R. v. Bukardikwa, 2023 ONCJ 403

CITATION: R. v. Bukardikwa, 2023 ONCJ 403 DATE: September 22, 2023 Information No. 22 – G13973 ONTARIO COURT OF JUSTICE (at Ottawa, Ontario) B E T W E E N: HIS MAJESTY THE KING and ABUBAKAR BUKARDIKWA Reasons for Sentence[1] Mr. M. Geigen-Miller for the Crown Mr. A. Brass for Mr. Bukardikwa NADEL, J.: Introduction [1] These are my reasons for the sentences that I am about to impose on Abubakar Bukardikwa. After a trial, Mr. Bukardikwa wasconvicted of all 12 counts on the information. The Crown proceeded by indictment throughout. In due course I shall conditionally staysome of the counts pursuant to R. v.

Kienapple, (SCC), [1975] 1 S.C.R 729. [2] On behalf of Mr. Bukardikwa, Mr. Brass submits that I should impose a sentence of five to six years, less appropriate credit forpre-sentence custody. A copy of Mr. Brass’ written submissions on behalf of Mr. Bukardikwa was filed as Exhibit A. [3] The Crown submits that a fit sentence should total nine years less appropriate credit for pre-sentence custody, and other requiredancillary orders. A copy of the Crown’s written submissions was filed as Exhibit B. [4] Mr. Bukardikwa was born on November 2, 2003. On April 4, 2022 he was not quite 18½ years old.

The Facts of the Offences [5] All of the convictions arise out of a shooting. On April 4, 2022 at about 4:30 p.m. the victim, Jason Lamarche, (Lamarche),drove into the parking lot shared by a number of apartment buildings on Heron Road, in Ottawa, Ontario. Mr.

Bukardikwa lived in anapartment in one of those buildings. [6] Lamarche was returning to the parking lot that he had left moments earlier having dropped off his co-worker, Patrick Labelle,(Labelle). [7] Lamarche returned because Labelle called to say that he needed help because he was involved in an argument with a man wholived in that complex of apartments. [8] Lamarche hurried back, got out of his car, and walked quickly around its front moving in the direction of Labelle and the manthat Labelle was in a verbal confrontation with. That man had been chumming around with Mr.

Bukardikwa that afternoon. [9] As Lamarche got to the front of his car Mr. Bukardikwa pulled out a semi-automatic handgun and fired at least seven shots atLamarche. The shooting was captured by a video camera. By my very rough estimate Mr. Bukardikwa was 10 metres away fromLamarche when he began shooting at him. [10] Lamarche was struck in his left leg by three of the shots. Fortunately, all three wounds were not life-threatening. [11] Lamarche sustained a grazing but non-penetrating wound to the outside aspect of his left thigh above his knee. He suffered athrough and through wound to his left calf.

He also sustained a grazing wound across the back of his left heel. This was inflicted whenone of the bullets pierced the heavy leather of his work boots. [12] While these injuries were not catastrophic, Lamarche testified that they resulted in a permanent limp and loss of leg strength. A

copy of Lamarche’s hospital records was exhibited at trial as were three photographs of his wounds taken by his wife. [13] In his concise victim impact statement, he said: “All I want to say is my life will never be the same. Physically emotionally mentally, I am and will forever be scarred as well as my wifeand my daughter who can’t seem to live a day without mentioning it. I have to live life in a new way now that I never had to before andit’s painful.” [14] As a result of shooting Lamarche with a semi-automatic handgun and as a result of a YCJA release order in force at the time ofthe shooting, Mr.

Bukardikwa was charged with and found guilty of the following offences:[2] Count 1: careless use of the firearm, s. 86(3); Count 2: pointing a handgun at Lamarche, s. 87(2); Count 3: weapon dangerous, s. 88(2); Count 4: carrying a concealed weapon, s. 90(2); Count 5: possession of the handgun without a licence, s. 91(3); Count 6: possession of loaded handgun without a licence, s. 95 (2); Count 7: discharging a handgun with intent to endanger life, s. 244(2); Count 8: committing an assault with a weapon, 267(a); Count 9: committing an aggravated assault, 268(2); Count10: possessing a handgun while prohibited by s. 515 & s. 117.01(3); Count 11: possessing a handgun while prohibited by a bail order, s. 145(5)(a); Count 12: possession under of property, (the gun), obtained by crime, s. 355(b).

R. v. Kienapple, (SCC), [1975] 1 S.C.R 729 [15] In R. v. Adjei, 2013 ONCA 512, at paragraphs [69] through [72], Justice Watt reviewed the Kienapple principle as discussed inR. v. Prince, [1986] 2 S.C.R. 48. [16] The Crown and the defence are not agreed about what conditional stays ought to be imposed. The defence submits that all “use”counts, and all “assault” counts are subsumed by count 7. As Justice Watt noted in Adjei, where one act ends, and another begins can besubtle. .[17] I have come to the Kienapple conclusions noted in the following table: Count Criminal Code

Section Kienapple disposition1 86(3) Use firearm in a careless manner Conditional stay 2 87(2) Point firearm Conditional stay 3 88(2) Possess weapon for a dangerous purpose A sentence concurrent to count7, as the offence was completeprior to the shooting. 4 90(2) Carry concealed weapon A sentence concurrent to count7, as the offence was completeprior to the shooting.

