Reasons for Sentence
Court File No.: CR-23-757
Date: 2025-02-12
Ontario Superior Court of Justice
Between:
His Majesty the King
J. McKenzie, for the Crown
and
Carl Richard
D. Holt, for the Defendant
Heard: January 28, 2025
Justice: H.S. Arrell
Introduction
[1] Mr. Richard was charged with the attempted murder of Robert Fannon on May 15, 2022, in the City of Hamilton. He was also charged with discharging a firearm with the intent to wound Mr. Fannon; possessing a loaded prohibited firearm; and assaulting Mr. Fannon with a weapon during the same incident. He was convicted by a jury of assault with a weapon, possession of a loaded prohibited firearm, and discharge of a firearm with intent to wound. He was acquitted of the attempt murder charge.
[2] On a separate indictment CR-23-759, based on the same facts, Mr. Richard was charged with one count of breach of probation, three counts of breach of weapons prohibition orders as a result of various firearm possession offences. He pleaded guilty to those charges on January 28, 2025, at the sentencing hearing on the convictions from his trial.
[3] He is before me today for sentencing on both indictments.
Facts
[4] The facts before the jury were captured on surveillance cameras and heard through the viva voce evidence of various witnesses.
[5] On May 15, 2022, Mr. Fannon was in Coolers Sports Bar in Hamilton at approximately 1:00 a.m. Mr. Richard entered the bar wearing a hoodie, gloves, a surgical mask, a hat, and sunglasses. Mr. Fannon almost immediately confronted Mr. Richard and demanded that he leave as he was wearing a mask. This confrontation quickly turned into a physical altercation that escalated and eventually led to Mr. Richard pulling out a handgun from the satchel worn across his chest and shooting Mr. Fannon once in the chest. Following the shooting, Mr. Richard immediately left the bar. He turned himself into police two days later. Mr. Fannon was transferred to hospital, where he remained for ten days before being discharged.
[6] Approximately two hours prior to the incident that brought him before the court, Mr. Richard had attended the same bar and was dressed identically. At that time, Mr. Fannon also verbally confronted him, but after a brief verbal exchange Mr. Richard left. Mr. Richard did not re-enter the bar until approximately 1:00 a.m.
[7] Mr. Fannon, by his own admission, was very intoxicated at the time of the shooting and had little memory of the events that night. Mr. Richard had not consumed any alcohol. Mr. Fannon was bigger than Mr. Richard by about 50 lbs. Mr. Fannon was 49 years old and Mr. Richard was 37. Mr. Richard and Mr. Fannon did not know each other. Mr. Fannon testified that the way Mr. Richard was dressed made him uncomfortable (specifically the mask) but could give no other explanation as to why he confronted him.
[8] The entire incident occurred relatively quickly. Mr. Richard confirmed that he took a pool ball off one of the tables, put it in a sock he had with him, and swung it during the physical altercation. Mr. Fannon had a bruise on the side of his forehead. The parties separated after the short-lived physical fight. The evidence is less than clear as to whether Mr. Fannon was indicating, by words and/or hand gestures, that the fight was over or whether he was continuing to approach Mr. Richard when the shot was fired. Clearly, the jury concluded that Mr. Richard did not intend to kill Mr. Fannon; it is equally clear that the defence of self-defence was not accepted by the jury regarding any of the charges.
[9] Mr. Fannon was initially the aggressor. It appears that at least one other patron physically assisted Mr. Fannon during the fight. Some of the patrons, who were regulars at the bar, were known to Mr. Richard. The bar was not crowded at the time.
[10] Mr. Fannon’s injuries were serious. Dr. Sne, an expert in surgery and trauma care, treated the victim during his stay in hospital. He opined that Mr. Fannon had received a gunshot wound to the right side of his chest and his blood alcohol level was very high. The .22 caliber bullet had shattered after hitting one of Mr. Fannon’s ribs. He further opined that had the bullet not hit the rib, the injury may have been life threatening. The bullet fragments tore his liver and were lodged in his lung and abdominal wall. There was no exit wound from the bullet. The fragments remain in Mr. Fannon; there was no surgery to remove them. Mr. Fannon testified that he continues to have difficulties from the injury and does not feel that he has fully recovered.
