COURT FILE NO.: CR-22-10000679-0000 DATE: 20240108

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - MICHAEL CARTY

Counsel: Anna Tenhouse, for the Crown Andrea Vanderheyden, for Mr. Carty

HEARD: April 14; December 13 and 18, 2023

M. Forestell J.

REASONS FOR SENTENCE

Background and Positions

[1] Michael Carty pleaded guilty before me on April 14, 2023 to the offence of manslaughter in relation to the shooting death of Andre Rodriguez on September 10, 2020.

[2] The Crown seeks a sentence of seven years’ imprisonment before statutory credit for presentence custody at 1.5 to 1. The position of the Crown was that although they would have sought a sentence in the nine-year range, as they did for the co-accused, Mr. Daoud, because Mr. Daoud received a 6 1/2-year sentence, the principle of parity supports a sentence closer to the sentence given to the co-accused. The position of the Crown, however, is that Mr. Carty played a greater role in the offence and should receive a slightly higher sentence than the sentence imposed on Mr. Daoud.

[3] Counsel for Mr. Carty submitted that a sentence of 4 1/2 years would have been appropriate before consideration of harsh conditions of presentence custody. Counsel for Mr. Carty submitted that the sentence should be reduced by six months as mitigation for harsh conditions and therefore sought a sentence of four years’ imprisonment before statutory credit for presentence custody.

[4] After hearing the evidence and submissions on sentencing, I reserved my decision on sentencing until today.

The Circumstances of the Offence

[5] The circumstances of the offence are set out in the Agreed Statement of Fact which is Exhibit 5 on sentencing.

[6] On September 10, 2020, Mr. Carty met with Abdelmuneim Abdalla, Mohamed Daoud and Ayuub Jama in the parking lot of a gym where Mr. Carty worked. Mr. Carty provided a green backpack that was packed with paper towels. The men discussed a plan to steal drugs from Andre Rodriguez. Mr. Carty understood that the plan was to meet Mr. Rodriguez in a Walmart parking lot on the pretense of purchasing drugs. They intended to give Mr. Rodriguez the backpack with paper towels and tell him it contained money. Mr. Abdalla told Mr. Carty that he did not expect Mr. Rodriguez to look in the bag but if he did, they would punch him in the face and push him out of the car.

[7] They planned to attend the parking lot in two separate cars. Two of the men would meet with Mr. Rodriguez in one car and the other two men would act as lookouts in the other car. Initially, Mr. Carty was with Mr. Abdalla who was going to meet with Mr. Rodriguez. After they arrived in the parking lot, Mr. Carty thought he might know Mr. Rodriguez and was concerned that he would be recognized. He also believed that Mr. Jama, who was bigger than him, would be more intimidating. He then switched places with Mr. Jama.

[8] Mr. Rodriguez entered the vehicle with Mr. Abdalla and Mr. Jama while Mr. Carty and Mr. Daoud acted as lookouts in the other vehicle. Mr. Carty heard a loud bang and saw the other car leave the parking lot at a high rate of speed. He later learned that Mr. Rodriguez had been shot and killed while he was in the other vehicle. Mr. Carty met with the other men in the parking lot of the gym after the shooting.

[9] Mr. Carty attended the police station on October 8, 2020 and gave a statement to the police admitting his involvement in the offence. He was subpoenaed to testify at Mr. Jama’s trial. Mr. Daoud pleaded guilty to manslaughter. Mr. Abdalla was never apprehended.

Victim Impact

[10] As I wrote in my reasons for sentencing Mr. Daoud, Andre Rodriguez was only 26 years old when he was shot and killed in the Walmart parking lot on September 10, 2020. He left behind his parents, his sister, and his girlfriend of 12 years as well as extended family and friends. His sister, Tamara Rodriguez, described the profound impact of this crime on her and on her parents. They have suffered mentally, emotionally and physically. Both of Mr. Rodriguez’s parents have suffered from depression and have been unable to work. Tamara Rodriguez also continues to suffer from the loss of her brother. She feels the pain of her own loss and the pain of watching her parents suffer.

Circumstances of the Offender

[11] Mr. Carty is 28 years old. He was 25 years old at the time of these offences. He has a criminal record with convictions for trafficking in a Schedule I substance, possession of a firearm or ammunition contrary to a prohibition order and failing to comply. The last convictions were in 2016. His longest sentence was 225 days’ imprisonment for the trafficking charge. The circumstances of the conviction for possession of a firearm or ammunition contrary to a prohibition order were that Mr. Carty possessed a starter’s pistol.