5 91(3) Possess firearm without authorization Conditional stay 6 95(2) Possess loaded prohibited/restricted firearm A sentence concurrent to count 7, as the offence was complete prior to the shooting. 7 244(2) Discharge firearm with intent to wound, maim, disfigure or endanger life A sentence to be pronounced subsequently in these reasons. 8 276(2) Assault with a weapon Conditional stay 9 268(2) Aggravated assault A sentence concurrent to count 7. While the mens rea of the 2 counts is sufficiently similar, the actus reus of each is distinct. 10 117.01(3) Possess firearm while prohibited A sentence, consecutive to count 7, to be pronounced subsequently in these reasons. 11 145(5)(

a) Fail to comply with release order Conditional stay 12 355(

b) Possess property obtained by crime A sentence concurrent to count 7, as the offence was complete prior to the shooting. Mr. Bukardikwa’s Biography and Background [18] According to the pre-sentence report, Abubakar Bukardikwa was born on November 2, 2003 in Borno State, in northeast Nigeria. He was born into what appears to have been an economically comfortable family. He was sent to boarding school in Nigeria. He came to Canada to be a student in the “Canada Home Stay International Program” in January of 2018 when he was 14. He lived with a number of host families until he graduated from high school.

After his graduation he began to live with his older brother who, by 2012, was already in Ottawa. [19] Mr. Bukardikwa has had little communication with his brother since his arrest on April 8, 2022. He has not had any contact with his parents for a similar period. [20] According to the PSR, Mr. Bukardikwa stated that after graduating from high school he was accepted into a law programme at Carleton University, but no confirmation was provided by him or obtained by the pre-sentence reporter.

Equally, none of the independent references offered by him, including his brother, were able to be contacted by the pre-sentence reporter. [21] Notwithstanding, the Crown does not dispute any of the facts contained in the PSR. Mr. Geigen-Miller submitted that the PSR paints an obviously incomplete picture but that the court rarely is provided with total information. [22] In the Crown’s view, it is noteworthy that Mr. Bukardikwa was born and raised in Nigeria by a family that had sufficient means to send both sons to Canada to study abroad.

Additionally, he has sufficient mental acuity to graduate from high school and he aspires to post-secondary education. [23] The Crown’s point being that his is not a case where one would say that he had a tough life. There is no evidence of that in the PSR; no evidence of any particular disadvantage. Indeed, his own account of his life in Nigeria was that it was an acceptable upbringing as that account is described in the PSR. [24] To the contrary, Mr.

Brass submitted that his client told him that he did not provide the author of the PSR with the following information: that his client witnessed atrocities in Nigeria and that he was aware of and witnessed serious civil unrest and criminal

conduct while a young person in Nigeria. As Mr. Brass put it, “He came from a rough neighbourhood, that being Nigeria, so he’s had that in his background.” [25] He further submitted, based upon his client’s statements to him about these experiences and knowledge, that his client’s actions and moral culpability are mitigated as a result. Analogizing to Gladue jurisprudence, respectfully, this submission is insufficient to “tie in some way to the particular offender and offence.” Immigration Status/Consequences [26] Mr. Geigen-Miller made inquiries of the Canada Border Services Agency respecting Mr. Bukardikwa.

He shared the information that he received from the CBSA with Mr. Brass, and the Crown made the following submissions without contest or objection from the defence. [27] Mr. Bukardikwa has no status in Canada so neither the fact of these convictions nor the extent of any sentences imposed upon him as a result of these convictions will have any impact on his immigration status in Canada. [28] Because Mr. Bukardikwa overstayed his student visa he was unlawfully in Canada and subject to removal from Canada before he committed these crimes.

He was subject to a one year ban before seeking to return to Canada after any removal of him for overstaying his student visa. By the mere fact of being convicted he will also be subject to removal, (as he already was), but because of now being convicted he is subject to a lifetime prohibition from returning to Canada, after his removal. Defence Counsel’s Submissions [29] Mr. Brass submitted that the defence relies upon its written submissions, filed as Exhibit A. In augmentation of those submissions Mr.

Brass made the following further submissions. [30] It is conceded that a penitentiary sentence is required to achieve fitness. [31] Against that sentence due allowance for pre-sentence custody must be credited. As of the date of these sentencing submissions, Mr. Bukardikwa’s “dead-time” was 391 days. At 1:5 to 1, without any augmentation or other mitigation of that pre-sentence custody, that amounts to 586 days, or 1.6 years. [3] However, another 38 actual days will be served by Mr. Bukardikwa before he is sentenced on September 22, 2023. That totals 429 actual days served.

Without any augmentation or other mitigation credit, those 429 days of pre- sentence custody grossed up at 1.5 to 1 equals a pre-sentence custody credit of 644 days or 1.76 years. [32] Mr. Brass seeks a substantial mitigating Duncan credit for the harsh pre-sentence custody environments due to: • Institutional lockdowns; • Covid-19 fears; and, • due to the harsh conditions that existed, irrespective of Covid-19, at the Ottawa-Carlton Detention Centre, as referenced in his written submissions [4] . [33] While Mr.

Brass concedes that a specific or arithmetic credit is not how Duncan should be applied, he contends that a substantial mitigating and hence moderating effect against any sentences to be imposed is warranted. [34] Further, the material received from the three detention facilities at which Mr. Bukardikwa was detained highlights the harshness of Mr. Bukardikwa’s incarceration to this point in time. In counsel’s submission these have been difficult and challenging times for Mr. Bukardikwa and the documentation provided substantiates and particularizes those difficulties.

