) ) HER MAJESTY THE QUEEN – v. –, 2011 ONSC 3848

CITATION : R. v. Grier, 2011 ONSC 3848 COURT FILE NO.: 09-11428 DATE: 20100620 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ALLISTAIR GRIER Defendant ) ) ) ) ) ) ) ) M. Holme for the Crown G. Orr, Q.C. for the Defendant ) ) HEARD: June 20, 2011 REASONS ON SENTENCING BOSWELL J. i ntroduction: [ 1 ] Allistair Grier shot his brother Colin in the head on December 9, 2009. Fortunately, Colin suffered only a minor injury. The bullet never penetrated his skull. Instead it pierced the skin near the hairline on his forehead and exited the scalp near the back of his head.

The injury resolved with seven stitches at the local emergency room. [ 2 ] On June 16, 2011, a jury acquitted Allistair of attempted murder and of pointing a firearm at his brother. He was, however, convicted of the following charges: (

i) Assaulting his brother, causing bodily harm; (ii) Assaulting his sister-in-law, Jeanne Grier; (iii) Pointing a firearm at Jeanne Grier; (iv) Threatening Jeanne Grier with death; and, (

v) Using a weapon in the commission of an indictable offence. Background Facts: Circumstances of the Offences: [ 3 ] The events of December 9, 2009 put a shocking exclamation point on what has been a long simmering quarrel between the brothers Grier. I do not intend to belabour the unfortunate history of their dysfunctional relationship, but a brief discussion is necessary in order to put Allistair’s violently criminal actions into context. [ 4 ] Allistair is the older brother to Colin Grier by almost 3 years. Both are now in their forties. It seems they have never really been close.

Colin testified that during high school he was instructed by Allistair not to speak to him and, should they cross paths in the hallway, Colin was not to let on they were brothers. Colin viewed Allistair as the “black sheep” of the family. He was, and remains, loud, obnoxious and attention-seeking. [ 5 ] They went their separate ways after high school and, for the most part, did not keep in touch. They saw each other occasionally at family functions. Allistair may have been invited to Colin’s home 3 - 5 times in the last 13 years. They kept up on each other’s lives primarily through their mother.

[ 6 ] Events began to deteriorate in about 2004. Allistair moved back into their parents’ home. Initially it was intended to be for only several months, but instead it lasted several years. Initially Allistair appears to have been a help to his parents. Colin testified, however, that by the Fall of 2005, he was becoming disruptive and it began to strain their relationship. [ 7 ] In 2006 the health of both parents declined significantly. Their mother had problems with a hip that required surgery. She subsequently developed cancer which she eventually succumbed to in November 2008.

Their father began to exhibit increasingly clear signs of dementia. [ 8 ] The parents had reciprocating Wills, which at one time named Allistair as the executor. That all changed in 2005, when Colin was named as a replacement to Allistair as executor of each parent’s estate. In addition, Colin was named as the attorney over his father’s affairs by a power of attorney for property that took effect on his mother’s death. Colin sought to exercise his authority almost immediately after his mother’s death – requiring that Allistair move out of their father’s home. [ 9 ] Allistair was not keen to move out.

Although he did not testify at trial, it is readily apparent that Colin’s efforts to remove Allistair from their father’s home caused a great deal of bitterness. An agreement was nevertheless ultimately reached whereby Allistair would move out and be given $25,000 and their father’s Toyota Sienna. The money to pay him came from his father’s funds. [ 10 ] Allistair ultimately moved out towards the end of June 2009.

On June 29, 2009, Colin issued Allistair a cheque for $22,000, which represented the $25,000 less a $3,000 holdback as security Colin unilaterally imposed to ensure Allistair returned certain things he had apparently taken from their father’s home. The items purportedly taken were, as Colin admitted, not significant in value. The bitterness grew. [ 11 ] Almost immediately thereafter Colin and a third brother, Malcolm, took their father to Scotland. Their father paid. They didn’t invite Allistair because he is too loud, he’s argumentative and drinks too much.