[12] I have the benefit of an Enhanced Pre-sentence Report prepared by Jacquie Pemberton, a social worker with 14 years’ experience with racialized children and families. The report provides information about anti-Black racism and its impact on Mr. Carty. The report sets out in detail Mr. Carty’s background and character, the obstacles he has faced, and his achievements.

[13] Mr. Carty is a Black man of Jamaican, Irish and Guyanese descent. Mr. Carty was raised by his mother. His father had some involvement with Mr. Carty as he grew up, but that involvement was inconsistent. Mr. Carty’s mother had a difficult upbringing and experienced domestic abuse. Mr. Carty was placed in foster care when he was in grade 3 or 4. Mr. Carty was bullied both at home and in the foster home.

[14] Mr. Carty was able to complete high school in spite of frequently changing schools and being suspended from school. After taking about two years off from school, Mr. Carty completed his high school credits as an adult. After his release from jail in 2016, Mr. Carty did an apprenticeship to become a carpenter and was certified with the union. He then obtained his landscaper’s license in 2017/2018 and also completed the Auto Body Mechanic Program at Centennial College in 2018.

[15] In presentence custody Mr. Carty has completed an addiction management program.

[16] Mr. Carty has two children: a daughter aged 12 and a son aged 2 years. Mr. Carty has joint custody with his mother of his 12-year-old daughter. He speaks to his daughter daily. Mr. Carty’s son was born while he was in custody. He has tried to have as much contact with his son as his circumstances have allowed. Mr. Carty is reported by family and friends to be a committed parent to his children.

Conditions of Detention

[17] Mr. Carty has been in custody for 1,188 days. Lockdown records have been filed as part of the record on sentencing. Those records disclose that Mr. Carty was subject to lockdowns on 382 days from his arrest until December 13, 2023.

[18] As I have observed in other sentencing decisions, staff shortages plagued the Toronto Region detention centers pre-pandemic. The conditions of detention worsened during the COVID-19 pandemic. Family visits were curtailed. Programming was cancelled. Recreation was limited. Health services were strained. Mr. Carty was in custody through most of the pandemic.

[19] Mr. Carty had to be housed in the Special Handling Unit for almost two years of his presentence custody because he had given a police statement and testified at the trial of his co-accused. Even when not on lockdown, the time an inmate is permitted out of his cell on the Special Handling Unit is limited to two hours per day. Mr. Carty will likely have to remain in a segregated form of custody for the duration of his sentence, making the sentence more onerous than a similar sentence imposed on an offender who can serve that sentence in the general population.

Law and Analysis

[20] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.

[21] Denunciation and specific and general deterrence are generally the predominant sentencing objectives in sentencing for manslaughter. Rehabilitation is also a sentencing objective in determining the appropriate sentence for manslaughter especially for a youthful offender like Mr. Carty who faces his first significant period of incarceration.

[22] In arriving at an appropriate sentence, I must consider aggravating and mitigating circumstances with respect to the offender and with respect to the offence.

[23] Aggravating circumstances are:

• The robbery was planned, and Mr. Carty participated in the planning;
• The offence occurred in a busy public area;
• The robbery was related to the drug trade;
• All participants, including Mr. Carty, fled and took steps to avoid detection immediately after the shooting, although Mr. Carty went to the police reasonably soon after the offence;
• The offence had a profound impact on the family of the victim; and
• Mr. Carty has a criminal record.

[24] Mitigating factors are:

• That Mr. Carty entered a guilty plea at an early opportunity. He has accepted responsibility and is genuinely remorseful for his role in this offence;
• He has support in the community;
• He has pursued an education and has been gainfully employed;
• He grew up in poverty and had few supports through his childhood and adolescence;
• He has taken steps towards rehabilitation by participating in available programming while in custody.

[25] Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[26] The offence in this case is serious. Mr. Rodriguez lost his life in the course of a planned robbery. Mr. Carty did not subjectively foresee the use of a gun, but he did foresee the use of violence.

[27] Mr. Daoud, who also entered a guilty plea to manslaughter for his role in the same offence, was sentenced to 6.5 years’ imprisonment before credit for time in presentence custody.

