



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rajkovic, 2021 ONCA 11

DATE: 20210111

DOCKET: C66041

MacPherson, Tulloch and Lauwers
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Boris Rajkovic

Appellant

Anthony Marchetti, for the appellant

Natalya Odorico, for the respondent

Heard: December 17, 2020 by video conference

On appeal from the sentence imposed by
    Justice Faye E. McWatt of the Superior Court of Justice on March 29, 2018, with
    reasons reported at 2018 ONSC 1501.

MacPherson J.A.:


A.

Introduction

[1]

The appellant, Boris Rajkovic, pleaded guilty to
    six offences relating to a kidnapping of a bank employee and a failed bank
    robbery that ended in a shootout with police in which he was shot twice in the
    stomach.

[2]

The sentencing judge imposed a global sentence
    of 13 years in jail. She gave the appellant credit for pre-sentence custody and
    onerous pre-trial lockdown conditions totalling three years and seven months,
    leaving a remaining sentence of nine years and five months.

[3]

The appellant appeals the sentence. He
    challenges both the global sentence and the credit components of the sentence.

B.

facts

(1)

The parties and events

[4]

The sentence hearing took six days. On the first
    day of the hearing, the following statement of facts was read into the record:

On Saturday, February 20
th
, 2016, at
    approximately 7:00 a.m. Justine King was leaving her residence to go to work.
    Ms. King at the time was employed as a customer service representative with the
    Toronto Dominion Bank located at 1315 the Queensway in the city of Toronto.

Upon getting into her vehicle an unidentified
    suspect approached Ms. King wearing a police hat and identified himself as a
    police officer. The unidentified suspect advised Ms. King that he was an
    undercover officer and that he was conducting an investigation in the area. As
    he did so the accused, Mr. Rajkovic, approached the passenger side and got into
    Ms. Kings vehicle wearing a face mask in an attempt to conceal his identity.

He then produced a firearm and showed it to Ms.
    King and ordered her to drive to her place of employment. He further advised Ms.
    King that if she didn't comply with his demands, he would kill her and her
    family and burn her house down.

Ms. King complied with his demands and began
    driving to her place of employment followed by an unknown silver vehicle.

The entire incident was captured on a nearby
    surveillance video system from a residence.

While on route to the bank Ms. King was
    holding her cellular phone. The accused ripped the phone from her hand at which
    point she advised the accused that one of her co-workers would be expecting her
    call. She was then ordered by the accused to call her co-worker and advise them
    that she would be bringing a trainee with her to the bank.

Ms. King complied with the accused demand,
    called her co-worker, Ms. Carly Tullo, and advised her accordingly.

While travelling to the bank, the accused was
    in possession of a two-way radio in which he would keep contact  through
    which, pardon me, he would keep contact with an unknown male believed to be the
    unidentified suspect who had initially approached Ms. King in her vehicle.

At approximately 7:30 a.m. the accused and Ms.
    King arrived at the bank. Upon arriving they were met by Ms. Tullo. All three
    parties entered the bank where the accused ordered them to disarm the alarm and
    open the vault; he did so at gun point.

Upon doing so the duress code alarm was
    activated and police were notified. Dispatched police officers attended the
    scene. Prior to the police arriving the accused was advised by his accomplice
    via the two-way radio that the police were on their way.

The accused obtained a quantity of cash from
    the vault and exited the bank. Prior to exiting the bank he threatened to kill
    both Ms. King and Ms. Tullo for tripping the hold up alarm. Upon exiting the
    bank he observed police arriving on scene and as a result went back inside.

The attending officers subsequently contained
    the scene. Shortly thereafter the accused emerged from the southwest emergency
    exit of the bank holding both Ms. King and Ms. Tullo hostage. The accused held Ms.
    Tullo with his forearm around her throat and his gun pointed at her head. He
    then led both parties, Ms. King and Ms. Tullo, toward Ms. Kings vehicle, where
    he had planned to make good his escape.

Upon arriving at the vehicle, the accused let
    go of Ms. King and Ms. Tullo at which point they both ran towards nearby
    officers. The accused then pointed his gun towards the officers and discharged
    his firearm. As he did so responding officers returned fire and Mr. Rajkovic
    was struck once.