Even more bitterness ensued – bitterness which boiled over on December 9, 2009. [ 12 ] At about 7:50 p.m. on December 9, Colin, Jeanne and Logan Grier were eating dinner at their split level home in Richmond Hill, Ontario. The doorbell rang. It was Allistair. He had a garbage bag in hand. He dropped it on the floor of the foyer and told Colin it was his stereo and that he’d come for his money and stuff. The front door of the home opens into a foyer from which there are stairs leading both downstairs and upstairs.

Without hesitation Allistair walked up the stairs to the main living area of the house, where the kitchen, dining room and living room are. He paced for a few moments at the top of the stairs and made further demands for his money and property. [ 13 ] While at the top of the stairs he pulled out a pistol. He turned and fired a warning shot at Colin, who remained standing in the foyer at the bottom of the stairs. The shot penetrated the wall about 12-18 inches from Colin’s head. Allistair proclaimed that the next shot would kill Colin.

He then rapidly descended the stairs, with the gun in his right hand and his left hand in a fist. When he got to the bottom of the stairs Colin reached out for both of his arms. Allistair’s momentum pushed Colin back and at the same time their arms and hands pushed upwards. It may have been that the gun was pointed at the ceiling at this time. Colin’s hand slipped off Allistair’s right hand, the gun came down and fired, striking Colin and injuring his scalp. [ 14 ] Colin yelled for Jeanne to call the police. She went for the phone in the kitchen.

Allistair bounded up the stairs, pushed a Christmas tree aside and pulled the phone out of the kitchen wall. He pulled Jeanne out of the kitchen by the arm and at gun point. He pushed her down the stairs and she exited the house. Allistair followed moments later, but not before turning and punching Colin in the mouth. [ 15 ] Logan, who was 11 at the time, witnessed the initial shot at his dad, then quickly headed to the back stairs which exit out of the kitchen on the other side of the house. He saw Allistair point the gun at his mother and pull her out of the kitchen.

He was otherwise unharmed. [ 16 ] Allistair fled the scene and Jeanne contacted the police from a neighbour’s phone. Circumstances of the Offender: [ 17 ] Allistair Grier is 48 years old. He is single and has no children. His life has, by and large, been unremarkable prior to the incidents that bring him before the court.

He is a licensed mechanic and has historically worked repairing automobiles – a calling he anticipates returning to when released from custody. [ 18 ] He has a minor criminal record: a conviction for mischief, which counsel agree dates to 1982 (though the record indicates 1986) and an over-80 conviction from 2002 for which he received a $600 fine and the mandatory 12 month driving prohibition. [ 19 ] Mr. Grier surrendered himself into police custody on or about December 11, 2009.

He has remained in custody since that time. [ 20 ] In direct submissions to the court, he expressed remorse for his actions on this occasion. Impact on the Victims [ 21 ] Colin Grier’s immediate injuries included two large wounds on his forehead and scalp. Each was about 6 cm long. They required 7 stitches to close. In addition, he had a fat lip from having been punched in the mouth. His physical injuries have long since healed. The stitches were removed a week after the incident. The area was very tender for several weeks after that.

He said he lost a fair amount of blood so early afternoon every day he would have to sit down and relax for a while until he got his energy back. This went on, he said, for 6-7 weeks. [ 22 ] I received and considered victim impact statements from each of Colin, Jeanne and Logan Grier. Not surprisingly, each has

been affected on psychological and emotional levels quite significantly. [ 23 ] Colin Grier states that he is always stressed now. His sleep is disturbed, he gets regular headaches, his productivity has lessened and he gets annoyed easily. He continually visualizes his wife fleeing the house in terror and his hands covered in blood. [ 24 ] Jeanne Grier states that she has had to deal with fear and frustration, anger and anxiety, sleep disturbances and stress. She feared for her life at the time of the incident and fears for it again now in anticipation of Mr. Grier’s release from custody.

