



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fabbro, 2021 ONCA 494

DATE: 20210705

DOCKET: C69106

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin James Fabbro

Appellant

Donald Orazietti, for the appellant

Adam Wheeler, for the respondent

Heard: May 26, 2021 by video conference

On appeal from the sentence imposed on February
    12, 2021, by Justice John P. Condon of the Ontario Court of Justice.

Gillese J.A.
:

[1]

This appeal exposes the ongoing challenges for
    sentencing judges arising from the opiate scourge in our province.




I.        OVERVIEW

[2]

Justin James Fabbro, the appellant, comes before
    this court because of an incident that took place on January 20, 2019, in Sault
    Ste. Marie, Ontario. He was 36 years old at that time and in the throes of a
    heroin addiction. His domestic situation had broken down. He wanted to end his
    life.

[3]

The appellants addiction started when he was overprescribed
    Percocet and OxyContin
[1]
at age 25, following a boating accident. Later, he had surgery on his shoulder
    and knees. After four or five years of taking pain medication, the doctors
    would no longer prescribe them and he began buying drugs on the street.

[4]

The appellant also suffered from serious unresolved
    trauma arising from three events. In the year before the boating accident: he
    found the body of a neighbor who had committed suicide by hanging; he saw a
    friend decapitated in front of him; and, he saw a snowmobiler go over a cliff. His
    resulting grief and trauma issues had not been addressed.

[5]

In the month leading up to the incident, the
    appellant went to the Sault Area Hospital on three occasions to get medical help
    for suicidal ideation but was sent away each time. Two earlier visits to the
    hospital had also been unsuccessful.

[6]

Just before 10:00 a.m. on the day of the
    incident, the police received information that the appellant had been seen leaving
    a residence with a gun and that he might harm himself. At the time, the
    appellant was wanted on a surety revocation warrant related to outstanding
    firearm charges. He was also bound by a recognizance not to possess firearms.

[7]

Shortly after receiving the call, the police located
    the appellant, who was driving a truck. They initiated a traffic stop. The
    appellant pulled into the driveway of a residence with which he had no
    connection and put a shotgun in his mouth. The police officer on the scene
    called for backup. More police officers, the Emergency Services Unit, and a
    negotiator arrived on the scene.

[8]

The appellant spoke to the police officers. He was
    emotional and upset. He repeatedly said that he did not want to hurt the police
    or anyone else, only himself. He also said he had a tough life, was still using
    heroin but wanted to stop, did not want to go to jail, and did not know if he
    wanted to live.

[9]

While negotiations with the appellant were
    taking place, the occupants in the residence were evacuated.

[10]

After a standoff of several hours, the appellant
    threw the gun out of the passenger-side window and got out of the truck. The
    gun had been sawed off. It was not loaded but it was capable of firing. He was
    arrested and taken to hospital where he was admitted pursuant to the
Mental
    Health Act
,
R.S.O. 1990, c. M.7.

[11]

The appellant was eventually released on bail
    and undertook sustained, significant steps to address his substance addiction and
    mental health challenges. Those steps included: attending and successfully
    completing a residential treatment program; enrolling in another such program and
    attending until it was shut down due to COVID-19; participating in the
    methadone program at the addiction treatment centre in Sault Ste. Marie; and, being
    under the care of a psychiatrist to address his addiction and the root issues
    that were affecting his mental health.

[12]

As a result of the incident, the appellant was
    charged with
carrying a weapon for a purpose dangerous
    to the public peace (
Count 1
). Later, he was charged with: possessing
    a prohibited firearm with readily accessible ammunition while not being the
    holder of a license; while on recognizance, failing without lawful excuse to
    comply with the condition that he not possess any weapons; and, having a
    sawed-off shotgun in his possession while prohibited from doing so under a
    recognizance.

[13]

The appellant pleaded guilty to the offences and
    was sentenced to two years less a day in prison, followed by three years of
    probation. Several ancillary orders were also made.

[14]

The sentencing judge acknowledged that the
    appellant
was suffering from compromised mental health
    and a drug addiction at the time of the incident and had since
chosen a path of significant rehabilitation. He described the
    incident as the catalyst for an awakening or intervention  causing the
    pursuit of a course of rehabilitation and reformation. However, because the incident
    involved a firearm  in particular, a sawed-off shotgun  he viewed the primary
    sentencing principles to be denunciation and deterrence.