The defence seeks a significant Duncan credit for his client. [35] As to the total length of sentence, Mr. Brass, in his oral submissions urged that the court should look at the range of five to seven years given “the issues that are in Mr. Bukardikwa’s life”. Counsel stressed that a range is merely that and stressed that a sentence must be tailored to the circumstances of the individual being sentenced. [36] Both Mr. Brass and Mr. Geigen-Miller noted that Mr. Bukardikwa is young and that that is a circumstance that must be assessed and weighed in achieving a fit sentence. Further, this will be Mr.

Bukardikwa’s first adult sentence and his first penitentiary length sentence. [37] As noted earlier, what was absent from the PSR and what he has asked Mr. Brass to advise the court about is that while he had a good and supportive of family in Nigeria, he personally witnessed torture, kidnapping, riots and violence in the street, so he has had exposure to negative factors that “do play a role in any individual’s psyche” according to Mr. Brass. Further, Mr. Brass urged that he has academic potential, and he wishes to pursue university level studies. Moreover, Mr.

Brass said that his client told him that he had done volunteer work in the community [5] but counsel said that it has been difficult to find individuals to support these submissions.

Still, counsel submitted that he has had contact with his client’s older brother who told counsel that he will continue to be supportive of his younger sibling. [38] Counsel urged the court to take the critical blend of general deterrence, specific deterrence and rehabilitation into account and submitted that the sentencing range being advocated for does just that, since sending a young man to the penitentiary will subject him to a difficult and harsh experience.

[39] Counsel submitted that in arriving at a fit sentence, the question of totality must be considered so that proportionality is not lostsight of and so that the sanction imposed will not be crushing, despite the very serious crimes that his client has committed. [40] In Mr. Brass’ submission many of the cases that the Crown referenced during its submissions can be distinguished on their facts. Most significantly, the very long sentences said by the Crown to be comparables generally have a factual mix of guns and drugs and thatis an admixture completely missing in this case. [41] Mr. Brass characterized Mr.

Bukardikwa as being at the cusp of his (adult) life. His youth is what distinguishes him from manyof the cases that the Crown relied upon, cases where the offender was older or where the offender had a lengthy prior record. [42] Moreover, in the defence’s submission, Mr. Bukardikwa was alone in Canada without parental guidance. Counsel urged that R.v. Q. B., (ON CA), [2003] O.J. No. 354 (C.A.) applies and should guide the court. 36 Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth.

In my view, the trial judge erred in principle infocusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his firstadult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarelybe determined solely by the objectives of denunciation and general deterrence.

Where, as here, the offender has not previously been topenitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve therelevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant todeter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of thesentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault. [43] While Mr.

Brass submits that offences with weapons are anathema to the community, the critical message required by thissentencing can be delivered by a fit balance of general and specific deterrence properly moderated due to Mr. Bukardikwa’s prospects forrehabilitation particularly because of his age and lack of any prior adult record. S. 726 [44] Mr. Bukardikwa declined to make any statement. Mr. Brass said that he had taken instructions from his client and that Mr.Bukardikwa was content to rely upon his counsel’s submissions.

Bukardikwa’s YCJA Record [45] At the time of this shooting Bukardikwa had no prior youth or adult record. The shooting occurred on April 4, 2022, at a timewhen no findings of guilt or dispositions of any sort had been rendered against Bukardikwa. [46] On November 24, 2022 at Thunder Bay, Ontario, as a youth, Bukardikwa was found guilty of simple possession of a

Schedule 1substance contrary to s. 4(1) of the CDSA. His disposition was 12 months on probation. [47] I found Bukardikwa guilty of the charges arising out of his shooting of Lamarche on April 14, 2023. [48] At that time he was facing a number of other charges in Thunder Bay and was on a release on those charges. [49] After a trial in Youth Court in Thunder Bay, Bukardikwa was found guilty of one count of forcible confinement and one count ofassault level one, on May 4, 2023. All of the other charges were dismissed.

As a result of those two youth convictions, he wassentenced to a six-month custody and supervision order. He received credit for 66 real days and a further 54 days in custody to befollowed by 27 days of community supervision.[6] That sentence was satisfied on August 15, 2023. [50] While these youth court matters were not prior findings of guilt within the meaning of the Coke principle, they do speak to Mr.Bukardikwa’s capacity for rehabilitation, at least to some extent. The Crown conceded, indeed stressed, that Bukardikwa was a firstoffender when he shot Lamarche.

Nonetheless, the Crown submitted, and I agree, that the fact of his prior charges as a youth should notbe ignored or discounted merely as a result of the order in which his other convictions were imposed. [51] Despite Bukardikwa’s age, those other matters make weight on his prospects for rehabilitation, given his subsequent behaviourin shooting Lamarche while on a Youth Court release from Thunder Bay. The Fundamental Purpose of and the Principles of Sentencing [52] The fundament purpose of and the principles of sentencing have been codified in the Criminal Code.

Those sections have beencopied into thousands of judgments. It serves little useful purpose for me to engage in another repetition or recapitulation of thoseprovisions. Rather than doing so I shall simply refer to the discussion of that fundamental purpose and of those principles of sentencingas contained in R. v. Houen, [2019] O.J. No. 3140, (OCJ), a decision of Mr.

Justice David Harris. [53] At paragraphs [10] through [28] inclusive, Judge Harris provides a detailed and concise review of the fundamental purpose ofsentencing and the principles applicable in achieving that fundamental purpose and I incorporate that discussion herein by reference to it. [54] The fundamental principle of sentencing is found in s. 718.1. That

section was interpreted by Justice Doherty in R. v. Hamilton, (ON CA), [2004] O.J. No. 3252 (C.A.) as follows: 90 The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposedby Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm

to the community occasioned by the offence. … [55] The maximum punishment for discharging a firearm with intent to wound, maim, disfigure or endanger life is 14 years. Numerous aggravating features of this shooting were identified in Mr. Geigen-Miller’s submissions. They include the facts that: • Mr.

