapon as defined by the Criminal Code for life. I also order that Ms. Robertson provide a sample of her DNA pursuant to s. 487.051(3) of the Criminal Code as she was convicted of both primary and secondary designated offences. There will be an order of forfeiture of the firearms and ammunition.

Himel J. Released: July 26, 2024