Victim Impact Statements
[11] The court has received one victim impact statement from the victim, Mr. Fannon. He describes the difficult time he went through during his initial treatment in the hospital. This narrative is quite dated, as it has not been updated since May 22, 2022. At the time he made his statement Mr. Fannon spoke of his discomfort, due to the bullet fragments still in his liver, lung, diaphragm, and back. He was also being regularly monitored, as to whether future surgery would be required. Mr. Fannon’s current condition is unknown to the court, other than his brief comments about his current health while testifying at the trial. At trial, he stated that he did not feel fully recovered and that he was unclear whether any surgery might be necessary in the future. It remains unclear, to the court, following the trial, as to whether any permanent damage has/will be suffered.
[12] At the time of his statement, Mr. Fannon had not been back to work and was awaiting E.I. He anticipated a significant loss of income, and difficulty financially managing his ongoing expenses. He speaks of his continued fear for both him and his family and that Mr. Richard may turn up in his life again in the future. He has nightmares about the night when he was shot. I accept that this has been a very unexpected and traumatic event for Mr. Fannon, and his family, and that these tragic memories will stay with him indefinitely.
Letters of Support
[13] I have received three letters of support for Mr. Richard. Two from longtime friends who clearly think very highly of Mr. Richard as a trusted friend, who is confident, happy, and the life of the party.
[14] The court also received a letter from Mr. Richard’s girlfriend Ms. Allen. She has known him for nine years. Their relationship started when he worked for her in a restaurant that she was managing. She describes him as a trusted hard worker with excellent people skills. He was always ready to assist and go above and beyond his duties. He was an excellent chef. She has found that he consistently shows kindness to others and is always ready to help anyone who asks. He is responsible, understanding, generous, and compassionate to others, especially his grandparents, and shows respect for everyone. Ms. Allen believes the offender has worked hard in trying to upgrade his education and personal goals while incarcerated. She believes, from her conversations with Mr. Richard, that he is truly sorry for his actions and that he has learned valuable lessons. She believes that he is determined to move forward in a positive way in the future.
Criminal Record
[15] Mr. Richard has an extensive criminal record commencing in 2006 with his last conviction registered on September 2, 2021, in Kitchener. He was bound by a probation order when he committed these offences.
[16] Mr. Richard has four previous convictions for assault, two of which were assault causing bodily harm. He has three convictions for breaching court orders; four convictions for mischief under $5,000; two convictions for impaired driving; one conviction for possession of a weapon; and one conviction for possession of a schedule III substance.
Pre-Sentence Report
[17] Mr. Richard is currently 39 years of age. He was 37 at the time of these offences. He is not married and has no children. He described a difficult childhood of abuse, instability, and alcoholism with his parents. He has an older brother that he has little contact with. It appears that Mr. Richard was raised by his grandparents. He described associating with a negative peer group and at ten years of age was placed in foster care, and group homes, for several years due to his behaviour. Currently, Mr. Richard has little contact with his mother. His father and grandfather have passed, and his grandmother is in long term care with dementia.
[18] Mr. Richard has been in a relationship with Ms. Allen, aged 41, for some time. She is gainfully employed. They share an apartment and Ms. Allen describes their relationship as positive; she remains in regular contact with Mr. Richard.
[19] Mr. Richard completed grade 12, and in 2015, he completed a college manufacturing technology program. His employment record is sporadic with manual labour type jobs.
[20] Mr. Richard states that he started abusing alcohol and drugs at age 16. He believes the drug abuse has been more problematic for him.
[21] Mr. Richard advised the author of the pre-sentence report that he found the verdict of the jury to be fair and that he feels bad about the incident. He indicated that he kept a weapon on his person for protection following a physical altercation with his brother in 2020. He denied any mental health issues. He appears to have some community support from a small group of friends, and Ms. Allen.
Position of the Parties
The Crown
[22] The Crown seeks a global sentence of 13 years incarceration less mitigation for a Duncan credit and less pre-trial custody in accordance with Summers. The Crown submits that a sentence of 11 years is warranted for the conviction of discharging a firearm with intent; 5 years concurrent for possession of a loaded prohibited weapon; 6 months consecutive for the conviction of assault with a weapon; and 6 months consecutive for three of the counts in the second indictment being CR-23-759. The Crown agrees that count 3 in this second indictment should be stayed pursuant to Kienapple.
[23] The Crown submits that this incident started out as a consensual bar room fight, which quickly escalated into the shooting of an unarmed intoxicated victim entirely as a result of Mr. Richard’s actions. The Crown argues that Mr. Richard therefore carries a great deal of moral blameworthiness and as such, a substantial penalty emphasizing denunciation and deterrence must be foremost in the court’s reasoning. Provocation, according to the Crown, should play no part in the court’s decision; the initial confrontation that was started by Mr. Fannon was well over and, in fact, there was some evidence at trial that Mr. Fannon may have been gesturing with his hands or his comments that from his point of view the fight was over.