Bukardikwa was subject to an order forbidding him to possess a hand-gun; • the handgun that he possessed was loaded; • he fired that gun in a public space risking harm to by-standers; • he fired that gun multiple times; • he hit Lamarche with three bullets; • it was merely a matter of chance that Lamarche’s injuries were not worse. [56] Justice Doherty went on in Hamilton to explain that: 91 The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

Periods of Pre-sentence Incarceration Served [57] As noted earlier, by September 22, 2023, when these sentences will be imposed, Mr. Bukardikwa will have served a total of 429 actual days of custody referrable to these crimes. That number grossed up at 1.5 to 1 equals the equivalent of 644 days, exclusive of his YCJA sentences detailed above at paragraph [49]. [58] I have already related Mr.

Brass’ submissions on the substantial mitigating effect that the defence is advocating for with respect to Duncan credit. “ Duncan ” Credit [7] [59] The sentences for the Lamarche shooting will be pronounced and imposed on September 22, 2023. By that date Mr. Bukardikwa will have been detained for a total of 429 actual days referable to those crime. He is entitled “ Summers ” credit [8] at the rate of 1.5:1 for each of those days, resulting in a credit for pre-sentence custody of 644 days. That is the equivalent of 1.764 years.

Rounding that up to 1.8 years, he has a pre-sentence custody credit of one year and 9.6 months already served against any sentences to be imposed upon him. [60] The defence seeks a greater degree of mitigation by either increasing that credit or, alternatively, by obtaining the mitigating effect sought by a reduction in the total sentences to be imposed with the normal Summers credit applied to that reduced/mitigated sentence or sentences. [61] Mr. Brass obtained details about Bukardikwa’s detention at various facilities following his arrest on April 8, 2022.

As an example, he was incarcerated between November 29, 2022 to December 6, 2022, and between April 4, 2023 and April 6, 2023 and on May 3 rd and 4 th of 2023 at the Thunder Bay Jail. He was triple bunked on five of these dates. Similarly, he was detained at the Thunder Bay Correctional Centre from December 3, 2022 until April 4, 2023. During that time there was one period of institutional lockdown for 11 days due to Covid-19 from January 2, 2023 to January 13, 2023.

Otherwise Bukardikwa was entitled to the full complement of privileges due to any inmate during that period. [62] In my view these 16 days do not amount to the kind of harsh pre-sentence custody that merits any substantial concern any more than, for example, my grossing up the extent of his pre-sentence custody to the next integer. [63] The majority of his pre-trial detention occurred at the Ottawa-Carleton Detention Centre. [9] Details of the ranges he was housed on and the lockdown limitations he was subject to were exhibited in a letter filed at the sentencing hearing.

That letter states that Bukardikwa was subject to lockdowns of various lengths on 106 days during his detention there. [64] 24 of those lockdowns were for the whole day. The balance of the lockdowns was for portions of the day. On a cumulative basis, I have considered and weighed all of the conditions outlined in the three exhibited letters filed, and I have taken that information into account in arriving at the sentences that I have crafted.

Duncan Credit Redux [65] The source of this sentence-mitigation factor was footnoted earlier but I am repeating it here for ease of reference. 6 … We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps

during his presentence incarceration. [66] In R. v. Bristol, [2021] ONCA 599 at paragraph [1], the Court of Appeal held that specific evidence of direct impact on aclaimant for Duncan credit arising from lockdowns was not necessarily required. 11 We are entitled to look at these records since we are now charged with determining an appropriate sentence and, in doing so, we mustconsider whether a Duncan credit is appropriate. While the respondent argues that the appellant did not lead any evidence of directimpact on him arising from the lockdowns, we are of the view that some impact is self-evident.

Lockdowns involve lack of showers andloss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is notrequired to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter duringpretrial custody and which are accounted for by the Summers credit. [67] How to assess and give effect to the sentence-mitigating effect of this hard time pre-sentence custody is discussed by JusticeDoherty in R. v. Marshall, 2021 ONCA 344 , [2021] O.J.

No. 2757 at paragraphs [50] through [53]. 50 Before I move to Marshall #2, I propose to make some observations about the calculation of the "Duncan" credit. A "Duncan" creditis given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 "Summers"credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers,at paras. 28-29. The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictionsassociated with pretrial custody.

The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a goodexample of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279. (emphasis added) 51 It is also important to appreciate and maintain the clear distinction between the "Summers" credit and the "Duncan" credit. The"Summers" credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence.

The"Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused haseffectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to thinkof the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of someaggravating factor, such as the seriousness of the offence: R. v.

Colt, 2015 BCCA 190. (emphasis added) 52 The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken intoaccount in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigatingfactor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence fromwhich the "Summers" credit will be deducted.

Because the "Duncan" credit is one of the mitigating factors to be taken into account,it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravatingfactors. (emphasis added) 53 Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarilyinappropriate, it may skew the calculation of the ultimate sentence.

By quantifying the "Duncan" credit, only one of presumably severalrelevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the sameway as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimatesentence imposed: R. v. J.B. (2004), (ON CA), 187 O.A.C. 307 (C.A.).

