R. v. Ambrose, 2016 ONCJ 396

CITATION: R. v. Ambrose, 2016 ONCJ 396 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Everton Ambrose Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision Released June 29, 2016 Mr. R. Thomson…………………………………………………………………..for the Crown Mr. P. Beach ………..…………………………………………………for Mr. Everton Ambrose Paciocco J. I. Introduction [1] I found Mr. Everton Ambrose guilty after trial of 10 indictable firearms related charges as well as one count of breach ofprobation for failing to keep the peace, contrary to subsection 733.1.

The 10 firearm charges consist of one charge of handling a firearmin a careless manner, contrary to subsection 86(3); two counts of pointing a firearm, contrary to subsection 87(2); one count of possessinga firearm for a dangerous purpose, committed against subsection 88(2); one count of carrying a concealed weapon, contrary to subsection90(2); one count of occupying a motor vehicle, in violation of subsection 94(2); and four counts of possessing a firearm, contrary toseparate prohibition orders, contrary to subsection 117.01(3). [2] All of these findings of guilt arise from the same incident.

On November 27, 2014, Mr. Ambrose took a concealed firearm, asilver pistol, and then pointed it at a group of men he encountered in a restaurant. He chased two of them out of the restaurant, againpointing the weapon as they fled down the street. He gave up the chase and entered a motor vehicle, carrying the firearm. He thenbragged about the incident in Twitter messages found on his computer. [3] This is my sentencing decision. I will not, however, be sentencing Mr.

Ambrose for his Count 1 conviction of handling thefirearm in a careless manner. [4] This is because the features that make the handling of the firearm careless – his act of concealment, then brandishing andpointing the firearm, and its possession by him inside of a vehicle, are all the subject of charges in the other counts. If I punish Mr.Ambrose for careless handling and for these other counts he will unfairly be punished twice for the same conduct. The Crown agreesthat this would violate the principles in R. v. Kienapple (SCC), [1975] 1 S.C.R. 729.

I am therefore, at the outset, stayingCount 1. [5] The principles of sentencing that must be applied to the other charges are not in contest. [6] The fundamental principle of sentencing, found in

section 718.1, requires that the sentence I impose must be proportionate to thegravity of this offence, and Mr. Ambrose’s degree of responsibility. The character of the offence and the degree of responsibility isdetermined by identifying the aggravating circumstances – those things that worsen either the offence or the degree of responsibility, aswell as mitigating considerations – those things that lessen the gravity of the offence or the amount of blame that can fairly be attributedto the offender. A fit sentence is then identified by determining the objectives of sentencing in

section 718 that apply and warrantpriority, given the circumstances, and by then selecting an appropriate sentencing tool to use, bearing in mind sentencing principles and

precedents that are meant to ensure that the penalty is fair and purposeful. [ 7 ] The Crown contends that a fit punishment for an “unrepentant” offender such as Mr. Ambrose, convicted of gun crimes of this ilk, is an “exemplary” sentence of 6 years’ incarceration, minus time served. Mr. Thomson supports this sentence by urging that gun violence is on the rise in Ottawa, and a message must be sent. He contends that both Parliament and judicial precedents reflect a “rising of the tide” that calls for higher sentences than were once imposed. [ 8 ] Mr.

Beach calls the Crown’s position “extravagant.” He says that a measured sentence, in light of relevant case law, is 30 months. Since Mr. Ambrose had already spent eighteen months in custody by the time of the sentencing hearing, if credited at 1.5:1 he had effectively served 27 months. Since then he has served an additional 43 days, equal to 65 more days. His total pre-trial credit on this basis would be 29 months and 5 days. The 30 months sentence sought by Mr. Beach would therefore be all but served. [ 9 ] Mr.

Beach asks for still further credit for presentence custody on the theory that conditions at the Regional Detention Centre during Mr. Ambrose’s long and unavoidable confinement warrant additional credit. He submits that I am authorized in law to exceed the 1.5:1 ratio established in section 719 (3.1). If I accede to Mr. Beach’s requests, Mr. Ambrose would be released today. [ 10 ] I am not bound to choose between the sentences proposed by the Crown and Mr. Beach. In determining what Mr. Ambrose’s sentence will be, I will begin with the gravity or seriousness of the offences, and Mr.