She says that as a family they are now much more security conscious, perhaps even paranoid. [ 25 ] Logan Grier states that the crime has left him feeling insecure about his safety when he is alone – particularly when at home. He feels his home is no longer a safe place. He is afraid for himself as well as his parents. [ 26 ] Both Jeanne and Colin addressed the matter of restitution in their victim impact statements. Colin referenced the cost of installing a security system in the home with constant monitoring.

In addition, he and Jeanne both referenced necessary repairs to the bullet holes in the wall and closet, though those repairs have yet to be completed. Colin suggested that the cost of those repairs will be $1,100.00 though it is not clear where that figure came from. Legal Parameters: [ 27 ] The Criminal Code provides the following maximum sentences in respect of the charges Mr. Grier has been convicted of: (

i) For assaulting Colin Grier and causing him bodily harm, ten years imprisonment [1] , (ii) For assaulting Jeanne Grier, five years imprisonment [2] ; (iii) For pointing a weapon at Jeanne Grier, 5 years imprisonment [3] ; (iv) For threatening Jeanne Grier with death, five years imprisonment [4] ; and, (

v) For using a firearm in the commission of an indictable offence, fourteen years and a minimum of one year consecutive [5] . The Principles of Sentencing: [ 28 ]

Section 718 of the Criminal Code codifies the fundamental purposes of sentencing, long recognized by the common law. Those purposes include the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done . [ 29 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered. [ 30 ] There is no serious dispute between counsel that the most significant principles in play in this instance are denunciation and deterrence as well as separation of the offender from society. [ 31 ] With these general principles in mind, I turn to the positions of the parties.

Positions of Crown and Defence: [ 32 ] The Crown argues that the facts and circumstances of this case are very serious. They involve the use of a firearm to assault, threaten and injure. They involved terrorizing three individuals and threatening that all would be killed if the police were contacted.

The gun, in fact, has not been recovered and the victims remain extremely fearful for their safety. [ 33 ] The Crown submits that appropriate ranges for the convictions in this case are as follows: a penitentiary sentence of between 2 and 3 years for the assault causing bodily harm; another 6 to 9 months, consecutive, for the assault of Jeanne Grier; another 3-6 months, consecutive, for the pointing a firearm at Jeanne Grier; a further 3-6 months, consecutive, for the death threat against Jeanne Grier; and 18 months consecutive for the use of a firearm in the commission of an offence. [ 34 ] Mr.

Grier has just over a year and a half in pre-trial custody, which began prior to the amendments, in February 2010, to s. 719(3) of the Criminal Code . [ 35 ] The Crown seeks, as a net sentence, 2 years in prison, together with 3 years probation. Three ancillary orders are also sought: (1) restitution of $1,100; (2) a lifetime weapons prohibition under s. 109 of the Criminal Code ; and (3) a DNA order. [ 36 ] Defence counsel submits that this is a case of a man who acted foolishly and exercised extremely bad judgment, but for whom the jury expressed some leniency given the background circumstances.

Counsel encouraged the court to adopt an approach similar to that of the jury and to impose a sentence of time served, which would amount to roughly 3 years incarceration. Relevant Case Law: [ 37 ] I was referred to limited caselaw by counsel. The Crown provided me with the 2001 decision of Justice McGarry in R. v. Begg [6] . In Begg , the accused was convicted of assault causing bodily harm, use of a firearm, possession of a firearm and operating a vehicle while disqualified. The facts are not clearly set out in the decision, but it is apparent that the accused shot the victim at close

range, just below the heart. [ 38 ] It is of great significance that Mr. Begg had led a life of lawlessness and had some 101 prior convictions. McGarry J. in fact expressed the belief that it was his obligation “to attempt to keep this criminal off the streets for as long as I legally can.” He imposed a global sentence of 9 years. [ 39 ] While I appreciate counsel’s efforts to provide some assistance to the court by way of existing caselaw, I do not find Begg to be particularly instructive. It involves an accused with a fundamentally different character than that of Mr. Grier.