Arguably, that is what happened in this case,where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be theappropriate sentence but for pretrial custody. [68] In R. v. Avansi, 2023 ONCA 547, the Court, once again, wrote about Duncan credit and how to assess it. [7] … Duncan was a brief endorsement wherein this court denied enhanced presentence credit.

In the course of its endorsement,the panel noted, “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apartfrom and beyond the 1.5 credit referred to in s. 719(3.1).” From this modest statement, a body of jurisprudence has developed whereinso-called Duncan credits have morphed into a mathematical exercise akin to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 credits. [8] In R. v. Marshall, 2021 ONCA 344, this court clarified that Duncan credits are not a deduction from the otherwise appropriatesentence.

Instead, they are a factor to be considered in determining the proper sentence where particularly punitive presentenceincarceration conditions are extant. Because a Duncan credit is a mitigating factor, it cannot justify the imposition of an inappropriatesentence, having regard to all of the relevant mitigating or aggravating factors: Marshall, at para. 52. The Crown’s Submissions. [69] Mr. Geigen-Miller began his submissions by noting the “shear gravity” of the offences before the court. The shooting was notprovoked by Lamarche and from Lamarche’s point of view it was unprovoked. [70] The events show that Mr.

Bukardikwa was prepared to bring an illegal loaded handgun into the public parking lot of a housingcomplex. That public parking lot had the potential for the presence of innocent people and bystanders. Bringing a loaded weapon intothe public domain is part of the factual matrix that contributes to the seriousness of the offence. [71] Not only was Mr. Bukardikwa prepared to bring that very dangerous weapon into that public place, but he did so while hespecifically prohibited by a court ordered condition not to possess any weapons.

[72] Worse yet, he then discharged the gun at least seven times with three of his firings striking Lamarche and causing him serious injuries. [73] While Labelle did engage with Bukardikwa’s chum, it was just a verbal argument with some posturing and some machismo going on, but it remained a verbal altercation and for no logical reason, for no reasonable reason Mr. Bukardikwa suddenly turned it into a very serious shooting. [74] It is by shear luck, chance, or possibly poor marksmanship that Bukardikwa didn’t kill Lamarche or paralyse him or cause the need for an amputation or other more serious injuries.

Equally, it was a matter of chance or luck that no one else was injured by the many shots that Mr. Bukardikwa fired. This was a dense housing area and there could have been tenants or visitors popping out of a building, car or around a corner at any moment. [75] So, this was an incredibly dangerous and blameworthy act under review for sanctioning. [76] The Crown, emphasizes and acknowledges that Mr. Bukardikwa is a youthful first offender and that is going to quite properly be on the court’s mind, as it has a place of prominence in the court’s deliberations on sentence.

This is a that factor deserves weight; but the shear seriousness of the crimes do as well. [77] In the Crown’s submission the seriousness of this shooting is an aspect of the matter that qualifies how the Priest principle, the principle applicable to the sentencing of first offenders, applies to crimes like this. [78] In the Crown’s submission, very serious crimes of personal violence are not overwhelmed by the “ Priest ” principle.

Denunciation and deterrence must still play a considerably emphasized place in the sanctioning process, although individual deterrence and rehabilitation are admittedly still relevant considerations. [79] Despite those later considerations, this crime involves so much danger, so much actual harm and so much willingness to commit that harm – in other words so much moral blameworthiness – that this sentence not only is required to be at least five years in prison but it must be a significant penitentiary sentence. [80] As reiterated by the Crown, the actual harm caused and the actual degree of moral blameworthiness for that harm, is so high that it calls for a severe but proportionate sanction. [81] Noting that Mr.

Bukardikwa had aspirations of going to university, the Crown observed that he was a young man with options and choices, and he must be held accountable for the choices that he made in a way that is fair and proportionate and that gives effect to the proper balancing of all the sentencing principles. [82] The Crown spoke at some length to the Duncan issue.

The conclusion that he urged was that while lockdowns engendered greater restrictions on liberty than would otherwise be the case, efforts were made in the Ottawa-Carlton Detention Centre to limit any restrictions on showers, as physical cleanliness is a real affront to personal dignity. [83] While Mr. Bukardikwa was a first offender, the outstanding charges that resulted in convictions and his commission of these crimes while under a bail order are matters that are relevant to his background, character and personal circumstances. [84] With those comments having been made Mr.

Geigen-Miller rhetorically asked, what should be done given this extremely serious daylight shooting in a housing complex, where a person was both aimed at and hit three times – a person who suffered injuries with some long-term consequences? [85] In the Crown’s submission crimes like this terrorize a community and are extremely troublesome, so much so that they must, subject to proportionality and other sentencing principles, be denounced in the strongest terms. [86] The Crown answered its rhetorical question by referring to and urging the application of R. v. Bellissimo , 2009 ONCA 49 its progeny.

In the Crown’s submission Mr. Bukardikwa’s facts and hence his sentencing falls squarely within the four corners of that precedent. [10] [87] Mr. Geigen-Miller noted that the facts in Bellissimo were more serious than those at bar so that he was not advocating for a similar sentence. Nonetheless, Mr. Bukardikwa committed very serious offences by illegally possessing and then discharging a semi- automatic handgun in a very public place during which he aimed at and then hit Lamarche, causing him serious and permanent injuries. [88] In Bellissimo the sentencing judge imposed an 8 ½ year sentence after a trial.

