R v. Daniel, 2024 ONSC 4952
Court file no.: CR-22-00000103-0000 Date: 2024 08 22
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING v. DAKARI DANIEL
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE C. CONLAN on August 22, 2024, at MILTON, Ontario
APPEARANCES: K. Ginn, Counsel for the Crown Y. Eshetu, Counsel for Dakari Daniel
REASONS FOR SENTENCE
The Court would like to thank Mr. Ginn and Mr. Eshetu for your very helpful submissions on sentence. In this particular case, I will be outlining the sentence at the outset and then providing the reasons for the sentence. The sentence of the Court is as follows.
In terms of ancillary orders, the victim fine surcharge is not waived, it applies on each of the two convictions. Mr. Daniel is granted twelve months to pay the victim fine surcharges. There is a primary DNA order issued. There is a section 109 Criminal Code of Canada firearms and weapons prohibition order issued. The Crown suggested a duration of ten years. This Court imposes the order for life, for all items listed. There is a forfeiture order issued as requested by the Crown, and in the form as presented for the $300 seized from Mr. Daniel.
On count number one, the conviction under section 244.2(1)(a) of the Criminal Code, the sentence of the Court is twelve months imprisonment.
On count number three, the conviction under section 344(1)(a.1) of the Criminal Code, the sentence of the Court is twelve months less one day imprisonment consecutive, to be served by way of a conditional sentence order under section 742.1 of the Criminal Code, to be followed by a probation order for a duration of three years.
In summary, the total custodial sentence is two years less one day. Twelve months incarceration on count number one, to be followed by a conditional sentence order of twelve months less one day in duration on count number three. With regard to the conditional sentence order, all of the compulsory conditions under section 742.3(1) of the Criminal Code apply. Mr. Daniel shall keep the peace and be of good behaviour. He shall appear before the Court when required to do so by the Court. He shall report to a supervisor by no later than 4:00 o'clock p.m. on Friday August 23, 2024, and thereafter when required by the supervisor and in the manner directed by the supervisor. He shall remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor. He shall notify the Court or the supervisor in advance of any change of name or address and promptly notify the Court or the supervisor or any change of employment or occupation.
In addition to those compulsory conditions, the following optional conditions apply under section 742.3(2). All of these optional conditions apply for the entire length of the conditional sentence order. Mr. Daniel shall abstain from the consumption of drugs, except in accordance with a medical prescription. Mr. Daniel shall abstain from the consumption of alcohol or any other intoxicating substance. Mr. Daniel shall not attend within one hundred metres of the Pizza Nova establishment at 6921 Derry Road in Milton. Mr. Daniel shall abstain from owning, possessing, or carrying any firearm or weapon. Mr. Daniel shall perform two hundred and forty hours of community service. Mr. Daniel shall be the subject of a home confinement clause. The home confinement is twenty-four hours a day, seven days per week. The following are the exceptions to the home confinement clause. An exception for court attendances, including direct travel to and from. An exception for meetings with legal counsel, including direct travel to and from. An exception for meetings with the supervisor, including direct travel to and from. An exception for religious services including direct travel to and from. An exception for medical and dental appointments and emergencies for Mr. Daniel or any member of Mr. Daniel's immediate family, including direct travel to and from. An exception for community service work, including direct travel to and from. And an exception for every Saturday, between 12 o'clock noon, and 2 o'clock p.m., for obtaining the necessities of life, including direct travel to and from. Finally, there is an exception for any other purpose with the prior written permission obtained from the supervisor in advance which permission must be carried on the person of Mr. Daniel at all times when away from his home.
With regard to the three-year probation order, all compulsory conditions under section 732.1(2) apply. As well, the following optional conditions under section 732.1(3) apply. All of these optional conditions persist for the entire duration of the three-year probation order. Mr. Daniel shall report to a probation officer within two working days within the commencement of the probation order and thereafter when required by the probation officer and in the manner directed by the probation officer. Mr. Daniel shall not attend within one hundred metres of the Pizza Nova establishment, referred to earlier in these reasons. Mr. Daniel shall remain within the jurisdiction of the Court, unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer. Mr. Daniel shall abstain from the consumption of drugs except in accordance with a medical prescription. Mr. Daniel shall abstain from owning, possessing, or carrying any firearm or weapon. Mr. Daniel shall perform two hundred forty hours of community service over a period not exceeding the first eighteen months of the probation order. Mr. Daniel shall attend for any counselling or treatment as recommended by the probation officer and not leave that counselling or treatment program without the prior written approval of the probation officer. In order to monitor Mr. Daniel's compliance with the counselling and or treatment clause, Mr. Daniel shall sign any necessary releases of information demanded of him.
