



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Jarvis, 2022 ONCA 7

DATE: 20220112

DOCKET: C67419

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kristian Jarvis

Appellant

Myles Anevich, for the appellant

Jessica Smith Joy, for the respondent

Heard: January 4, 2022 by
    video conference

On appeal from the sentence imposed on March
    20, 2019 by Justice John McMahon of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant
was sentenced to 13 years
    in custody, with credit for 3 years for time served, after pleading guilty to
    four counts of robbery while using a firearm, four counts of recklessly
    discharging a firearm, one count of aggravated assault, and one count of
    failing to stop for police.

[2]

The appellant argues that the sentencing judge erred in four
    respects:

1.

By imposing the sentence related to discharging a firearm at a police
    officer consecutively rather than concurrently;

2.

By imposing a harsh, excessive, and crushing sentence;

3.

By failing to adhere to the principle of restraint; and

4.

By erring in principle by failing to properly weigh the aggravating and
    mitigating factors.

[3]

At the hearing of the appeal, counsel for the
    appellant focused his submissions on the first and fourth grounds.

[4]

As explained below, we do not agree that the
    sentencing judge made any error.

[5]

The decision to impose sentences consecutively is
    a discretionary decision. The sentencing judge carefully attended to the
    circumstances of the case and concluded that the offences ought to be grouped
    into three distinct phases: (1) firing a handgun at his brother, (2)
    multiple attempted carjackings and assaults including shooting the occupant of
    one of the vehicles, and (3) evading capture by firing at the police while
    engaging them in a high speed chase up Highway 400. The appropriateness of sentencing
    consecutively for offences related to flight from police is supported by the
    authorities that stress the need for deterrence of highly dangerous behaviour in
    flight from police:
R. v. Corcho
, [1993] O.J. No. 98 (C.A.);
R. v.
    Mills
, 2014 ONSC 1134, at para. 110; and
R. v. McFarlane
, [2012]
    O.J. No. 6566 (S.C.), at paras. 70-73. If sentences for such offences are not
    consecutive, flight from police might seem well worth the risk:
R. v.
    Sturge
(2001), 17 M.V.R. (4th) 272 (Ont. C.A.), at para. 6. The sentencing
    judge made no error in this regard.

[6]

The 10-year sentence imposed for aggravated
    assault involving gun violence and injury was within the range identified by
    the parties of 7  11 years:
R. v. Bellissimo
, 2009 ONCA 49, at para.
    3. With respect to firing at police during the chase on Highway 400, the
    sentencing judge reduced the consecutive sentence for discharging a firearm
    with intent to endanger the life of the police officers to 3 years from 7 out
    of respect for the totality principle. The sentencing judge was entitled to
    approach sentencing in this fashion, and the total sentence resulting was not harsh
    and excessive given the circumstances of the offences.

[7]

With respect to the restraint principle, the sentencing
    judge considered the facts relevant to restraint, including the appellants
    lack of a prior criminal record and that the global sentence imposed should not
    crush the appellants hope of rehabilitation and reintegration into society.
    The sentencing judge did not err by prioritizing denunciation and deterrence in
    the circumstances of these offences and this offender.

[8]

Finally, the appellants submission that the
    trial judge erred in improperly weighing the aggravating and mitigating factors
    is in reality an invitation to reweigh, something an appellate court is not
    permitted to do. The sentencing judge took into account, as a mitigating
    factor, that the appellant had committed the offences while in a drug induced
    psychosis brought on by the voluntary ingestion of methamphetamines, but also
    noted that this did not justify his criminal conduct and that the appellant had
    made conscious and clear decisions demonstrating a high degree of culpability. The
    sentencing judge did not make the error of using the elements of the offences
    as aggravating factors. Carrying a handgun was an aggravating element, as was the
    number of times the appellant fired the gun, and the infliction of gratuitous
    violence, particularly with respect to the victim he shot.

DISPOSITION

[9]

Leave to appeal sentence is granted but the
    appeal of sentence is dismissed.

B.W.
    Miller J.A.

B.
    Zarnett J.A.

S.
    Coroza J.A.