[15]

The sentencing judge also acknowledged that the
    appellant had pleaded guilty and expressed remorse. Further, he found that,
    during the incident, the appellant never threatened harm against anyone but himself
    and his actions were consistent with that. As well, the trial judge observed that
    the appellant had been on strict bail conditions for over two years following the
    incident and there had been no breaches in that time.

[16]

On appeal, the appellant submits that the
    sentence is demonstrably unfit. He does not appeal the conditions of probation
    or the ancillary orders.

[17]

For the reasons that follow, I would allow the
    appeal and substitute a conditional sentence on the terms that the parties have
    agreed to.

II.       THE ISSUES

[18]

The appellant argues that the sentence is
    demonstrably unfit because the sentencing judge:

1.

placed undue emphasis on the principle of
    protection of society;

2.

failed to award
Downes
[2]

credit
    for time he spent under house arrest; and,

3.

erred by not imposing a conditional sentence due
    to the appellants mental health.

III.      ANALYSIS

[19]

Sentencing judges are in the best position to
    determine just and appropriate sentences and are entitled to considerable
    deference:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    41. Appellate intervention is warranted in only two situations. First, where
    the sentencing judge commits an error in principle, fails to consider a
    relevant factor, or erroneously considers an aggravating or mitigating factor,
    and the error had an impact on the sentence:
Lacasse
, at para. 44.
    Second, where the sentence is demonstrably unfit:
Lacasse
, at para.
    51. In either situation, the appellate court may set aside the sentence and
    conduct its own analysis to determine a fit sentence in all the circumstances.

[20]

In my view, the sentencing judge erred in
    principle in two regards. First, he failed to consider a relevant factor, which
    led to an undue emphasis on the principles of denunciation and deterrence. Second,
    he failed to consider whether there was a causal link between the appellants
    mental health condition and his criminal conduct when deciding whether a
    conditional sentence was warranted. As both errors had an impact on the
    sentence, in my view, it falls to this court to conduct its own analysis and
    determine a fit sentence.

[21]

In terms of the first error, the sentencing
    judge pointed to this courts jurisprudence to conclude that, because the offences
    involved firearms, the primary sentencing principles were denunciation and
    deterrence. In my view, this fails to take into consideration the relevant fact
    that the appellant had the gun because he intended to use it to commit suicide.
    In Canada, it is not an offence to commit suicide or attempt to commit suicide.
    The appellants offence was that he was carrying a weapon for a purpose
    dangerous to the public peace.

[22]

There can be no doubt that when a person carries
    a firearm, there is always the potential for danger to the public. However, the
    danger was much attenuated in the circumstances of the present case: the shotgun
    was not loaded (although the appellant had ammunition nearby); the appellant said
    he was not going to hurt anyone other than himself and the trial judge found
    that his actions [were] consistent with that; and, the officers at the scene
    indicated they did not feel any direct threat against them.

[23]

The appellant had the gun because he intended to
    use it to commit suicide. An act of attempted suicide is the ultimate plea for
    help. It does not cry out for a denunciatory sentence. This consideration, coupled
    with the much-attenuated danger to the public, leads me to conclude that the
    primary sentencing principles in this case are not limited to denunciation and
    deterrence  they include rehabilitation. This view finds support in the second
pre-sentence report where the author provides this
    assessment:

If we remove the weapon from the equation of the
    offence we are dealing with a young man with undiagnosed/untreated mental
    health issues combined with substance addiction  [H]is intent was not to harm
    anyone other than himself, numerous times he expressed attempts to seek help
    through the hospital and being turned away. In dealing with the offenders
    mental health and continued abstinence of substance use the risk to further
    self-harm to himself and collateral harm to the community is very minimal at
    best.

Continued involvement with professional
    services, abstinence, and community supports will even lessen the risk of the
    offender contemplating self-harm in the future.



The offender has proven for the past 10 months
    that with community and family supports he is capable of being a productive
    member of the community.

[24]

In terms of the second error, the Crown submits that
    the evidence did not indicate a causal link between the appellants mental
    state and the offences. It argues that there was no evidence the appellant was
    experiencing a delusion or in a mental state that rendered him incapable of
    appreciating the consequences of his actions. He did not challenge his
    criminal responsibility or mental capacity at sentencing.

