R. v. Fernandes, 2015 ONCJ 669

COURT FILE NO.: Newmarket Court File No. 14-04978 DATE: 2015-11-23 CITATION: R. v. Fernandes , 2015 ONCJ 669 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN — AND — ELKINGSTON ROOSEVELT FERNANDES Before Justice H.I. Chisvin REASONS FOR SENTENCE Released on November 23, 2015 A. Tierney................................................................................................................ for the Crown P.

Cooper............................................................................ for the accused Elkingston Fernandes CHISVIN J.: Overview [ 1 ] Elkingston Fernandes was charged with numerous offences arising out of an incident that occurred with the York Regional Police on July 8, 2014. Following the incident, he was arrested and held for a show-cause hearing. He was ultimately released on a recognizance with sureties. Numerous strict conditions were originally part of his release. Over time, some of the terms were relaxed on consent of the Crown. [ 2 ] On July 30, 2015, Mr.

Fernandes entered a plea of guilty to two counts; pointing a firearm (a pellet gun) at a police officer, contrary to section 87(2) of the Criminal Code , and to the offence of threatening death to a police office, contrary to

section 264.1(2) of the Code . [ 3 ] On consent of all parties, a finding of guilt was made on that date based on the facts set out on the face of the information. This was done to allow a pre-sentence report to be prepared, as well as further material to be prepared by counsel for purposes of sentencing. On October 26, 2015, further facts were placed before the Court and sentencing submissions made. [ 4 ] The facts are not particularly complex, and while I do not propose to set them all out here, I will set out a brief synopsis of the facts as agreed to by Mr. Fernandes. [ 5 ] On July 5, 2014, Mr.

Fernandes’ mother contacted the police because Mr. Fernandes was struggling with what were clearly mental health issues. Mr. Fernandes was initially arrested and then taken to a police station. There he was restrained because of his conduct. Notwithstanding the use of restraints, he ultimately smashed his head and was taken to the hospital. At the hospital, he was attended to by a physician who, notwithstanding the issues that he presented with, released him from the hospital. [ 6 ] The police, then, without laying any charges, took him home. Mr.

Fernandes came to believe, because of his mental health issues, that a police officer had caused his head injury. [ 7 ] On July 8, 2014, as a result of the deterioration in his mental health and his abuse of substances, Mr. Fernandes was again acting out. By this time, Mr. Fernandes was in possession of a pellet gun and was making threatening statements. His mother, a member

of York Regional Police, came home to find him in this state. As she was unable to deal with him, she contacted 911. The policeresponded. She left the home and advised the first officer on scene that her son was in possession of a pellet gun. [8] Mr. Fernandes, at this time, left the residence and pointed, what was a realistic looking pellet gun at the first officer whoarrived on scene. A police challenge was made. Mr. Fernandes made threats to cause death to a specific police officer (the second counthe pled guilty to). He then returned to the home. Other officers attended at the scene. Mr.

Fernandes fled out the back of the homewithout taking the pellet gun with him. He was ultimately arrested. [9] As I said, this is only a short synopsis of the facts presented. I do not propose to set out all of the facts, however, I wish it tobe clear that in reaching my decision as to what the appropriate sentence is to be, I have taken into account all facts presented and haveconsidered all factors as set out by counsel in the course of this matter, as well as the material filed. [10] In imposing the appropriate sentence on Mr.

Fernandes, I begin with the words of Doherty J. of the Court of Appeal in R. v.Hamilton, (ON CA), 2004 72 O.R. (3d) 1 (C.A.) at paragraph 85 where he says: Sentencing is a delicate case-specific exercise. There is seldom only one fit sentence. Fitness usually describes a range of appropriatesentencing responses. . . . And again at paragraph 87: Sentencing is a very human process.

Most attempts to describe the proper judicial approach to sentencing are as close to the actualprocess as a paint-by-numbers landscape is to the real thing. . .the fixing of a fit sentence is the product of the combined effects of thecircumstances of the specific offence with the unique attributes of the specific offender. [11] These comments were reiterated by LaForme J. in R. v. R.B., 2013 ONCA 36, at paragraph 18. In approaching my assessmentof this matter, I recognize these comments by the Court of Appeal, as well as the specific principles of sentencing that apply to theoffences to which Mr.

Fernandes entered pleas of guilty, as well as the principles of sentencing as set out in the Criminal Code. [12] Counsel for Mr. Fernandes submitted that the appropriate sentence, having regard to his client’s unique circumstances, is oneof a conditional discharge and probation for two years, including significant community service work. [13] The Crown, in her submissions, stated that the appropriate sentence for these types of offences would normally be a custodialsentence of one year, plus probation. She then indicated that given the work that Mr.