What follows is an explanation by this Court as to why I have concluded that the sentence imposed is a fit one for this offender on these facts.
First, I want to make clear that the sentence outlined by the Court earlier is the net sentence imposed on Mr. Daniel, that is, the sentence from today. The sentence imposed is on top of the pre-sentence custody served by Mr. Daniel. I have considered the pre-sentence custody served by Mr. Daniel. I have considered the lengthy house arrest bail that Mr. Daniel has been the subject of. Those items have been factored into the sentence that has been imposed.
In terms of the convictions, on March 25, 2024, Mr. Daniel entered guilty pleas on counts one and three of the indictment. Count one, that on or about the tenth day of June in the year 2021, at the Town of Milton, did discharge a firearm into a place, namely Pizza Nova, in a reckless manner, contrary to section 244.2(1)(a) of the Criminal Code. And count three, that Mr. Daniel, on or about the same date, at the same place, did use a firearm, namely a rifle in robbing Z.E. of a sum of money, contrary to section 344(1)(a.1) of the Criminal Code.
In terms of the facts of the offences, they are as follows. On June 10, 2021, at 6:51p.m., Mr. Daniel attended at the Pizza Nova at 6921 Derry Road in Milton. He entered the store through the front door, he was wearing a bandana concealing his face. He discharged a single shot from the firearm striking the soda refrigerator behind the counter. He proceeded to make verbal demands for money while brandishing the firearm. The store employee complied with the demand and provided cash to Mr. Daniel from the register. Mr. Daniel then fired another shot striking the water tank in the rear of the store. Mr. Daniel ultimately exited through the front door to a motor vehicle — to a parked motor vehicle and drove away from the scene at a high rate of speed. No employees in the store were injured despite the discharges from the firearm.
In terms of the circumstances of the offender, a summary is as follows. Much of the following information is taken from the Pre-Sentence Report. Mr. Daniel is still a relatively youthful adult. He was born on March 14, 1995, and is currently less than thirty years of age. Mr. Daniel has, what I would describe as being a fairly limited criminal record. He has a conviction for fraud out of Brampton in 2015, for which he received a conditional sentence order of six months and probation for twelve months. He has two further convictions out of Toronto from September 2019, a conviction for uttering threats and a conviction for simple assault. On those matters, Mr. Daniel received a suspended sentence and probation for twelve months, plus a section 110 Criminal Code firearms and weapons prohibition order for five years. During his formative years in Jamaica, Mr. Daniel endured physical and emotional abuse from at least one family member, his uncle. Mr. Daniel experienced a very difficult, challenging childhood, and at times lacked the basic necessities of life. At the age of eleven years old, Mr. Daniel returned to Canada living with his grandmother. Mr. Daniel then lived in a very challenging neighbourhood. He became homeless in his early teenage years and resorted to the selling of drugs for mere survival. After residing at one of his aunt's homes, Mr. Daniel again became homeless due to an altercation that his aunt had with his mother. Throughout these struggles, Mr. Daniel began dating a lady named Ms. Bennett, with whom he shares two daughters. One of Mr. Daniel's daughters has mild autism. Mr. Daniel's mother separated from his father before his birth, and has since been with another gentleman, Mr. Robinson, who has played a fatherly role in Mr. Daniel's life. Despite his many hardships, Mr. Daniel maintains positive relationships with his family. Mr. Daniel completed grade eleven in high school. Mr. Daniel has a relatively consistent work history, which includes various general labour positions as a dishwasher, a cook, a customer service representative. Currently, Mr. Daniel is self-employed as a tax consultant and also operates a home-based business as a tattoo artist. Mr. Daniel was "very cooperative, polite, and forthright", with the author of the Pre-Sentence Report. Mr. Daniel acknowledged to the author of the report a history of alcohol abuse. He also acknowledged to the author of the report, past experimentation with illegal prescription drugs such as Percocet and daily marijuana use. To his credit, recently, Mr. Daniel has managed to get his substance abuse problem under control. He now consumes alcohol socially and no longer abuses illegal substances. At page four of the Pre-Sentence Report, the author specifically points out that Mr. Daniel was, throughout the Pre-Sentence Report process, polite, cooperative, forthright with information, and responsive to all questions asked of him. The author also indicated that Mr. Daniel accepted full responsibility for his actions, made no excuses for his behaviour, did not try to minimize what happened in any way, and expressed a profound regret for what occurred at the Pizza Nova. I'm not surprised to have read that in the Pre-Sentence Report because during his allocution to the court today, Mr. Daniel also expressed what I perceived to be genuine regret and remorse for what occurred. At page five of the Pre-Sentence Report, Mr. Daniel is described as a complex individual, shaped by a challenging upbringing and subsequent struggles, as a person who faced more than the usual level of adversity, a person who maintains strong familial bonds despite everything that he has experienced, a person who exhibits entrepreneurial drive, evidenced by his self-employment endeavours. I view this Pre-Sentence Report particularly for someone with such a challenging history to be a very