Moreover, in Begg there appears to be no issue that the gunshot was intentional. Here, the jury acquitted Mr. Grier of pointing a firearm at his brother, which may lead to an inference that they accepted that the second discharge was accidental. [ 40 ] It is often difficult to find cases directly on point, particularly in cases like the one now before the court, which involves a variety of interconnected offences, with more than one victim and a complicated factual backdrop.

The difficultly is a reflection, of course, of the wide variety of circumstances in which offences are committed, of the individualized nature of sentencing and of the considerable discretion that trial judges have in fashioning sentences. As Chief Justice Lamer observed in R. v. M. (C.A.) [7] : Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [ 41 ] All of this is to say that there is no “one size fits all” sentence. Nowhere is that more in evidence than in this case.

It is necessary, as it always is, to craft a sentence that fits the offences as well as the offender and which takes into account the unique circumstances in which the offences took place. Mitigating and Aggravating Circumstances [ 42 ]

Section 718.2 of the Code mandates that the Court consider any relevant mitigating or aggravating factors relating to the offence or the offender that may increase or reduce the sentence to be imposed. Mitigating Factors: [ 43 ] I have considered the following factors as mitigating ones: (

i) While Mr. Grier has a criminal record for mischief and driving with a blood/alcohol content over 80, the offences are dated. He has had no convictions for the past 9 years; (ii) Although described by his brother as loud and obnoxious, Allistair does not have a history of acting violently. The acts in question appear to be out of character for him and do fit the profile of someone who “lost it” as Mr. Orr suggested to the jury. Aggravating Factors: [ 44 ] I have considered the following factors to be aggravating ones: (

i) The offences took place in the family home of Colin, Jeanne and Logan Grier – a place that should be one of safety and security. The circumstances of the offences were akin to a home invasion; (ii) The sudden, extreme violence of the events; (iii) The discharge of a firearm in a residential neighbourhood. The so-called “warning shot” actually penetrated the neighbour’s home to the north of Colin and Jeanne Grier’s home; (iv) There were three victims. I have included Logan Grier as a victim, given that, at 11 years old he had to witness his mother and father threatened with death and his father shot in the head; (

v) While there existed a long simmering quarrel between Colin and Allistair, it appears that the brothers had not spoken for months prior to the incident on December 9, 2009. In other words, Allistair did have a long period of time in which to reflect on lawful ways in which to express his disapproval of his brother’s actions. His criminal actions were the result of a considered decision. Discussion: [ 45 ] There is no dispute about the foolishness of Mr. Grier’s actions on the night of December 9, 2009.

Whatever grievances he had with his brother, however justified his feelings of disappointment, bitterness and anger may have been, he was well offside when he took a loaded pistol to Colin’s home and confronted him with it, in the presence of his wife and child. [ 46 ] The use of a gun in the commission of an indictable offence is a particularly serious matter.

Parliament’s denunciation of the use of firearms in the commission of offences is underscored not only by the imposition of a maximum sentence of fourteen years, but also by the provision of a minimum sentence of one year, to be served consecutively to any other punishment imposed for any other offence arising out of the same event or transaction. [8] [ 47 ] The serious and growing danger posed by gun crimes in our community was recently discussed at some length by Mr. Justice Binnie in R. v.

Clayton and Farmer . [9] There he referred to gun calls engaging the “fundamental issues of public peace and public order” and went on to observe that “the public can not be expected to tolerate guns flourished or waved about in public places.” The

community is equally intolerant, I would say, of guns flourished and discharged in the context of home invasions. [ 48 ] Having made those basic observations about the brandishing, and indeed the discharge of a gun, I pause to reflect on what counsel agree are the somewhat perplexing findings of the jury. Mr. Grier was acquitted of aggravated assault, but found guilty of the lesser and included offence of assault causing bodily harm to Colin Grier. At the same time, he was acquitted of pointing a firearm at Colin Grier.

It is difficult to reconcile the jury’s conclusions with the essential elements of the offences. There was a punch to the mouth which inflicted only a minor injury -inconsistent, one would think, with the definition of “bodily harm.” Presumably the “bodily harm” in this instance, was the injury to Colin’s scalp, which was the result of the discharge of the firearm. What is particularly puzzling, of course, is the jury’s conclusion that the gun was not pointed at Colin.