Ambrose’s degree of responsibility. II. The Gravity of the Offence and Mr. Ambrose’s Degree of Responsibility [ 11 ] The charges Mr. Ambrose was convicted of are inherently serious. [ 12 ] First, he went to a restaurant with a concealed firearm on his person, creating an obvious danger to the public. He carried the weapon as a tool, in case he needed the violent authority the gun provided him. This is evident from Mr. Ambrose’s Twitter posts: “BRUH P-DIP MET JET LI TODAYYYY.” “ASK PDIP ABOUT JET LI ….

HE WILL TELL U THAT BITCH IS NO JOKE.” “NIGGAS GETN CAUGHT SLIPPIN AT RESTAURANTS,” “Went to eat… Thank God i had my banger on me.” I therefore reject Mr. Beach’s contention that the crime was spontaneous. The precise circumstances that led to the gun being pulled and pointed appear to have been unplanned, but they were not unexpected. Mr. Ambrose had his gun for just such purposes. [ 13 ] Second, Mr. Ambrose used the firearm to intimidate others by pointing it at two persons, and then took the firearm into a motor vehicle.

He did all of this while subject to four separate prohibition orders, and while on probation to keep the peace. Technically, none of these factors are “aggravating” per se , since they are elements of the offences for which he has been found guilty, but they are at the centre of any characterization of how grave his crimes were. [ 14 ] What aggravates these already grave offences is that the firearm was pointed in a public place, frequented by a number of people. Not surprisingly, the patrons and staff fled in a panic.

His actions not only disrupted the public peace, they terrified those who were present, causing them to fear for their wellbeing if not their lives. Although no victim impact statements were filed, the witnesses who testified before me were still afraid, over a year later. [ 15 ] These patrons, and those on the street, are victims of Mr. Ambrose’s crime, in a real sense. Although he did not point the gun at them, they are not simply “collateral damage,” as suggested. The damage caused to these people was an inevitable consequence of Mr.

Ambrose’s choice to use the gun in a public place to intimidate the two men he meant to intimidate, and then chase. [ 16 ] Mr. Ambrose’s conduct is further aggravated by the fact that it did not end when those he pointed the weapon at fled. Those men were chased, and the act of pointing the firearm, repeated. This aggravated the threat inherent in the offences that Mr. Ambrose committed. [ 17 ] The refusal of those two men to cooperate with the police and the Crown does not lessen the crime.

The law is intent on protecting the public at large, including those who prefer to deal with street violence on their own. [ 18 ] The only feature of the way in which the crimes occurred that tempers the seriousness of what happened is the inability of the Crown to prove that the gun was loaded, and that the gun was not fired. These things do not mitigate the offences per se . Had the gun proved to have been loaded, or fired, additional charges would have been in order and a harsher sentencing range would have been required. [ 19 ] So the active firearms offences committed by Mr.

Ambrose are serious, albeit not the most grave of handgun offences imaginable. [ 20 ] Moreover, Mr. Ambrose’s breaches against the administration of justice in defying the firearms prohibitions are serious crimes. Even though firearms prohibitions are imposed for a wide range of offences, they are meant to keep the most dangerous weapons from those who have demonstrated a risk to society through the offences they have committed. This prophylactic function is defeated if those orders are disregarded.

Such disregard not only demonstrates disrespect for court orders, it endangers the public. [ 21 ] The same can be said of his breach of probation charge. Mr. Ambrose did not breach the peace and fail to be of good behaviour through some minor crime or by disturbing members of the public. He did so by committing serious firearms offences. [ 22 ] As for the other side of the sentencing scale, Mr. Ambrose’s degree of responsibility is also imposing. [ 23 ] First, while he is a young man – in his mid-twenties – Mr. Ambrose is far from being a first offender.

He has a criminal record dating back to his youth, with an unbroken string of offences, including a robbery, 6 assault-based convictions that cover the gamut of simple assaults, an assault with a weapon, two assaults causing bodily harm, and an aggravated assault committed as a youth. He also has

4 threatening convictions. It is not mitigating that the last four assault-based offences and the most recent threatening offences occurredin a domestic context. The point is that today I am required to sentence a violent man, for violent offences. [24] Second, Mr. Ambrose has demonstrated, through his conduct here, contempt for court orders.