positive report and it is a significant reason why this Court has imposed the sentence that it has imposed, which undoubtedly, is at the very low end of the range for these types of offences. The positions of the Crown and the defence put forward today may each be justified. Each position advanced may be seen arguably as being a reasonable one. The Crown has advocated a position of five to seven years imprisonment, less consideration for Pre-sentence custody. The defence has suggested a six-month jail sentence to be followed by a conditional sentence order of eighteen months less one day plus three years of probation. This Court has imposed a sentence that is neither that advocated for by the Crown nor that suggested by the defence. It is certainly closer to that suggested by the defence, but more severe, in that, instead of six months jail, the sentence imposed is twelve months jail, and instead of a conditional sentence order of eighteen months less one day, the conditional sentence order is for twelve months less one day. In terms of the principles of sentencing, this Court agrees with the Crown that the paramount principles of sentencing in this case are denunciation, general deterrence, individual or specific deterrence, and rehabilitation. General deterrence is important because this Court must condemn the serious unlawful conduct of Mr. Daniel, this Court must denounce that unlawful conduct. General deterrence is important in this case because the sentence imposed by this Court must send a strong message to the community at large that those who risk coming to Court for conduct like this involving a firearm, whether or not the firearm is discharged, used in a threatening manner, in a public place, those persons do so at their own peril. Those persons ought to expect to receive a serious custodial sentence, even with strong mitigating factors in their favour, such as those, that exist for Mr. Daniel.
Specific deterrence is important because Mr. Daniel needs to understand himself individually that he must not return to court in the future or else the sentence imposed will be more draconian than that imposed today.
Rehabilitation is important because Mr. Daniel is still a relatively youthful adult. He is by no means beyond any reasonable prospect of rehabilitation. He is less than thirty years old, he has a family, he has children, he has employment, he obeyed a strict bail order for more than three years, he has a very limited criminal history that pre-dates these offences. He is, in my opinion, a good candidate for successful rehabilitation.
With regard to the aggravating and mitigating factors, this Court agrees with Ms. Ginn that the aggravating nature of these offences stems from the very dangerous cocktail of facts of what happened on this day at Pizza Nova. The brandishing of the firearm was dangerous in and of itself, the taking of the firearm inside this public store was dangerous in and of itself, the discharge of the firearm, more than once, was terribly dangerous. Even if Mr. Daniel did not intend to have any person struck by a bullet, that could very well have resulted by accident. It could have been an employee of the store, including the delivery person, it could have been a member of the public who was simply visiting the store at the time in question. It could have been Mr. Daniel who was struck by a bullet inadvertently. Everyone is very fortunate that the incident ended the way it did.
In terms of the mitigating factors, there are several in my view. First and foremost, the guilty pleas entered by Mr. Daniel. The guilty pleas are themselves signs of Mr. Daniel's genuine remorse, an unqualified acceptance of his responsibility. The guilty pleas saved the witnesses from having to testify at trial. The guilty pleas saved trial time, although they were entered very late, they still saved trial time. The guilty pleas brought finality to the proceeding for the benefit of the victims, those who were in the store at the time. In this case, the guilty pleas have an even stronger effect on mitigation because they were entered in the face of very triable issues. This was not an overwhelming case for the Crown. This was an arguable case for the Crown, but a case with weaknesses, a case with real risks in terms of whether the identity of the perpetrator could be proven beyond a reasonable doubt, whether all of the essential elements of the offences could be proven by the Crown beyond a reasonable doubt. This is a case that had genuine frailties to it, and in the face of those frailties, Mr. Daniel stepped up and pleaded guilty. Those guilty pleas are different than a guilty plea that is entered in the face of an overwhelming Crown case. In the latter situation, the guilty plea is still mitigating, but not to the same degree. Here, these guilty pleas have to be treated with real significance by this Court. This is not a novel concept; this will be known to experienced counsel on both sides. There are many cases where the value of a guilty plea entered in the face of strong triable issues is discussed. One of those cases is a decision of Justice Heeney, in a case called Glenfield, 2015 ONSC 6252. Justice Heeney is a very experienced Superior Court judge, was for some time the Regional Senior Justice in that region of Ontario, and in that decision, Justice Heeney at page six speaks about the strong mitigating circumstance of a guilty plea entered in the face of very triable issues. As Justice Heeney puts it at page six:
First and foremost, the accused has pleaded guilty, and has thereby waived his right to a trial and thereby eliminated the possibility of a verdict of acquittal. The plea was late in coming but it is nevertheless significant. He did so in the face of triable issues and thereby gave up the prospect of a favourable outcome with respect to those issues.