[Defence counsel]: Twice.

[Crown counsel]: Pardon me, my friend says
    twice. Well satisfy that fact. He was subsequently placed under arrest and
    transported to St. Michael's Hospital for treatment for what was determined to
    be a non-life threatening injury.

At the time of his arrest a black
    semi-automatic American arms .22-caliber handgun was recovered. The handgun was
    obviously loaded. Also recovered at the scene was a large canister of pepper
    spray and a folding knife. Those are the facts relied upon by the Crown.

[5]

When the appellant was asked if he adopted this
    statement of facts, he quarrelled with only one point:

[The accused]: While  exiting the bank with
    hostages, I didnt put a gun to anybodys head.

[Defence counsel]: You  I take it you used
    them as human shields while carrying a gun?

[The accused]: No, I didnt use them as a
    shield. I tried to escape while having them close to me. I knew I wasnt going
    to receive any fire from the police.

(2)

The sentence

[6]

The Crown position at the sentence hearing was
    20 years incarceration, reduced to 15 years based on the totality principle.
    The defence position was eight years incarceration less enhanced credit for
    pre-trial custody. By the time he was sentenced, the appellant had been in
    custody for two years and one month. The parties agreed that the appellant
    should receive credit of three years and two months for this period of custody.

[7]

The sentencing judge imposed a global custodial
    sentence of 13 years, broken down as follows:

·

Kidnapping with a prohibited firearm  8 years

·

Robbery with a prohibited firearm  8 years
    (concurrent)

·

Discharge prohibited firearm with intent to
    resist arrest  5 years (consecutive)

·

Unauthorized possession of a loaded prohibited
    firearm  3 years (concurrent)

·

Possession of a prohibited firearm  1 year
    (concurrent)

·

Uttering death threats  1 year (concurrent)

[8]

The sentencing judge then deducted two periods
    of time from this global sentence. Pursuant to
R. v. Summers
, 2014 SCC
    26, she applied a 1.5:1 ratio and reduced the sentence by three years and two
    months for pre-trial custody. Pursuant to
R. v. Duncan
, 2016 ONCA 754,
    she applied a 0.5:1 ratio and further reduced the sentence by five months for
    harsh lockdown conditions in pre-trial custody. These two reductions left a
    remaining sentence to serve of nine years and five months.

[9]

The sentencing judge refused to give any credit
    for the appellants allegation that he received poor medical care while he was
    in pre-trial custody.

[10]

The appellant appeals the sentence.

C.

issues

[11]

The appellant advances three grounds of appeal:

1.

The sentencing judge imposed an unfit sentence
    outside the range for these offences;

2.

The sentencing judge erred by imposing a
    consecutive sentence for the discharge firearm offence; and

3.

The sentencing judge erred by not giving
    sufficient credit for the conditions of his pre-trial custody at Toronto South
    Detention Centre.

D.

analysis

(1)

The unfit sentence issue

[12]

The appellant submits that a global sentence of
    13 years for these offences was crushing and, therefore, unfit. He asserts
    that, based on comparable cases, the maximum sentence should have been ten years.

[13]

I do not agree. The constellation of offences in
    this case is both numerous (six) and serious, involving exceptionally troubling
    criminal activity. The sentencing judge succinctly and accurately described the
    appellant's carefully planned, methodical and cruel criminal activity:

He kidnapped a member of the public at her
    home, continued on to her place of employment and kidnapped another civilian
    employee of the bank. He brandished a loaded firearm and threatened their lives
    and their family members. He stole $65,000 and used his hostages as human
    shields. He was then prepared to kill a policeman to make good his escape. It
    could not have got worse than these set of facts unless someone, indeed, died.

[14]

I also observe that three of the offences the
    appellant committed have mandatory minimum sentences of five years.