Fernandes has done since his arrest, that a 90-dayintermittent sentence plus probation would be appropriate. As she continued through her submissions, she then said if I was consideringa non-custodial sentence, then a fine or a suspended sentence would be appropriate. In any case, a conditional discharge would not beappropriate, she stated. [14] I begin my consideration of this matter with Mr. Fernandes as an individual. He is, at the time of sentencing, 20 years old. Hewas born in India, and immigrated to Canada with his entire family in 2004. Over time, his parents separated and his father returned toIndia.

He remained in Canada with his mother and three sisters. [15] Mr. Fernandes presents to the Court with no criminal record, although as part of the factual circumstances that led up to thisoffence, I was made aware of the police contact on July 5, 2014. [16] A pre-sentence report was ordered, and is Exhibit 1 in this proceeding. It sets out extensively the extremely difficult factualbackground that Mr. Fernandes grew up in, primarily because of the conduct of his father. As I said, Mr. Fernandes lives with hismother and sisters.

His mother was the one who, for a number of years, raised both him and his sisters as a single parent. Mr.Fernandes’ father, who returned to India in 2006, was a brutally abusive individual to Mr. Fernandes, his siblings, and his mother. Hisfather apparently has continued to make threats towards his family and this information has been provided to both the police andCanadian Border Services. Despite being gone since 2006, it is clear that Mr.

Fernandes’ father has had a significant negative impact inhis life well beyond the time period in which he was in the country. [17] The information in the pre-sentence report sets out in great detail Mr. Fernandes’ misuse of substances. Mr. Fernandes himselfadmitted he began drinking alcohol when he was 13 years of age. He started using marijuana at an even earlier age. There were manyoccasions when he would use both alcohol and drugs before going to school when he was attending high school. [18] In elementary school, Mr. Fernandes was diagnosed with ADHD.

He was given medication for this, which he discontinueduse of because of its side effects. Throughout his schooling, Mr. Fernandes was provided with educational support by the schoolsystem. His history of school was not without incident, having been caught participating in a theft and being suspended at differenttimes for drug issues. [19] Mr. Fernandes has great aptitude with automobile mechanics. After leaving high school, he attended post-secondary schooltraining for auto mechanics and currently is in a registered apprentice program. Counsel provided letters in his material indicating bothMr.

Fernandes’ success at school and as an apprentice. In fact, Mr. Fernandes has been so successful that not only is he working a full-time shift, but the automobile dealership where he is working, a company known for its high-end vehicles, has asked him to participate intheir specific company program for mechanics. Mr. Fernandes has, indeed, attended two of these programs thus far and has passed both. [20] As I stated earlier, Mr. Fernandes started using alcohol and other substances at a very early age.

There is no question that theuse of these substances was a significant factor in the offence of July 8, 2014, and has had a significant impact on Mr. Fernandes’ mentalhealth. While in high school, Mr. Fernandes attended and completed a 90-day residential substance abuse program. That program

clearly was not a success. A condition of his release in July, 2014 by his mother, who is one of the sureties, was that he abstain of thesubstances. [21] Mr. Fernandes initially resisted this but ultimately agreed to do so. Within two days of his release, Mr. Fernandes attended aYMCA youth substance abuse program. He has thus far succeeded in the program. Indeed, his counsellor provided a letter to theprobation officer writing the pre-sentence report to this effect. Letters of attendance at the program were also included in the materialprovided by counsel.

Similarly, a letter of attendance at another program run through the Addiction Services of York Region, wasprovided to the Court. Mr. Fernandes is also receiving help from COTA Heath, and a letter to this end was provided. Finally, a letter andcertificate of successful completion of an anger management program through the John Howard Society was given to the Court. [22] As stated, Mr. Fernandes has a history of mental health issues. This includes ADHD, a generalized anxiety disorder, asubstance abuse disorder in addition to the learning disability. Mr.

Fernandes’ completed a number of assessments, including a forensicassessment and a neurodevelopment and educational assessment. Since his arrest, Mr. Fernandes has been prescribed medication, whichhas been successful in treating these issues. [23] Finally, I note that Mr. Fernandes has tremendous family support. Not only was his mother his surety, but his three sistershave also been acting as sureties. All have been actively engaged with him in addressing his needs in ensuring that he continues as apositive contributing member of the community. Mr.

Fernandes has successfully completed counselling programs and continues with avariety of other programs. He has been a success both in his school proper and perhaps more importantly, has shown tremendousaptitude and success in the working world. Not only does he have a job that he likes, he is liked at the job and shows the ability toadvance there. Mr. Fernandes has been able to work on his substance abuse issues and has shown a significant ability to abstain. [24] It is clear from the letter provided by his sister Eleanor that “…he is leaving the past behind him and is looking forward to agreat future”.