I think the exact same thing can be said in the case of Mr. Daniel. In addition to the guilty pleas, there is the very positive Pre-Sentence Report that has been filed to which I referred to earlier in these reasons. Mr. Daniel is not a first offender, but he is close to being a first offender. He has a relatively limited criminal history. Mr. Daniel has dependants, and is a person of, apart from this egregious incident, good character. The Pre-Sentence report indicates that Mr. Daniel is someone who has overcome a level of adversity that I am not sure even others in this courtroom would have been able to overcome. I suspect that many who visit this courthouse on a daily basis have not experienced that level of adversity. So there are strong mitigating factors in this case, that this Court has attempted to balance against the very serious facts of the incident itself.
That left for this Court to decide what is a fit sentence for this offender on these facts. Sentencing is a highly individualized process; it is not a cookie-cutter industry. It is not a science; it is much more artful than that. At the end of the day, I think that the sentence that has been imposed by this Court meets the principles of sentencing in the Criminal Code. I think it is commensurate with the degree of moral blameworthiness on the part of this offender. I think it properly recognizes the aggravating and the mitigating factors. Every case is unique, Ms. Ginn delivered very able submissions today on behalf of the Crown. This Court agrees with the Crown that the jurisprudence makes clear that the type of sentence imposed today by this Court on Mr. Daniel is a real rarity for these types of offences. It is a truly exceptional sentence on the unique facts of this case, because generally as the jurisprudence indicates, including the decisions of the Supreme Court of Canada in Hilbach, 2023 SCJ 3 and Hills, 2023 SCC 2, sentences for these types of offences, for firearms offences, for robbery offences, regardless of a discharge of the firearm or not ought to be mid-level penitentiary sentences. In my view, a departure from what might be seen as the norm in sentencing for these types of offences is appropriate in this particular case. I am satisfied that the statutory requirements for a conditional sentence order have been met in this case. I am satisfied that a total sentence from today of less than two years in duration is fit for Mr. Daniel, I am satisfied that having Mr. Daniel serve part of the total sentence by way of a conditional sentence order is consistent with the fundamental purpose and principles of sentencing as outlined in the Criminal Code, and I am satisfied that the other statutory pre-requisites for a conditional sentence order as outlined in section 742.1 of the Criminal Code clauses (a) through (d), are met in this case. Counsel, that concludes the reasons, the explanation for the sentence that has been imposed by the Court. Before I ask Mr. Daniel, some questions and caution him about the consequences of breaching any of these orders, I would like to know if there is anything that you think I have left out or any questions you want to ask me about the sentence.
MS. GINN: Your Honour, if I can just clarify one thing, please. In terms of — it's my understanding that the carceral portion of the sentence would be served first, and then the conditional sentence afterward?
THE COURT: Correct.
MS. GINN: In terms of Your Honour's — the condition of when Mr. Daniel is required to report to the CSO supervisor, I think Your Honour had indicated that was the date this week...
THE COURT: That was a mistake.
MS. GINN: ...and I'm wondering if that should be within a certain number of days that he's released from the carceral portion.
THE COURT: That was a mistake, you are absolutely correct.
MR. ESHETU: That was my issue too.
THE COURT: So where I indicated earlier that Mr. Daniel was to report to the supervisor, I think I said by 4:00p.m. tomorrow, that is not the case. Mr. Daniel shall report to the supervisor within two working days after he is released from custody. Are there any other questions or clarifications being sought by counsel before I speak to Mr. Daniel?
MS. GINN: No, thank you.
MR. ESHETU: Just community service, two hundred and forty for the probation and two hundred and forty for the CSO?
THE COURT: Correct.
MR. ESHETU: Thanks. No other issues.
CLERK REGISTRAR: Court's indulgence, Your Honour. I have just one point that I would like to clarify...
THE COURT: Yes.
CLERK REGISTRAR: ...for the Crown. The order that you provided — the amount — it's not $300....
MS. GINN: It's $196, because he sent....
THE COURT: Oh, I apologize.
MS. GINN: That's my error, Your Honour.
THE COURT: I thought that the Crown said $300 in the oral submissions?