[25]

Respectfully, the Crowns argument misses the
    point. The question is not whether the appellant was suffering from delusions
    or a mental disorder. For mental health to be considered a mitigating factor in
    sentencing, the offender must show a causal link between their illness and
    their criminal conduct. That is, the illness must be an underlying reason for
    the conduct. And, there must be evidence that a lengthy sentence would have a
    serious negative effect on the offender such that it should be reduced on
    compassionate grounds. See
R. v. Megill
, 2021 ONCA 253, at para. 171;
R.
    v. Hart
, 2015 ONCA 480, at para. 6; and
R. v. Pioriello
, 2012
    ONCA 63, 288 O.A.C. 198, at paras. 11-12. In
Hart
, on a Crown appeal,
    this court upheld the conditional sentence imposed by the trial judge where the
    mitigating factors included the inference that the appellants mental health
    played a causal role in the commission of the offence. At para. 6, this court
    found that was a proper inference. And, at para. 8, this court stated:

The record also supports the trial
    judges conclusion at para. 50 of her reasons, namely: To now impose a
    custodial sentence would likely destroy any progress that has been made by Mr.
    Hart with respect to his mental health and in my view serve no genuine societal
    purpose.

[26]

While the sentencing judge acknowledged the
    appellants addiction and mental health challenges, he did not consider whether
    there was a causal link between them and the offences. He was required to
    determine the extent to which those matters contributed to the appellants conduct
    and the impact of that finding on the appropriate sentence:
R. v. Ellis
,
2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused,
    [2014] S.C.C.A. No. 53. There was ample evidence of that causal link in the: two
    pre-sentence reports; medical records which included the appellants attempts
    to get treatment at the Sault Area Hospital in the months leading up to the
    incident; and, reports from Dr. Pistor (psychiatrist), John Mertes
    (therapist), and Frank Perri (social worker). The conclusion that there was
    such a causal link is virtually inescapable on the evidence: the appellant
    wanted to commit suicide (using the shotgun) because of his addictions, his
    unresolved mental health issues, and the ensuing breakdown of his life. That
    the appellants mental health problems and addiction played a central role in
    the offences is borne out by the appellants conduct once on bail and being
    treated. He abided by strict bail conditions for over two years without a
    breach and fully complied with the rules and regulations of the John Howard
    Society Bail and Supervision Program.

[27]

Even if denunciation and deterrence were the
    overriding objectives in this case, a sentence of imprisonment was not the only
    route to achieve them. A conditional sentence recognizes the seriousness of the
    offences while at the same time acknowledging and promoting the significant
    strides in rehabilitation that the appellant has made with the help of his
    family and the medical community. Imposing a custodial sentence was likely to
    have a serious negative effect on the appellants progress and would not serve the
    genuine societal interest.

[28]

Finally, I reject the appellants submission
    that the sentencing judge erred in failing to give him credit for the time he
    spent under house arrest.
While the sentencing judges
    reasons on
Downes

credit are sparse, a careful reading of
    paras. 62-63 shows that the appellant was given credit for that time.

[29]

In para. 62, the sentencing judge acknowledged
    that there had been no further breaches of bail on charges that arose over two
    years earlier. He then stated, Credit must be given to [the appellant] for
    compliance with those restrictive bail conditions. The sentencing judge went
    on, in para. 62, to describe the extensive progress the appellant had made
    while following a path of significant rehabilitation.

[30]

When he sentenced the appellant on Count 1 to 20
    months custody, at para. 63 of his reasons, the sentencing judge stated that he
    had factored in the appellants considerable rehabilitation and lengthy
    compliance with the current bail order. He concluded that In the absence of
    these mitigating factors, a penitentiary sentence would have been imposed. From
    this, it is clear that the sentencing judge reduced the sentence imposed for
    Count 1 by at least four months in consideration of his rehabilitation efforts
    and as
Downes

credit.

IV.
DISPOSITION

[31]

For these reasons, I would grant leave to appeal
    sentence, allow the appeal and substitute a two-year-less-a-day conditional sentence
    for the two-year-less-a-day custodial sentence, on the terms that the parties
    have agreed to. The conditional sentence order, containing these agreed-upon
    terms, is attached to the final order. The probation order and ancillary orders
    imposed by the sentencing judge remain undisturbed.

Released: July 5, 2021 J.S.

E.E. Gillese
    J.A.

I agree. Janet
    Simmons J.A.

I agree. Grant
    Huscroft J.A.





[1]
The appellant
said he was prescribed 300 Percocet and 180
    OxyContin per month after the boating accident. The author of the first pre-sentence
    report was unable to confirm this because the initial prescribing physician had
    been suspended from practicing medicine.



[2]

R. v. Downes
, 79 O.R.
    (3d) 321.