The Court of Appeal increased it to 10 years. The age and any prior record of Bellissimo were not provided in the endorsement of the court. Nonetheless, it is a precedent that started a line of jurisprudence setting a range of sentencing that has been applied at both the trial level and, significantly, by the court of appeal on multiple occasions; viz. : • R. v. Bellissimo , 2009 ONA 49, at para. [3] • R. v. Jefferson , 2014 ONCA 434 , at para. [14] • R. v. Jarvis , 2022 ONCA 7 , at para. [6] • R. v.

Weeden , 2019 ONSC 773 , at para. [41] [89] At noted by the Crown, in Jefferson , a passenger is shot in the arm through a car window. That offender received 10 years. While the crown concedes that attempting to determine what facts are more or less serious can be a difficult exercise, that case

“certainly”, in his view, was no more serious than this one. Here we have multiple discharges and a person struck three times just afterhe gets out of his car. So, while the circumstances are different, this case comes within that precedent. [90] The Crown submits that one of the most useful decisions that shows the limits of the Bellissimo range is R. v. Dhaliwal, 2019ONCA 398. There the offender fired a bullet into the ceiling of a commercial premise: one discharge, into a ceiling and no injury. TheBellissimo range was applied at trial and the offender received seven years.

The Court of Appeal reduced the sentence to six.

In Mr.Geigen-Miller’s view, this is a very useful case since it was a single shot that was not aimed at a person, wasn’t fired with intent to hurt aperson, didn’t hurt a person and he still received a six year sentence. [91] While the Crown urged that ranges ought not to be applied mechanically the dangerous elements of the Bellissimo precedent areall here: an illegal possession of a prohibited or restricted weapon that is used in a public place with serious consequences to a personstruck by the use of that weapon. [92] What is significant about Bellissimo is that this was not just a Crown appeal in which the sentence was varied and increased.

What is significant is that the Court of Appeal made a comment that was broader. The Court established a range of sentence for this typeof offence that has been followed for many years.[11] In making this submission the Crown did not suggest that ranges cannot andshould not be departed from. Indeed, Mr.

Geigen-Miller expressly acknowledged that aggravating or mitigating circumstances not onlypermit but require doing so in appropriate cases on appropriate facts. [92] The Crown also advocated for a consecutive sentence to be imposed on the count of possession of that handgun while Mr.Bukardikwa was prohibited from doing so. While Mr.

Geigen-Miller acknowledged that the issue of whether a sentence is madeconsecutive or concurrent is within the discretion of a sentencing judge that is exercised judicially, he urged on the application of R. v.McCue, 2012 ONCA 773, at para. [22] that I make the sentence consecutive in this case. [93] This issue was addressed in a Crown appeal in R. v. Showbeg, 2023 ONCA 549. Showbeg was convicted of possession of aloaded prohibited firearm (s. 95) and two counts of breaching a weapons prohibition order (s. 117.01(1)).

After he was arrested, heunsuccessfully tried to discard a loaded firearm he had concealed in his pants. He was bound by two lifetime firearm prohibition ordersat that time. There the Court said: [5] Regarding the issue of concurrent sentences, the sentencing judge did not explain why he was departing from the general rulethat separate violations of prohibition orders require consecutive sentences to ensure firearm prohibition orders do not go unpunished. Asstated by this court in R. v.

Claros, 2019 ONCA 626, at para. 53: More importantly, the fact that two offences relating to the breach of a prohibition order occur in close succession, or even at the sametime, is not a basis for imposing concurrent sentences. The principle that such offences should be served consecutively is intended toensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished.

This principle alsorecognizes the fact that the breach of a prohibition order is different behaviour than the associate offences, engaging different socialinterests. [6] As an alternative to consecutive sentences, jurisprudence from this court has suggested that breaches of firearm prohibitions canbe taken into account as a significant aggravating factor when fixing the appropriate sentence on a firearm charge. In thesecircumstances, a concurrent sentence on a charge of breach of a prohibition order may be imposed: R. v. McCue, 2021 ONCA 273, atpara. 22.

However, in this case, the sentencing judge did not consider the breaches of the weapons prohibitions as aggravating factors inhis sentencing analysis. He simply imposed the sentences concurrently without providing any reasons for doing so. This was an error inprinciple. We order that the two s. 117.01(1) sentences be served consecutive to each other and the s. 95 sentence. [94] One final issue broached in the Crown’s submissions was how to determine the totality issue.

Should the Court add up separatesentences and see if they need moderation on the totality issue or should the court fix a fit total sentence and then apportion the sentenceswithin that fit total sentence? [95] In my view, while the approach to sentencing an offender for multiple offences varies among the provinces, (see R. v. Smith,2011 ONCA 564 , [2011] O.J. No, 3832 (C.A.)), in Ontario, R. v.

Jewell, (1995), (ON CA), 83 O.A.C. 81(C.A.) at paragraph [27], directs that a sentencing judge fix an appropriate global sentence first and then assign sentences for eachindividual offence and designate them concurrent or consecutive to fit within that global sentence. [96] The Crowns view was that there is a wide range of consecutive sentences for the illegal possession of a handgun contrary to aprohibition order.

In its view, that range can be as low as six months and as high as 2.5 years. [97] The Crown submitted a consecutive sentence at the low end of the range was appropriate as this was a first offence for this crimeand the prohibition was contained in a bail order and not as a result of a s. 110 or s. 109 prohibition order. [98] As for the aggravated assault, since this was an unprovoked attack upon a stranger, in the Crown’s submission, the bottom of thehighest of the three tiers identified by Justice Code in R. v. Tourville, 2011 ONSC 1677 , [2011] O.J.