What is the appropriate sentence to be imposed? [25] The imposition of an appropriate sentence requires the Court to consider a number of factors, some of which are inherentlycontradictory. The sentence imposed in this matter must keep Mr. Fernandes moving in a positive way forward, and yet recognize thedangers that firearms pose in the community, whether imitation or real, and deter others from acting as Mr. Fernandes did. [26] While deterrence, both general and specific, are always important principles, it is also important to recognize the factualcircumstances here.

This includes the recognition that mental health issues played a significant role in this offence. The reality is, if thecommunity had a robust mental health process, Mr. Fernandes would likely have been dealt with outside the criminal justice system andmay never have acted out in the way he did. Thus, this offence in some ways speaks to the failure of that system and the unfortunatereality that police officers are often left with picking up the pieces.

Thus, it could be said that the situation, including what happened a few days prior to the July 8th incident, could be viewed as a mental health intervention gone bad. [27] So what, then, is the appropriate range of sentence? Having regard to the principles of

section 718 and following of theCriminal Code, having regard to the fact that Mr. Fernandes is a youthful first offender, and bearing in mind the submissions of theCrown, I am satisfied that the appropriate sentence in this matter would be one that involves probation. The question that needs to beasked is whether it should be a suspended sentence with probation or if the circumstances of this matter make a conditional dischargeand probation appropriate. [28] I turn, then, to consider whether the imposition of a conditional discharge is appropriate.

The Criminal Code requires thatbefore a conditional discharge can be imposed, two criteria must be met. They are that it must be in the best interests of the accused toimpose a conditional discharge, and not contrary to the public interest. [29] What do these two phrases mean? There is not a tremendous amount of appellate law dealing with the meaning of these twophrases. However, there is the decision from the Newfoundland and Labrador Court of Appeal in R. v.

Edmunds, 2012 NLCA 26, whichprovides significant guidance. [30] In Edmunds, the Court points out that the best interests of an accused means a discharge could be imposed where a person isusually without a prior discharge or conviction, is otherwise of good character, and requires neither personal deterrence or rehabilitation. [31] The Court in Edmunds then notes at paragraph 20: . . . a sentencing judge may take judicial notice of the fact that a criminal conviction will have a negative impact on a person's future,whether related to employment opportunities, travel, and so forth. [32] The Court should not quickly ignore the significance of employment for a person and the strong positive effect it can have onan individual.

In the case of Public Service Employee Relations Act (Alberta), (SCC), [1987] 1 S.C.R. 313 at page 386,in the words of the late Chief Justice Dickson, at paragraph 19 state: Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, asimportantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worthand emotional well-being. [33] Applying this principle in this matter, Mr. Fernandes is not only employed, but is doing exceedingly well at his employment.

The employment provides him not only with a great deal of personal gratitude, but it allows him to provide for his future and to assist hismother and his sisters. He has clearly a real aptitude for what he is doing, and taking this away from him, or limiting his ability tocontinue on this path, would only be detrimental. [34] The Newfoundland Court of Appeal in Edmunds, supra, also, when considering what is in the best interests of accused, noted

at paragraph 21 that a different approach needs to be taken with respect to those who have mental health issues: The Crown further submitted that the need for specific deterrence in this case was not given sufficient weight by the sentencing judge asMr. Edmunds will continue to be employed with the lockup and the opportunity to engage in similar conduct will arise again. Thisposition is not persuasive. As Green J.A., as he was then, noted in R. v. Peters, 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184: [18] Deterrence and punishment assume less importance in cases of mentally ill offenders. See R. v.

Hynes (1991), (NL CA), 89 Nfld. & P.E.I.R. 316 (Nfld. C.A.). In R. v. Robinson (1974), (ON CA), 19 C.C.C. (2d) 193 (Ont. C.A.)the Court emphasized that in cases where offenders commit crimes while they are out of touch with reality due to mental illness, specificdeterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses thatcontribute to the commission of a crime will not usually be deterred by the punishment of others.

As well, severe punishment is lessappropriate in cases of persons with such mental illnesses since it would be disproportionate to the degree of responsibility of theoffender. This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principlein s. 718.1 of the Criminal Code. [19] Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort thatwould establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence.

Thefocus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, ratherthan on punishment. This is especially so where lengthy prison terms are often regarded as counterproductive, even in cases notinvolving the mentally afflicted. See R. v. Gladue (1999), (SCC), 133 C.C.C. (3d) 385 (S.C.C.) at p. 408. [35] As in Edmunds, Mr. Fernandes cannot be said to have been “out of touch with reality” when committing this offence, but hismental health state at the time was clearly impacting his perception of the world around him.