[24] The results of Mr. Richard’s violence very nearly resulted in the death of Mr. Fannon. He has been left with ongoing medical issues, pain, and mental trauma.
[25] The Crown argues that carrying a loaded, concealed handgun is a significant aggravating factor. Likewise, shooting that gun in a public bar, among a number of civilians, is also very aggravating. Others could easily have been injured or killed as a result of Mr. Richard’s violent actions. The Crown notes that the firearm has not been recovered, and is therefore potentially available for others to use.
[26] The Crown also filed some statistics from the Hamilton police, which purport to show an increase in gun violence in the Hamilton community. The Crown submits that such a trend should be addressed by the court with stricter sentences. Finally, the Crown emphasizes the very significant and related criminal record of Mr. Richard who is not a youthful offender. Such a record is a highly aggravating factor in sentencing.
The Defence
[27] Mr. Holt, in his submissions to the court, argued that a global sentence for all convictions should total 7 years less mitigation for a Duncan credit and Summers credit for pre-trial custody. The jail records point out particularly harsh pre-trial custody with lockdowns, triple bunking and sleeping on the floor, thereby justifying a substantial Duncan mitigation.
[28] The Defence agrees that denunciation and deterrence are significant sentencing principles in this case, however, rehabilitation plays a role and must be considered by the court. Mr. Richard is well educated and has done his best to better himself while in custody, taking some 15 different self-help programs and counselling. The pre-sentence report and the letters filed with the court show that Mr. Richard has support in the community. He is only 39 years of age and potentially has many years ahead of him as a productive member of society. His pre-sentence report is generally positive, and he has expressed remorse both to the court and within his pre-sentence report.
[29] The Defence submits that all of the sentences for all of the convictions, in both indictments, should be concurrent to the conviction of discharging the firearm with intent as they are all part and parcel of one short lived, continuous, event.
[30] The Defence argues that provocation is a very real factor in this case. Mr. Fannon clearly started the fight initially for no obvious reason. Once the parties separated Mr. Fannon continued to advance on the offender. Provocation should be given reasonable weight by way of mitigation.
[31] The Defence submits that the cases cited by the Crown are distinguishable from the case at bar; they have substantially more aggravating factors and much more serious factual matrices. Specifically, these cases tend to deal with multiple shootings that are planned and deliberate without any element of provocation.
The Law
[32] This court is guided by the principles of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code, RSC 1985, c C-46 (the “Code”).
[33] As directed by s. 718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives most relevant to this case are denunciation of the unlawful conduct, deterrence of other potential offenders, and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The particular circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors in each case.
[34] Section 718.2 addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles.
[35] Proportionality is the cardinal principal which must guide the fitness of the sentence imposed. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, para 12.
[36] In R. v. M. (C.A.), para 91, Lamer C.J. stated that sentencing is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions in the community.”
[37] Mr. Richard, in his comments to the court, expressed his shame for his actions and how thankful he is that Mr. Fannon did not die. He did not think he would have been able to live with himself if he had. He agrees that as a result of this offence he reached rock bottom, and swears to improve going forward. He acknowledges the suffering and trauma he has caused Mr. Fannon and his family. Although he does not expect it, he asks for Mr. Fannon’s forgiveness and for mercy from this court. I accept the offender’s remorse as expressed to the court and his acceptance of responsibility for his actions, although such remorse is very late and comes after his trial and conviction.
[38] Provocation is also relevant to determining a fit and proper sentence in this case. R. v. Clark, para 6, stands for the proposition that “provocation is one of the many factors to be considered when assessing the appropriate sentence.” In Clark, the Court of Appeal confirmed that even where provocation had already served to reduce the legal character of the crime, it deserved some modest consideration on sentencing, largely as a mitigating factor.
[39] Discharging a firearm with intent is a very serious offence. In fact, Parliament has set its minimum sentence at 5 years imprisonment for a first-time offence: see s. 244 of the Code.