CLERK REGISTRAR: She did.
MS. GINN: I did. It was my error, Your Honour.
THE COURT: So I correct that now as well. So the order, the forfeiture order is not for $300, it is for $196.50.
MR. ESHETU: That's all — I think it was originally written on the order.
MS. GINN: Yes.
THE COURT: Yes, and I am signing the order now. So that is a correction, thank you. Mr. Daniel, you may remain seated, but I want you to listen carefully to what I am saying. We might as well start with the forfeiture order. There is nothing I need to explain further to you about that, I just want to make sure you understand, you have forfeited that money, you are not getting it back, do you understand that?
MR. DANIEL: Yeah.
THE COURT: The Court has made a primary DNA order. The DNA sample is usually by way of a blood sample. You must comply with the authorities; you must cooperate with the authorities in providing the DNA sample. If you do not, you could be charged with a further criminal offence. If found guilty, you could be sentenced to a period in jail. Do you understand that?
MR. DANIEL: Yes, Your Honour.
THE COURT: The section 109 firearms and weapons prohibition order for life. You must obey that order entirely. If you do not, you could be charged with a further criminal offence of breaching that order, and if found guilty you could be sentenced to a period of time in jail, do you understand?
MR. DANIEL: Yes, Your Honour.
THE COURT: The probation order for a period of three years which will come at the end of everything else, the three year probation order, you will receive a copy of the probation order, you must obey it in its entirety, if you do not, you could be charged with breach of probation and if found guilty of breach of probation, you more than likely will be sentenced to jail, do you understand?
MR. DANIEL: Yes, sir.
THE COURT: The conditional sentence order, which is twelve months less one day in duration, you must obey that order. If you do not obey that order, several things could result. First of all, you could be charged with breaching the conditional sentence order. You would likely not be granted bail; you would probably be held in custody on the breach of the conditional sentence order itself. If found guilty of breaching that order, you could be sentenced to a period of time in jail just for the breach, but perhaps most important, if you are found to have breached the conditional sentence order, you could be forced to serve the entire balance of the twelve months less one day in real jail, forced to go back behind bars in a jail cell for the entire remaining length of the order. Do you understand that?
MR. DANIEL: Yes.
THE COURT: Do you have any questions you want to ask the Court, Mr. Daniel, about any aspect of the sentence?
MR. DANIEL: In terms of my — would I be getting medical attention in....
THE COURT: I certainly hope so. I can put in the endorsement that you have a medical issue involving your wrist so that the endorsement will go along with your paperwork to the correctional facility. I do not work at the correctional facility obviously, so I cannot be there to see that it is looked after but I can do whatever I can. I can make some mention of it in the endorsement.
MR. ESHETU: Thank you, Your Honour.
THE COURT: Do you have any other questions you would like to ask the Court, Mr. Daniel?
MR. DANIEL: Before I go, can I say bye to my mom?
THE COURT: Yes. I wish you the best Mr. Daniel. What you did on this occasion was dreadful. I think you understand that now. It could have been catastrophic. You could have ended up being charged with murder, but you have a lot of other good things going for you, and you have been through things that most people have not, and you are still standing, you have a job, you are working for yourself in a couple of different capacities, you have children, you have family support here with you, your mom, so do not come back sir. Okay, so I am going to step out and allow Mr. Daniel an opportunity just to say goodbye to his mother....
MS. GINN: Your Honour, I apologize, before doing that, I believe there are remaining counts on the indictment, if they can please be marked withdrawn at this time.
THE COURT: Yes, the remaining counts on the indictment, this is the indictment dated December 1, 2022, those remaining counts are marked withdrawn at the request of the Crown, and I would like to thank Mr. Ginn and Mr. Eshetu for your very helpful submissions on the sentence.
MR. ESHETU: Thank you, Your Honour.
MS. GINN: Thank you, Your Honour.
THE COURT: So I will step out. Ms. Ginn, I wonder, if you have a moment, could you stay in the courtroom? There is something else I would like to raise.
MS. GINN: Yes, Your Honour.
. . .WHEREAS THIS MATTER WAS COMPLETED
FORM 3 ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Eric Magri, certify that this document is a true and accurate transcript of the recording of R v. Daniel in the Superior Court of Justice held at 491 Steeles Avenue East, Milton taken from Recording Number 1211_5_20240822_081812__10_CONLANC.dcr, which has been certified in Form 1.
September 10, 2024 Date (Electronic signature of authorized person)
3595206113 (Authorized court transcriptionist's identification number - if applicable)
Ontario, Canada (Province of signing)
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.