Yet there must have been a finding of an intentional application of force that resulted in the bodily harm. [ 49 ] We will not know the particular path that the jury followed to reach its conclusions. I am satisfied that the discharge of the gun was the intentional application of force that caused the bodily harm to Colin Grier. In my view such a finding is not necessarily inconsistent with the jury’s verdicts. [ 50 ] I share the Crown’s view that the offences in this instance were very serious indeed. The use of a gun, in and of itself, is obviously an egregious element to the offences.

One victim was shot in the head and, in my view, is lucky to be alive. On the defence theory of the case the gun accidentally discharged. Even if that were the case, Allistair Grier then gratuitously punched his brother – who was rendered helpless by the gunshot – in the mouth and threatened to kill him, his wife and child if the police were called.

Another victim was threatened with death at gunpoint, which was a very real and serious threat indeed considering the gun had been discharged twice, resulting in a bullet wound to Colin’s head. [ 51 ] I agree with McGarry J.’s observation in Begg , at paragraph 10, that anyone who chooses a firearm to resolve their legal disputes, is deserving of serious punishment. [ 52 ] Moreover, I do not accept, with the greatest of respect, Mr. Orr’s view that this was a case of bad judgment. Unquestionably, the choice to bring a gun to resolve the petty dispute between the brothers was poor judgment.

But I can not conclude that it was impulsive or that Allistair was overwhelmed or overtaken by emotion. He had months to think about it. [ 53 ] In R. v. Rosenfeld [10] , a lawyer was convicted of laundering money for a criminal enterprise. The trial judge imposed a 3 year penitentiary sentence. It was increased to 5 years on appeal.

Justice Doherty found that “[t]he only reasonable inference is that the appellant chose criminal activity over legitimate ways of earning a living because the criminal activity offered the possibility of quicker, easier and larger profits.” He held that people who choose criminal activity for profit must be prepared for substantial penalties. [ 54 ] Mr. Grier’s situation is analogous. He chose to use a gun to settle his financial dispute with his brother – undoubtedly for emphasis – but also because it potentially offered a quicker and easier solution to their dispute. [ 55 ] Mr.

Grier has spent just over a year and a half in pre-trial custody. He shall receive credit for three years for that time. Were it not for that credit, a significant penitentiary term would have been imposed. In particular, I would have imposed 3 years for the assault causing bodily harm, 6 months concurrent for threatening Jeanne Grier with death, 6 months concurrent for assaulting Jeanne Grier, 3 months concurrent for pointing a weapon at Jeanne Grier and one year consecutive for using a firearm in the commission of an offence, for a global sentence of 4 years.

Taking into account the time served, the global sentence is reduced to one year in custody and to that I add 3 years probation on the following terms: (

i) To report to a probation officer within 2 working days following his release from custody; (ii) To keep the peace and be of good behaviour; (iii) To appear before the court when required to do so by the court; (iv) To notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (

v) Not to have any contact, direct or indirect, with Colin Grier, Jeanne Grier and/or Logan Grier; (vi) Not to be within 200 metres of the residence, place of business or employment and/or place of education of Colin Grier, Jeanne Grier and/or Logan Grier; and, (vii) To pay restitution to Colin Grier in the amount of $500.00; Sentence: [ 56 ] In

summary then, I impose the following sentence: (

i) On Count 6: time served, plus 3 years probation on the terms I have set out; (ii) On Count 3: time served, plus 3 years probation, concurrent to count 6; (iii) On Count 4: time served, plus 3 years probation, concurrent to count 6; (iv) On Count 5: time served, plus 3 years probation, concurrent to count 6; and, (

v) On Count 7: one year imprisonment, plus three years probation.

[ 57 ] In addition, the following ancillary orders are made: (

i) A weapons prohibition order under s. 109 of the Criminal Code , for life; and, (ii) A DNA orders under s. 487.051 of the Criminal Code in relation to each conviction. Boswell J. Released: June 20, 2011