As indicated, he violated fourseparate firearms prohibitions, and he breached his probation in the fashion described, within days of his release from jail on an earlierstring of offences, including an assault conviction and one for breaching his probation. [25] His disrespect for court orders is not out of character. Mr. Ambrose has shown continual disrespect for lawful authority. Hisrecord contains 6 breach charges, including breaches of undertaking and probation, as well as a re-committal into custody after breachingterms of release.

His convictions total 29, achieved in an unbroken string of offences, temporarily interrupted only by intervening periodsof incarceration. [26] The Crown asks me to amplify my impression of his relevant bad character, and find that Mr. Ambrose’s brazen disrespect forthe law and his criminal lifestyle is aggravated by the antisocial values he embraces and promotes in the rap music he produces. To thatend, without objection, the Crown played two You-tube music videos featuring songs performed in whole or in part by Mr. Ambrose,with the links taken from his Facebook page.

These songs are vulgar, sexist and offensive. Any right-minded person, even if attracted torap music, would recognize this. The songs treat women as sexual objects, depict drug consumption and manufacturing, and include athreat made by Mr. Ambrose, punctuated with the waving of an imposing knife, that he would “stab you for nothing.” The songs are alsoreplete with references to the use of guns. [27] To be sure, I found Mr. Ambrose’s music to be highly offensive. I am not, however, going to use these videos to make sentencingfindings. In my view, this odious material is prejudicial, adding more heat than light.

The hedonism, gangsterism, violence and misogynydepicted are found in song and amateur film. It would not be fair, without more, to treat these images as depicting actual crimes, or toinfer that a performer who sings about an activity, actually engages in it, or even intends to promote the behaviour modeled. As Mr.Beach points out, artistic choices can be driven by commercial ambition rather than personal creed. Using the term extremely loosely,“art” may imitate life, but art is not a stable platform for judging the character of the artist. [28] The finding I am making that Mr.

Ambrose does, indeed, hold anti-social attitudes about the offences he committed that must beaddressed in the sentence I impose, is not be based in any measure on these videos. It is based on what Mr. Ambrose did on November27, 2014, and what he has done in the past, and on the fact that he bragged in his electronic postings after the event about what he haddone as if it was a laudable act of bravado, rather than repugnant criminal behaviour. [29] Ultimately, one struggles to find a single mitigating factor that Mr. Ambrose can call into aid in assessing his degree ofresponsibility.

He does not receive the benefit of mitigation for remorse. He has shown none. He was convicted after trial and has notsignalled any regret for his conduct. As I say, his degree of responsibility is imposing. [30] What sentencing objectives have to be featured given the factors I have identified? III. The Sentencing Objectives [31] It is evident based on the authority that given the nature of the firearms offences, the sentence imposed must reflect denunciationand general deterrence. This was the view of the Ontario Court of Appeal where firearms offences are committed in a public place.

Thosesentencing principles are to be a prime consideration: R. v. Danvers (2005), (ON CA), 199 C.C.C. (3d) 490 at paras.76-78 (Ont. C.A.). In R. v. Brown 2010 ONCA 745 , [2010] O.J. No. 4707 the Ontario Court of Appeal reaffirmed generally, atpara 14, that sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of thepublic. [32] I understand Mr.

Ambrose’s protests, made when I asked him whether he had anything to say before sentencing, that he shouldnot be made an example of because no-one is paying attention to his case, neither court-watchers nor the media. To be sure, judicialmessages and lessons are less apt to resonate in an empty, ignored courtroom than when they feature on the news.

There are three pointsthat need to be made, in response. [33] First, as indicated, binding law obliges sentencing judges to consider these factors in a firearms case, whether a judge believesthe sentence will have a positive effect or not. [34] Second, general deterrence and denunciation are pursued, not by a single sentence, but by the pattern of sentencing establishedover time in similar cases. The law would not be fair if it gave harsher sentences only if people appeared to be watching. [35] And third, the principle of proportionality in

section 718 ensures that no-one can be punished more harshly than they deserve,solely to send messages to others. Although it is appropriate to impose a firm sentence in order to deter and denounce conduct, thatsentence cannot be harsher than is fair given the gravity of the offence and the degree of responsibility of the offender. The sentence Mr.Ambrose receives will be structured to promote deterrence for others, and to denounce this kind of conduct, but it will be imposedbecause he earned it and deserves it. [36] Given Mr. Ambrose’s record and attitude, the sentence imposed must also be directed at him.