[40] Both counsel have cited R. v. Bellissimo, 2009 ONCA 49, para 5, and cases that have followed it: see also R. v. Jefferson, 2014 ONCA 434. In Bellissimo, the defendant fired several shots in a restaurant injuring two people, one of whom was seriously injured. The Court of Appeal increased his sentence to 10 years (from an effective sentence of 8.5 years; 5 to be served when the pre-sentence credit was applied) for the gun related offences. At para. 3, the court indicated that the appropriate range of sentence for serious gun related offences was 7-11 years. The court went on to emphasize that the seriousness of these offences was hard to overstate. The court made clear that general deterrence and denunciation must be given paramount weight in any sentencing for these kinds of dangerous gun related charges: see Bellissimo, at para. 5.
[41] In R. v. Marshall, 2021 ONCA 344, para 50, the Ontario Court of Appeal discussed the principles of Summers and Duncan. The court, at para. 50, concluded that the “Summers” credit of 1.5:1, already accounts for the difficult and restrictive circumstances that offenders often encounter during pre-trial custody: see also R. v. Summers, 2014 SCC 26, paras 28-29. Thus, the “Duncan” credit addresses exceptionally punitive conditions, which go well beyond the normal restrictions associated with pre-trial custody, such as health risks from COVID or very restrictive jail conditions (as occurred here). The Duncan credit is often viewed as a mitigating factor in sentencing, while the Summers credit is deducted from the appropriate sentence. This deduction occurs once the appropriate sentence has been determined based on all of the mitigating and aggravating factors, as well as all of the other circumstances of the case: see also R. v. Cunningham, 2023 ONCA 36.
Aggravating Factors
[42] There are a number of aggravating factors before the court:
- The carrying of a prohibited loaded handgun in public which was readily available for use;
- Being on probation and under a weapons prohibition order at the time these offences were committed;
- The offender's lengthy criminal record for similar offences over a number of years;
- The firing of a gun in a public place;
- That this was a violent reaction against an unarmed, intoxicated individual; and
- That there were other options available to the offender, such as backing off, discussing the situation, calling the police, running away, and asking the other patrons for help.
Mitigating Factors
[43] There are a limited number of mitigating factors:
- Provocation;
- Restrictive terms of pre-trial incarceration;
- The support of Ms. Allen and some friends;
- A difficult upbringing; and
- Expressions of remorse after conviction.
Analysis
[44] The carrying of a loaded handgun into a public bar and discharging it at an unarmed intoxicated individual is extremely serious. But for the bullet hitting Mr. Fannon’s rib he could quite possibly have died (as according to Dr. Sne); Mr. Richard would then be before this court for murder.
[45] Mr. Richard has a significant related criminal record spanning many years. He is not a youthful offender and is indeed more than old enough to understand how a lawful society operates. When committing these offences, Mr. Richard was on probation where he undertook to keep the peace and be of good behaviour. He also knew he was prohibited from carrying a weapon. His excuse to the court that he carried the loaded handgun because of a past altercation with his brother lacks credibility and suggests that he may well have used the gun on his brother or others in the future.
[46] The evidence indicates that even if Mr. Fannon was advancing toward the offender, Mr. Richard had ample time and opportunity to go around the victim and leave. Instead, he chose to shoot him. Clearly, the jury concluded that the offender was not in such imminent or significant danger that the shooting of Mr. Fannon was in self-defence.
[47] I conclude that the facts of this case indicate a very high level of moral blameworthiness, attaching to Mr. Richard for his indiscriminate violence against Mr. Fannon, the serious injuries Mr. Fannon suffered, and the symptoms and trauma he may well continue to experience.
[48] I must consider provocation, as the evidence is clear that Mr. Fannon, for no apparent reason, was the aggressor and initiated the original confrontation. However, I conclude that provocation in this case should be given minimal weight. The physical fight was over, and some witnesses recalled Mr. Fannon saying something and gesturing to that effect. More importantly, Mr. Richard had ample opportunity to extricate himself from any further confrontation but elected not to do so.
[49] As already indicated, in Bellissimo, the Court of Appeal referred to a range of seven to eleven years as being appropriate for “serious gun related offences”. Bellissimo is a case of sentencing after trial. In R. v. Dhaliwal, 2019 ONCA 398, the court endorsed a similar range for serious gun related offences.
[50] While somewhat different, in terms of their factual matrix, the following decisions are of use to the court in further considering the Bellissimo seven-to-eleven-year range.
[51] In R. v. Callaghan, 2018 ONCA 969, the Court of Appeal upheld a global sentence of ten years for an offender with a criminal record and prohibition orders in force after he discharged a handgun on a residential street and led police on a high-speed chase.