No. 1245 (SCO), wasappropriate.[12] Even on a concurrent basis, I am of the view that the sentence sought by the Crown of three years is an inadequatesentence for this aggravated assault. [99] Mr. Geigen-Miller made the following submission on what a fit sentence on count 7, (discharging a firearm with intent towound, main or disfigure or endanger life) should be. [100] The Crown advocated for a sentence of 8.5 years on this count and submitted that this sentence is in the middle or low middle ofthe Bellissimo range, because of the mitigating factors available to Mr.

Bukardikwa, including and reflecting his youth and his status as afirst offender with no prior criminal record.

[101] In the Crown’s submission, a sentence of this length would be fit as it would give substantial weight to Mr. Bukardikwa’sprospects for rehabilitation. In the Crown’s submission, a sentence of this length gives credence to and applies the principle identified inQ.B. quoted above at paragraph [42]. [102] In properly assessing the Q.B. principle, {which is derived from R. v. Priest, (ON CA), [1996] O.J. No. 3369(C.A.)[13]}, the Crown noted that in both R. v. Brown, 2010 ONCA 745 and in R. v.

Thurairajah, 2008 ONCA 91 , [2008] O.J.No. 460 (C.A.), where the crimes at issue were ones of substantial violence, the moderating effect of the Priest and Q.B. principles arethemselves applied in a moderated fashion to achieve fitness. That is to say that in order to achieve a fit sentence in crimes of substantialviolence it is still necessary to impose a significant penalty. In essence, any shorter sentence for these offences will not reflect theirgravity. [103] The imposition of a sentence is an individualized exercise. Justice K. L. Campbell, at paragraph [46] of R. v. Hatimy, 2014ONSC 1586 , [2014] O.J.

No. 1154 (SCO), said that there are conflicting sentencing principles that need to be balanced andreconciled. [104] That is what Mr. Geigen-Miller submits that he has done in arriving at the Crown’s sentencing submissions. This was a veryserious shooting crime. Mr. Bukardikwa showed a shocking disregard for human life, exacerbated by the place where the shootingoccurred, the number of shots fired, the actual injuries suffered and the obvious foreseeability of those injuries.

All of that makes this avery serious crime both in its circumstances, in its moral blameworthiness and in its consequences. [105] In the Crown’s submission the sentence deserves to be in the middle of the range which deals fairly with the mitigatingcircumstances of Mr. Bukardikwa’s age and lack of any prior record. Given those mitigating features the sentence should not be higherthan the middle of that range. This gives palpable effect to Mr.

Bukardikwa’s mitigating circumstances and is a fit sentence on thatbasis. [106] Finally, the Crown noted that the prevalence of cases of gun violence in the community was an aggravating factor of thissentencing. In support of that submission, he filed statistics from the local police service in Ottawa that demonstrates that both gunpossession and shootings are a serious and growing problem in Ottawa. That is a factor to be considered on sentencing. [107] In

summary the Crown submitted that Mr. Bukardikwa is a young man who had opportunities and choices and the choice that hemade was to possess a highly dangerous and illegal loaded firearm and to draw it and to use it for no good or sufficient basis. It was awillingness to resort to potentially lethal force for no justifiable reason. [108] He is a young man who has the ability to turn his life around after this. This will be “a Canadian sentence” (sic). He is going tobe released while still in his twenties, no matter what the sentence is.

He will have a chance to turn his life around although probably notin Canada, albeit that will be up to the immigration authorities. Wherever that happens to be, it is important that the sentence to beimposed brings home to Mr. Bukardikwa the strongest possible disincentive to continue in that way. Discussion and Imposition of Sentence [109] There are several mitigating features that I must pay special attention to: • the necessity to moderate the total sentences on account of the Duncan credit that Mr.

Bukardikwa is entitled to; • a consideration of the principle of totality; • most significantly, the prospects for his rehabilitation given his age; and, • as this will be his first period of incarceration in the penitentiary, the restraining influence of R. v. Q.B..[14] [110] That said, the principles of deterrence and denunciation must also be realized by the sentence that I must craft. [111] Earlier in these reasons I noted and incorporated by reference to it a large swath of R. v. Houen, written by my colleague JusticeDavid Harris. I do so again.

In Houen Justice Harris said and I recite and apply these paragraphs of that decision: 52 Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating : The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. 53 Sentencing is not an exact science.

The determination of the sentence that is just and appropriate in a given case is "a highlyindividualized exercise that goes beyond a purely mathematical calculation." 54 General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of theother principles. 55 I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of [Mr.Bukardikwa] and yet, at the same time, one that is responsive to his unique circumstances. 56 I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here. [112] I have previously quoted Justice K.

L. Campbell’s comment at paragraph [46] of R. v. Hatimy, 2014 ONSC 1586 ,[2014] O.J. No. 1154 (SCO), that there are conflicting sentencing principles that need to be balanced and reconciled. I have attempted todo so in arriving at the following sentences, which have been discounted to provide both Duncan credit and Q.B. consideration.

[113] I shall recapitulate the table that I included earlier. In that table I shall announce the sentences to be imposed and note whether they are concurrent or consecutive. In arriving at my sentencing decisions, I candidly indicate that I am in substantial agreement with the submissions of Mr. Geigen-Miller, on behalf of the Crown . Nonetheless, I have slightly moderated the sentence to be imposed on Count 7 to give effect to the principle in Duncan . [114] To be clear, in effect, I have generally adopted Mr.