The sentence must be significantenough to show how offended his community is by his conduct and his associated attitude, and it must be harsh enough to try to get themessage through to him that this kind of conduct is not worth it because the costs are worse than the gains. [37] The remaining sentencing goals, the rehabilitative and restorative objectives, cannot be entirely disregarded, but cannot drive thesentence in this case. Mr. Ambrose has been in custody, or on probation or mandatory supervision, for all but a year or so since 2008, yetshows no interest in reform.

His profile of violating court orders makes rehabilitative probation pointless, unless and until Mr. Ambroseshows signs that he wants to reform. While it is too soon to give up on Mr. Ambrose, the main focus warranted here is public protection

through general deterrence, specific deterrence, and denunciation. IV. A Fit Sentence [38] As indicated, the Crown contends that an “exemplary sentence” of 6 years is required. Mr. Thomson urges that a 4 yearconcurrent sentence is needed on the active firearm offences, and he treats the fact that Mr. Ambrose breached his probation when hecommitted these crimes as an aggravating factor contributing to that 4 year punishment. Mr.

Thomson urges that a further 2 yearsconsecutive incarceration is required for the 4 breaches of firearm prohibitions, 6 months per offence. [39] To support the call for an exemplary sentence, Mr. Thomson contends that gun crime is an increasing problem in Ottawa, callingfor enhanced denunciation and more powerful deterrence. In an effort to verify this he called evidence, without objection, from theinvestigating officer, Det.

Sabourin - a member of the “Guns and Gangs” unit of the Ottawa Police Service - and he included newspaperarticles about local gun crime in his book of sentencing materials. [40] Frankly, the evidence of Det. Sabourin was unimpressive. What was offered was opinion evidence from a non-expert source,invested in the prosecution of Mr. Ambrose as investigating officer, about the increase in gun crime. Det. Sabourin offered home grownstatistics gathered within the guns and gangs unit relating only to shootings. He offered statistics on shootings for 2014, 2015 and so farin 2016, even though Mr.

Ambrose is not charged with a shooting. No instruction was offered on gun crimes of the kind Mr. Ambrose isbeing punished for. Det. Sabourin also purveyed the bald opinion that these statistics verify an increase in gun crime, even though hecould not particularize the number of shootings in prior years. He had no statistics on the kinds of offences Mr. Ambrose is to besentenced for. Without evidence proving Mr. Ambrose’s gang affiliations, or the connection between this event and drugs, the evidencehe offered suggested, prejudicially, that the increase in gun crime is linked to gangs and drugs.

A trial judge has a gatekeeper role toperform when it comes to expert evidence, even in the absence of objection. There is strong reason to believe that this evidence wouldnot have been admitted after a proper expert evidence voir dire, and even had it somehow made the grade, I would not have acted on it. [41] The newspaper articles are similarly useless.

They constitute hearsay information, and while a properly qualified expert witnessmay have been able to make use of them in helping found an opinion, this is not the kind of material that can simply be filed and actedupon as proof of the facts the articles claim. [42] In saying this I am not suggesting that gun crimes do not pose grave dangers to any community or that judicial notice cannot betaken that a crime is prevalent in an area. This is a simple matter of judicial notice. That is why in R. v. Brown 2010 ONCA 745, [2010] O.J.

No. 4707 the Ontario Court of Appeal commented at para 14 that “[h]andguns are an all too prevalent menace inthe Greater Toronto Area,” a sentiment repeated in many decisions, including for urban areas generally: R.v S.(I.) 2011 ONSC 3303, [2011] O.J. No. 3052 (Ont. S.C.J.). Nor do I doubt that members of the community, including this community, have hadenough of this kind of obnoxious, irresponsible and potentially lethal conduct. I will take all of this into account, as inherent in the natureof the offences, but, on this record, I will not treat the crimes Mr.

Ambrose is about to be sentenced for as requiring aggravated treatmentbecause an uptick in incidents calls out for more aggressive efforts at denunciation and general deterrence. That has not been established. [43] Mr. Thomson’s related point is that the sentencing tariff for gun crimes is increasing, making unhelpful the pre-2010 decisionsrelied upon by Mr.

