



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bebee, 2021 ONCA 33

DATE: 20210118

DOCKET: C68499

Rouleau, van Rensburg and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Bebee

Appellant

Michael
    Bebee, acting in person

Nicole
    Rivers
, for the respondent

Dan Stein,
    appearing as duty counsel

Heard:
    January 11, 2021 by video conference

On appeal
    from the sentence imposed on July 3, 2020 by Justice Riun Shandler of the Ontario
    Court of Justice.

REASONS
    FOR DECISION

[1]

At the conclusion of oral submissions, we
    advised that we would allow the sentence appeal and vary the sentence from four
    years to one of three and a half years with reasons to follow. These are those
    reasons.

Facts

[2]

On January 2, 2020, the appellant pleaded guilty
    to possession of a loaded restricted firearm and possession of a restricted
    firearm knowing possession is unauthorized. He seeks to appeal his sentence of
    four years less a total credit of 844 days for pre-sentence custody, resulting
    in a net sentence of 616 days.

[3]

The convictions arose out of an incident that
    occurred on May 11, 2019. On that day, the appellant entered a sports bar in
    Toronto with a friend. At that time, there were a lot of people in the area
    surrounding the bar. While at the bar, the appellant and his friend had an
    exchange with another individual. The individual then left the bar. The
    appellant and his friend soon left the bar as well and walked through the
    parking lot to a side street. The individual from the bar shot at them from a
    laneway behind the bar. The appellant then pulled out his handgun and
    retaliated, firing three times. He then began running away but turned back to
    fire one more shot before fleeing the scene.

[4]

On June 5, 2019, approximately one month after
    the incident, the appellant surrendered to the police.

Sentencing Reasons

[5]

In his reasons, the sentencing judge noted the
    seriousness of the offences, indicating that the appellants conduct posed a
    very real and immediate danger to the public. In that regard, he opined that
    the principles of deterrence and denunciation were paramount in sentencing the
    appellant.

[6]

The sentencing judge considered the
Gladue
Report regarding the appellants Aboriginal status and the psychiatric report
    of an expert with respect to the appellants post-traumatic stress disorder (PTSD).
    The sentencing judge also recognized various background factors that may have
    played a part in the appellants offending, including the separation of his
    parents due to his fathers substance abuse and physical abuse of his mother,
    his experience of gratuitous abuse from his stepmother, and his experience of
    racism in school. The sentencing judge also accepted that the appellant was now
    committed to a different lifestyle and that this has been demonstrated by his
    significant efforts since being incarcerated. This was further confirmed by the
    appellant and duty counsel in oral submissions on appeal.

Issues

[7]

The appellant argues that the sentencing judge
    erred in his assessment of the experts report and the role that the
    appellants PTSD played in the commission of the offences. Further, the
    appellant contends that the sentencing judge failed to properly apply the
Gladue
factors. According to the appellant, these errors resulted in an unfit
    sentence.

Analysis

[8]

The experts report regarding the appellants
    PTSD referenced a number of significant incidents. The first occurred in 2007,
    when the appellant claimed he was assaulted by a large group of police officers
    in a case of mistaken identity. Charges were laid but the appellant was later
    acquitted. That incident led to the appellants hospitalization for a series of
    injuries to his chest, ribs, nose, and knees. In 2014, just prior to
    participating as a kickboxer in a televised sporting event, the appellant fell
    victim to a serious stabbing that occurred at a party. He was stabbed over 11
    times in his arms, upper torso, and legs, requiring multiple surgeries and a lengthy
    recuperation during which he used a wheelchair for several months. Finally, in
    2018, the appellant was the victim in a shooting, having suffered gunshot
    wounds in both feet resulting in serious damage to one foot.

[9]

In his report, the expert explained that following
    the first incident in 2007, the appellant suffered PTSD, which was exacerbated
    by the incidents of 2014 and 2018. For a period, he began abusing drugs and
    alcohol. The expert went on to explain the link between the PTSD and the
    offending conduct.

[10]

While considering this evidence, the sentencing
    judge noted that the basis for the experts conclusions remains unclear, because
    of apparent inconsistencies as to when the PTSD first arose and conflicting
    accounts as to the appellants purchase of the firearm. Further, the sentencing
    judge noted that the appellant did engage in treatment for his PTSD. In any
    event, while sympathetic to the appellant, the sentencing judge rejected any
    notion that purchasing a firearm illegally is an appropriate means of
    self-protection.

[11]

We agree with the sentencing judge and the Crown
    that the significant traumas suffered by the appellant and the PTSD that
    resulted do not justify the appellants purchase of an illegal firearm and his subsequent
    conduct. However, the traumas and PTSD were important factors to weigh in
    fashioning an appropriate sentence.

[12]

In our view, the sentencing judge erred in his
    assessment of the experts report. Although there were minor inconsistencies in
    his report, the basis for his conclusions were well supported. Further, the
    report was not tendered to somehow endorse the appellants acquisition and use
    of the firearm. Rather, the expert provided an opinion about the role that the
    PTSD played in the appellants commission of the offences. It was relevant both
    to the circumstances of the offences and the rehabilitation prospects of the
    appellant.

[13]

Giving the experts evidence appropriate weight
    and taking into account the
Gladue
Report and other background factors
    that apply to the appellant, including his guilty plea, and considering that
    the appellant appears to be continuing to progress well while in custody, we
    are of the view that the appropriate sentence is one of three and a half years
    in custody.

Disposition

[14]

As a result, in this somewhat exceptional case, we
    grant leave to appeal the sentence and vary the sentence from 4 years to one of
    3.5 years, which, after taking into account the credit of 844 days for pre-sentence
    custody, results in a net sentence of 433 days.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

B.W.
    Miller J.A.