Geigen-Miller’s submissions, both written and oral, and I am indebted to him for their clarity, completeness and for their compelling content. [115] The imposition of a sentence is an indivizualized exercise. Every case presents both the opportunity and the obligation to attempt to reconcile the tension between conflicting principles. In every case that tension must be recalibrated to arrive at a fit sentence as required by s. 718.1. That is what I have attempted to do here. [15] I impose the following sentences on Abubakar Bukardikwa: Count Criminal Code

Section Kienapple disposition or Sentence Imposed 1 86(3) Use firearm in a careless manner A conditional stay 2 87(2) Point firearm A conditional stay 3 88(2) Possess weapon for a dangerous purpose A 1-year sentence, concurrent to count 7. 4 90(2) Carry concealed weapon A 1-year sentence, concurrent to count 7. 5 91(3) Possess firearm without authorization A conditional stay 6 95(2) Possess loaded prohibited/restricted firearm A 3-year sentence, concurrent to count 7. 7 244(2) Discharge firearm with intent to wound, maim, disfigure or endanger life A sentence of eight years and three months. 8 276(2) Assault with a weapon A conditional stay 9 268(2) Aggravated assault A five-year sentence concurrent to count 7. 10 117.01(3) Possess firearm while prohibited A 6-month sentence, consecutive to count 7. 11 145(5)(

a) Fail to comply with release order A conditional stay

12 355(

b) Possess property obtained by crime A 6-month sentence concurrentto count 7. [116] As detailed in paragraph [59], these sentences are being imposed on September 22, 2023. By that date Mr. Bukardikwa will have been detained for a total of 429 actual days referable to these crimes. He is entitled to “Summers” credit[16] at the rate of 1.5:1 for eachof those days, resulting in a credit for pre-sentence custody of 644 days. That is the equivalent of 1.764 years.

Rounding that up to 1.8years, he has a pre-sentence custody credit of one year and 9 months and 18 days already served against the sentence of eight years andthree months that I have imposed upon him on count 7. [117] In the result, I give Mr. Bukardikwa a time served credit on count 7 of one year and nine months and 18 days and hence sentenceI sentence him to six years and five months and 12 days on that count. In addition, I sentence Mr.

Bukardikwa to a 6-month sentence oncount 10, consecutive to the six years and five months and 12 days imposed on count 7. [118] I make primary designated DNA orders on counts 7, 8 and 9 that remain in effect until they are carried out. [119] Pursuant to s. 109 I order that for the time Mr.

Bukardikwa is in custody and for the 10 years that follow from the expiry of hiswarrant of committal he shall not possess any firearm, crossbow, restricted weapon, ammunition, or explosive substance and that for thebalance of his life he shall not possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, or prohibitedammunition. [120] Pursuant to s. 743.21 I order that Mr.

Bukardikwa shall be prohibited from communicating either directly or indirectly with JasonLamarche or Patrick Labelle during the custodial period of these sentences. [121] I waive the victim fine surcharges given the sentences that I have imposed. Dated at Ottawa this 22nd day of September, 2023 ​​​​​​​​​​_______________________ J.S. Nadel, (O.C.J.) 6 … We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can providemitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1).

In considering whether any enhanced credit should be given,the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In thiscase, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due tostaffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from thelocked down conditions.

Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative stepsduring his presentence incarceration. [10] R. v. Bellissimo, 2009 ONCA 49 , [2009] O.J. No.179 THE COURT …The Crown Sentence Appeal 3 The Crown argues that the totality of the sentences imposed is manifestly inadequate. The trial judge imposed sentences totalling five

years. He also gave the appellant credit for 3 1/2 years based on his pre-sentence incarceration. The effective sentence was 8 1/2 years.We agree that the range of sentence for these kinds of serious gun related offences is between seven and eleven years. 4 We see virtually no mitigating factors. The seriousness of these crimes is hard to overstate. The respondent fired several shots in therestaurant.

One significantly injured a victim, another caused a minor injury to a victim and a third narrowly missed killing a third victim. 5 General deterrence and denunciation must be given a paramount weight in sentencing for these kind of dangerous gun related charges.We think the sentence fails to give adequate weight to these factors. We think a proper sentence is ten years.

To achieve an effectivesentence of ten years, we will vary the sentence imposed on count 12 (possession weapon dangerous) from eighteen months consecutiveto three years consecutive resulting in a sentence of 6 1/2 years. 6 The appeal is allowed and the sentence is varied accordingly. [12] 27 . At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30 , 250 C.C.C. (3d) 277 (Ont.

C.A.)where an Aboriginal offender received a suspended sentence and three years’ probation on her guilty plea to aggravated assault. … 28 In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less aday. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where theaccused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), (ON CA), 175 C.C.C. (3d) 440 (Ont.

C.A.). … 30 At the high end of the range are cases where four to six years’ imprisonment have been imposed. These cases generally involverecidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of anyelements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v.Vickerson (2005), (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A). 10 The goal in every case is a fair, fit and principled sanction.

Proportionality is the organizing principle in reaching this goal. Unlikeother principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading "Fundamental principle"(s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence andthe degree of responsibility of the offender" (R. v. Friesen, 2020 SCC 9, at para. 30).

The principles of parity and individualization, whileimportant, are secondary principles. 11 Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parityand proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, whileconsistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, willassist courts in fixing on a proportionate sentence (para. 32).

Courts cannot arrive at a proportionate sentence based solely on firstprinciples, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases" (para. 33). 12 As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committedby the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53] Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, eachoffence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimesdemands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflectsthe gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58).