Beach to support his request for a 30 month sentence.[1] Parliament has pursued a policy for some firearm offencesof creating minimum sentences, and while some such sentencing provisions have experienced constitutional difficulty, this has occurredbecause the mandatory minimum sentence provisions were too broad, not because the effort to increase denunciation and deterrence isimproper. It is also true that, as illustrated in the Crown’s case book, there are an increasing number of cases where firm sentences,ranging between 6 and 9 years,[2] have recently been imposed for a range of incidents involving firearms.

Judges have noticed the trendto increasingly harsh sentences, at least in some contexts, such as in R. v. Reid 2013 ONSC 2342 , [2013] O.J. No. 5929 (Ont.S.C.J.), where Justice Quigley observed, at para 61, that there has been “an acceleration in the range of sentence accorded to multiplefirearm possession offences.” [44] I share the view of Justice Bloomfield however, that it is not tremendously helpful in identifying a particular sentence to acceptthat the range of appropriate sentences for firearm offences across the board “have been raised by some unquantifiable amount”: R. v.Reid [2009] O.J. No. 5205 (Ont.

C.J.) at para. 22. It is enough to look for comparable, current cases and to note, as she did, that “thejurisprudence… is replete with forceful acknowledgements of the seriousness of [firearms] crimes and the need for significant sentencesto emphasize the acute need for denunciation and deterrence in such cases.” As put by Justice Campbell, “such offences must be metwith custodial sentences that are proportional to the gravity of the crime, and which appropriately stress [those objectives]:” R. v. Ellis2013 ONSC 3092 , [2013] O.J.

No. 2409. [45] It is difficult to secure clear guidance from the case law because of the complex intersection of firearms offences, and thevarying ways in which such offences are committed by a wide range of offenders. None of the cases presented to me track the facts andcircumstances. What I can say, however, is that the 6 year sentence sought by the Crown is, in my view, too long.

The cases the Crownhas relied upon invariably involved loaded handguns, and were either committed by gun crime recidivists[3] or in circumstances ofanticipated shootings.[4] For all that can be said about the aggravating context of Mr. Ambrose’s crimes, and there is much to be said,there is no evidence that this gun was loaded, he has no prior firearms convictions, and there is no basis for inferring that this incidentwas planned to be a shooting. [46] At the same time, I am persuaded that the 30 month overall sentence identified by Mr.

Beach is too low, given all of theaggravating circumstances of this case, even in light of the principles of restraint that I must consider. Had Mr. Ambrose not been underfour firearm prohibitions at the time that range would have commended itself, even with this record of violence and his anti-socialattitude. [47] Yet Mr. Ambrose has violated four firearm prohibition orders. I agree with Mr. Thomson that while it is permissible to sentencesuch offences concurrently (R. v. Chambers [2013] O.J. No. 5116 (Ont. C.A.) it is preferable to do so consecutively.

These firearmprohibition orders are imposed on offenders that have already demonstrated their danger, for the purpose of protecting the public, and

breach of a prohibition is a different delict than the firearms offence. They are meant to have teeth, not to have their associated sentencesmerge with the substantive offence: R. v. Reid, 2013 ONSC 2342 , [2013] O.J. No. 5929 (Ont. S.C.J.). The case law doesprovide a useful guide to the appropriate sentencing range, which is generally 6 months to 2 years: R. v. Reid, [2013] supra at para. 90;R. v. Johnson 2013 ONCA 177.

It would not be consistent with the principle of totality, however, simply to multiply the number ofprohibitions breached by some factor within the range, and to then add time for the probation breach. Where there are multiple breaches,as here, a court must, in my view, consider the sentence that is needed to denounce the incorrigibility involved and deter the brazendisregard for this particularly important kind of court order, always being mindful of the fit of the overall sentence the offender isreceiving. [48] I am therefore persuaded that the fit sentence for Mr. Ambrose is 48 months in prison.

The proper sentence for the active firearmoffences, and the breach of probation, is an entry level penitentiary sentence, and 30 months concurrent for each offence would be theproper number. The fit sentence for the 4 prohibition breaches is eighteen months to be served concurrently to each other, butconsecutive to the 30 month sentence just described. [49] In my view this sentence does not offend the jump principle, even considering that Mr. Ambrose has not served a sentence of thisilk before.