[28] The principle of parity requires similar sentences be imposed on offenders who committed similar offences. This principle requires me to consider carefully the sentence imposed on the co-accused in this case and the similarities or distinctions in the circumstances of these two offenders and their respective roles in the commission of the offence.

[29] Although their personal circumstances are not identical, they are similar. Mr. Carty and Mr. Daoud both had difficult personal circumstances growing up and both experienced exceptional hardship in custody. Mr. Daoud had mental health issues that factored into the sentence. However, Mr. Daoud also had a more serious and related criminal record than Mr. Carty. Both men have support in the community and potential for rehabilitation.

[30] With respect to Mr. Carty’s potential for rehabilitation, I am impressed by the significant steps Mr. Carty has taken to complete his education and obtain reliable employment. Mr. Carty faced real obstacles in his childhood and adolescence. In spite of poverty, frequent changes of schools, and a very difficult period of time in foster care, Mr. Carty completed high school and then completed post-secondary programs. This speaks to his determination, his work ethic and to his intelligence. Mr. Carty appears to be a person capable of achieving success in the field of employment that he ultimately chooses.

[31] Mr. Carty’s role in the offence was similar to that of Mr. Daoud. Both were in the lookout car at the time of the shooting. Both were present at the planning of the robbery. The Crown argues that Mr. Carty played a greater role in the planning of the robbery, providing a location to meet and providing the bag filled with paper towels which was to be used to trick the victim. Counsel for Mr. Carty points out that Mr. Daoud was aware of the presence of a gun while Mr. Carty believed that only physical violence would be used, reducing Mr. Carty’s level of culpability.

[32] I do not find that the there was any appreciable difference in the involvement of Mr. Daoud and Mr. Carty in the planning of the robbery. I find that the fact that Mr. Carty did not know there was a gun to be used in the robbery is a significant distinguishing factor between the role of Mr. Daoud and that of Mr. Carty. I find that this distinguishing factor reduces Mr. Carty’s level of culpability and justifies the imposition of a sentence below the sentence imposed on Mr. Daoud.

[33] I have considered the cases provided by counsel and will not review each of those cases in detail. I agree with the observation by Gomery J. (as she then was) in R. v. Tsega, 2021 ONSC 4651, that the range of sentence for an offender who aids in the planning and/or escape from a robbery that results in the death of the victim but who is unaware of the presence of a gun is four to seven years’ imprisonment. Mr. Tsega was an 18-year-old first offender who had been on conditional release for 9 1/2 years, during which time he had led what was described as a blameless life. Justice Gomery held that a sentence of five years was appropriate before six months’ credit for time spent on bail or an effective sentence of 4.5 years before credit for presentence custody.

[34] I do not find that Mr. Carty’s circumstances place him at the bottom of the range of four to seven years. While his record is not lengthy and there is a gap of four years, he is not a first offender. His role in the planning of the offence went beyond the role played by Mr. Tsega, who provided information to the offenders who committed the robbery and killed the victim.

[35] I find that Mr. Carty’s involvement and his personal circumstances place him closer to the middle of the range described by Justice Gomery. In reaching this conclusion I have considered that Mr. Carty’s time in custody to this point has been extremely onerous. The Court of Appeal in Marshall, at para. 52 held that particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account in arriving at an appropriate sentence.

[36] I have also considered that the sentence to be served will involve hardship beyond that experienced by other offenders serving sentences for similar offences. See R. v. Suter, 2018 SCC 34, at para. 48.

[37] Having weighed the relevant factors and principles of sentencing and taking into account the harsh conditions experienced by Mr. Carty, I am satisfied that the appropriate sentence is one of 5.5 years before statutory credit for the time spent in pre-sentence custody.

Conclusion

[38] For these reasons, I sentence Mr. Carty to 5.5 years’ (or 2,009 days) imprisonment before statutory credit. He has spent 1,188 actual days in custody which are credited at 1.5:1 as 1,782 days. The remaining sentence to be served is 227 days or seven months and 14 days.

[39] There will be a s. 109 order prohibiting Mr. Carty from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[40] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. S. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Carty provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

[41] There will also be an order under s.743.21 prohibiting Mr. Carty from communicating directly or indirectly with Mohamed Daoud, Ayuub Jama, Abdelmuneim Abdalla and any member of the family of Andre Rodriguez.

M. Forestell J. Released: January 8, 2024