[52] In R. v. Holdsworth, 2018 ONCA 828, the Court of Appeal confirmed a global penalty of ten years following a jury trial on charges similar to the case at bar, but where the offender discharged a firearm in an apartment.
[53] In Jefferson, the appellant was convicted of similar charges to the case at bar following a jury trial. Mr. Jefferson had walked out onto a roadway, stopped in front of a vehicle, and fired a single shot from a handgun through the car window at the victim, who was a passenger. There was a history of animosity between the parties. The bullet struck the victim in the arm. The court upheld the ten-year global sentence.
[54] In R. v. Weeden, 2019 ONSC 773, the offender attended a bar in downtown Toronto. Following a dispute with other patrons, he retrieved a gun and fired a single shot outside the bar where everyone had assembled. The bullet struck an uninvolved Uber driver who was waiting nearby in his car. Mr. Weeden was convicted of various offences, including discharging a firearm with intent and aggravated assault. The court imposed a sentence of nine-and-a-half years for the firearm/assault offences.
[55] In R. v. Sauve, 2019 ONSC 960, the offender and another male arrived at a townhouse complex, fired 13 projectiles into the living room window of that residence, and then fled. A ten-year-old child was shot but survived. The offender was found guilty after trial of discharging a firearm, aggravated assault, and other firearm related offences. The offender had a criminal record for crimes of violence. He was also on parole and probation. Justice Byrne imposed a global twelve-and-a-half year sentence. Provocation was not an issue in this case, though the potential harm to the public I find was far greater than in the case at bar and clearly there was planning and deliberation which is not present in the case at bar.
[56] Finally, in R. v. Cortez, 2023 ONCA 636, the accused was convicted of discharging a firearm out a car window at another car and being in possession of a loaded prohibited gun. He was sentenced globally to six years. The main distinguishing features of that case were that no one was injured and the accused was not the shooter as he was a co-accused.
[57] I have reviewed all of the other cases submitted by both counsel. None are directly on point as is usual as all cases are unique as is each offender.
[58] Mr. Richard has been subject to 1003 days of pre-trial custody. The jail records indicate 45 days were full lockdown; 24 days were partial lockdown; 83 days he was triple bunked; and 285 days he slept on the floor of his cell, for reasons that are not explained in the records.
[59] I accept from these pre-trial lockdown records that the conditions Mr. Richard endured were difficult and outside the norm, as is covered by the Summers credit of 1.5:1. I also accept that such conditions, as described, would be considered a mitigating factor as per Cunningham, Marshall, and Duncan. Both counsel have submitted that mitigation of roughly six months would not be inappropriate.
Conclusion
[60] I have attempted to balance the aggravating and mitigating factors listed. I have also taken into account mitigation under the Duncan principles, for the exceptionally harsh pre-trial jail conditions endured by Mr. Richard. I have considered the recommendations of counsel and the range of sentences in similar cases. This sentence also considers all the relevant principles of sentencing for this offence and offender, including rehabilitation along with deterrence and denunciation, as well as all the circumstances of this violent and senseless act. I conclude that a proper, fit, and fair sentence is:
- Discharge of a firearm with intent: 9 years;
- Aggravated assault with a weapon (pool ball in the sock): 6 months consecutive;
- Possession of a loaded prohibited weapon: 5 years concurrent;
- Count 1 of indictment CR-23-759: 6 months consecutive;
- Counts 2 and 4 of indictment CR-23-759: 6 months each and each to be served concurrently; and
- Count 3 of indictment CR-23-759 is stayed pursuant to Kienapple.
[61] The total global sentence is therefore 10 years less pre-trial custody of 1003 days. The Summers credit at 1.5:1 is therefore 1504 days. This leaves a sentence to be served, by Mr. Richard in penitentiary, of 2146 days or approximately 5 years and 11 months.
[62] In addition, there will be an order that the offender provide the authorities with samples of his bodily substances, suitable for DNA analysis and inclusion in the National DNA Data Bank.
[63] There will also be an order under s. 109 of the Code, prohibiting the offender from having in his possession any firearms, ammunition, explosive substances, or any other items mentioned in that section for the balance of his life.
[64] There will be an order that Mr. Richard will have no contact, directly or indirectly, with Mr. Fannon, members of Mr. Fannon’s immediate family, and any witnesses who testified at his trial. The names of these individuals will be provided to the registrar by the Crown.
[65] The victim surcharge is waived.
Released: February 12, 2025