These sentences are proportionate to the relative jump in the seriousness of the offences he has committed this time around,and with his increasingly disturbing criminal record. V. How much Pre-Sentence Credit is to be given? [50] As indicated, Mr. Ambrose has spent 18 months in jail. It is agreed that he is entitled to 1.5:1 credit, for a total of 27 months. Mr.Beach is seeking an additional period given the conditions at the Ottawa Detention Centre. [51] At first blush, this request appears to grate against the will of Parliament.

Section 719(3.1) provides that the “maximum” credit ajudge is permitted to give for pre-sentence custody is one and one-half days for each day spent. In a powerful decision, R. v. Doyle 2015ONCJ 492, Justice Melvyn Green has recognized that in cases of “particularly harsh treatment,” additional credit can be given forproblems connected not with the quantity of presentence custody, but its quality, and that this can be done without a Charter application.He artfully stitched together passages from R. v.

Summers 2014 SCC 26 , [2014] 1 S.C.R. 575, and the general principles fromR. v Nasogaluak 2010 SCC 6 , [2010] 1 S.C.R. 206 to make an imposing case that sentencing judges have this authority. [52] Mr. Doyle was a diabetic offender whose medical condition was not well managed in jail, particularly given the challengespresented by multiple lockdowns in the jail. Justice Green factored this in as an additional mitigating factor in quantifying the globalsentence before giving the usual presentence custody credit of 1.5:1. [53] In R. v. Bedward 2016 ONSC 939 (Ont. S.C.J.) Justice O’Marra recognized that Mr.

Bedward had been in lockdown for 225days of his 26 months of pretrial custody by giving him an additional 3 months of credit for his presentence custody, which is what Mr.Beach seeks here. [54] Without deciding that I would follow this line of authority, it has much to commend it. I am not persuaded on the factual recordbefore me, however, that Mr. Ambrose has been subjected to “particularly harsh treatment.” His claim is not based on any personalhardship related to ill physical or mental health. It is based entirely on a letter from Mr.

Steven Ashdown of the Ministry of CommunitySafety and Correctional Services filed on consent that lists the occasions when Mr. Ambrose was subject to lock down, and days whenhe did not receive fresh air. It shows that Mr. Ambrose was present for a disconcerting number of lockdowns, typically caused by staffshortages. Sometimes these lockdowns were for the full day. Other times they were for a shift. The letter also confirms that he was triplebunked for approximately 35 days. [55] To be sure, the conditions at the Ottawa-Careleton Detention Centre are disturbing and require quick redress.

The informationprovided by Mr. Ambrose does not move me to grant additional credit for time served there for three reasons. [56] First, I have no evidence on the impact of these lockdowns. The information discloses that efforts were made during lockdown toaccommodate showers and phone calls, and less commonly, visitation. I have no detail. I simply do not have adequate information on thenature of the hardship Mr. Ambrose has endured. [57] Second, I have no comparator information to determine how prevalent such conditions are.

Although the law does not appear torequire that the conditions be exceptional, they must constitute “particularly harsh treatment,” which invites some relative appraisal. [58] Third, it is evident that Mr. Ambrose made his incarceration conditions harder on himself than they had to be. He wasdisciplined on five occasions during his incarceration, including for three assaults. [59] I will credit Mr. Ambrose for the time he has served at the usual rate of 1.5:1. VI. The Sentence [60] I am therefore sentencing Mr. Ambrose to a further 25 days in jail on each of counts 2-6 and 11, to be served concurrently.

Count2 will show pre-sentence credit at the rate described, amounted to 875 days, being 583 days of actual time served credited at 1.5:1. [61] I am sentencing Mr. Ambrose to 18 months on Counts 7-10, concurrent to one another but consecutive to the 25 days he hasremaining under the prior counts. [62] I am also imposing a mandatory lifetime firearms prohibition under Criminal Code

section 109.

[ 63 ] Finally, I am authorizing the taking of a DNA sample from Mr. Ambrose pursuant to

section 487.05 of the Criminal Code . Released June 29, 2016 ________________________________________ The Honourable Justice David M. Paciocco