His addictions were clearly overpoweringhim. His belief that he was becoming his father or just like his father was having a significant impact on his world. [36] Since his arrest, and clearly with the assistance of his family, Mr. Fernandes has received help and support in an effort to dealwith the problems and to really conquer them. While like anyone else with addiction problems, the road is long, there is no reason tobelieve that Mr. Fernandes will not be successful on that road that he has undertaken without specific court intervention to this point. [37] Given Mr.

Fernandes’ mental state at the time, and the treatment that is already in place, to quote again from Edmunds atparagraph 22: “Where, as here, the offender has a lesser moral blameworthiness, the usefulness and appropriateness of specificdeterrence is much reduced and the Court may properly place greater emphasis on rehabilitation.” [38] I turn now to consider what “not contrary to the public interest” means with respect to this matter. [39] Again, the facts of the matter before this court, and the plea of guilty as entered by Mr. Fernandes are importantconsiderations.

This matter is very much but a collision between the mental health needs of an individual, a lack of appropriateresources, and the effects this policy has had on the criminal justice system. [40] So again, I turn to paragraphs 25-26 in Edmunds where the Court held: - not contrary to the public interest 25 This condition gives rise to a consideration of the need for general deterrence. The Crown submits, and I agree, that a breach oftrust by a public officer, certainly by one in a position of authority over a vulnerable group of individuals, is a very serious offence that isnot to be taken lightly.

The Crown submits that this supports the contention that the sentencing judge failed to give adequate weight tothe need for general deterrence. The problem with the Crown's position is, again, that it runs contrary to the principles expressed inPeters. Persons suffering from a mental illness which contributes to their commission of crimes are less likely to be deterred by theimposition of a harsher sentence on another individual. 26 Further, "most people understand that the mentally ill require treatment and supervision, not punishment": see R. v. Valiquette(1990), (QC CA), 60 C.C.C. (3d) 325 (Q.C.C.A.) at 331.

In my view, the public's confidence in the effectiveenforcement of the criminal law will not be undermined where the Mental Health Court emphasizes rehabilitation over deterrence in suchcircumstances. [41] Clearly, I am satisfied that Mr. Fernandes falls within the category of individuals for whom a conditional discharge would notbe contrary to the public interest. [42] In reaching the conclusion I do, I do not ignore the fact that Mr.

Fernandes had the pellet gun, that it was pointed at a policeofficer, and that a great deal of community resources were expended on that date to ensure the safety of everyone, including the policeofficers, the public, and Mr. Fernandes himself. [43] The reality of this matter however was what occurred here was more a mental health intervention, where on a prior day, theefforts of that intervention had not gone well.

Thus, it seems to me that reparations for the harm done here, having regard to thespecifics of this particular matter, can be dealt with by means of community service work within the terms of a probation order. [44] Thus, in the end, I conclude in the circumstances, that an appropriate sentence here is a conditional discharge and a period oftwo years on the following terms and conditions. In addition to the statutory terms, Mr.

Fernandes will report in person to a probationofficer immediately, and after that, at all times and places as directed by the probation officer or any person authorized by the probationofficer to assist in the supervision. He will cooperate with his probation officer, he will sign any release necessary to permit theprobation officer to monitor his compliance and provide proof of compliance with any conditions as ordered by his probation officer. Hewill not possess any weapons as defined by the Criminal Code.

[ 45 ] He will attend and actively participate in all assessment counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for any reasons deemed appropriate. He will sign any release of information forms as will enable the probation officer to monitor his attendance and completion of any assessment counselling or rehabilitative programs and he will provide proof of his attendance and the completion of any assessment counselling or rehabilitative programs as directed.

He will perform 50 hours of community service work at a rate scheduled to be directed by the probation officer but must be completed no later than the end of the 12 th month of this order. [ 46 ] Although I imposed only 50 hours of community service work, I appreciate that counsel for Mr. Fernandes suggested a far greater number of hours. While this might, on the face, seem to be appropriate, I have to balance what Mr. Fernandes needs to do over the next two years. Over the probation period, it is important that Mr. Fernandes continue with his counselling and to continue with his employment.

These are the two primary matters that he must deal with, and if he does, I am satisfied that with the addition of the community service work I put into place, that the community will be protected and well served. [ 47 ] I am open to counsel for any further suggestions with respect to terms or conditions of this probation order. ________________________ Justice H.I. Chisvin Released: November 23, 2015