[15]

Finally, one of the offences the appellant
    committed  discharge firearm to resist arrest  warrants a very strong
    sanction. As Doherty J.A. said in
R. v. McArthur
(2004),
182 C.C.C. (3d) 230, at para 49:

[T]he
maintenance of a just, peaceful and safe
    society is the fundamental purpose of sentencing. Police officers play a unique
    and crucial role in promoting and preserving a just, peaceful and safe society.
    We rely on the police to put themselves in harm's way to protect the community
    from the criminal element. At the same time, we rely on the police to act with
    restraint in the execution of their duties and to avoid the use of any force,
    much less deadly force, unless clearly necessary. Violent attacks upon police
    officers who are doing their duty are attacks on the rule of law and on the
    safety and well-being of the community as a whole. Sentences imposed for those
    attacks must reflect the vulnerability of the police officers, society's
    dependence on the police, and society's determination to avoid a policing
    mentality which invites easy resort to violence in the execution of the
    policing function. [Citation omitted.]

[16]

For these reasons, I conclude that the global
    sentence of 13 years for the appellant's six serious criminal offences was fit.

(2)

The consecutive v. concurrent issue

[17]

The appellant contends that the sentencing judge
    erred by imposing a consecutive sentence of five years for the offence of
    discharging a firearm to resist arrest. He says that this offence formed part
    of a continuous chain of events with other offences; there was no significant
    break in time and place between the bank robbery and discharge firearm to
    resist arrest offences.

[18]

For three reasons, I do not accept this
    submission.

[19]

First, the sentencing judges decision in the
    realm of imposing consecutive and concurrent sentences is entitled to
    considerable deference:
R. v. McDonnell
, [1997] 1 S.C.R. 948, at para.
    46;
R. v. Sadikov
, 2018 ONCA 609, at para. 16.

[20]

Second, on the merits, I can see no error in the
    sentencing judges assignment of the discharge firearm to resist offence to a
    different category than the bank robbery offences. As I noted earlier, the
    discharge firearm to resist arrest warrants a very strong sanction. Moreover, at
    least arguably, the appellant may have caught a break when the sentencing judge
    did not impose a consecutive sentence for the kidnapping but assigned the
    kidnapping offence to the bank robbery offences.

[21]

Third, the appellants submission on this issue
    makes no practical difference. Since I have determined that a global sentence
    of 13 years for the six offences committed by the appellant is a fit sentence,
    the breakdown of the time assigned to each of the offences is of no moment.

(3)

The enhanced credit for medical care in custody
    issue

[22]

The appellant asserts that, although the
    sentencing judge properly gave
Summers
and
Duncan
credit for
    his pre-trial custody, she erred by not giving additional credit for poor
    medical treatment he received at Toronto South Detention Centre. Once again, as
    at the sentence hearing, the appellant relies only on his affidavit and
viva
    voce
testimony at the sentence hearing to support his claim.

[23]

The sentencing judge carefully considered, and
    rejected, this component of the appellants claim for credit for various aspects
    of his pre-sentence custody. She said:

The medical records from the detention centre
    were filed as exhibits and were put to Mr. Rajkovic by the Crown in
    cross-examination. The records did not support any inference that Mr. Rajkovic
    was transferred out of the medical unit because of space issues. In fact, the
    records disclosed that it was the opinion of the doctor in the unit that the
    defendant was fit for discharge and for transfer to the general prison
    population. The records also supported the fact that, after his transfer, the
    defendant was seen daily by medical staff to monitor his wound. The dressing
    was changed every day for two months after the transfer. He was operated on for
    the hernia in April of 2016. In a record from the surgeon, the doctor indicated
    that hernias after the type of surgery Mr. Rajkovic had undergone, were not
    uncommon. In other words, there is no medical evidence that an assault in the
    general population, although unfortunate, caused Mr. Rajkovics hernia.



I am not prepared to give Mr. Rajkovic any
    presentence credit for any allegation of less than standard medical care at the
    detention centre. The medical records do not support it.

[24]

I see no basis for interfering with this
    analysis and conclusion.

E.

dispositon

[25]

I would dismiss the appeal.

Released: JCM JAN 11 2021

J.C.
    MacPherson J.A.

I
    agree. M. Tulloch J.A.

I
    agree. P. Lauwers J.A.


