R. v. Borde (Q.), (2003) 168 O.A.C. 317 (CA)

• Judge: O'Connor, A.C.J.O., Weiler and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Wednesday December 11, 2002
• Jurisdiction: Ontario
• Citations: (2003), 168 O.A.C. 317 (CA);2003 CanLII 4187 (NS CA);2003 CanLII 4187 (ON CA);63 OR (3d) 417;172 CCC (3d) 225;8 CR (6th) 203;[2003] OJ No 354 (QL);168 OAC 317;56 WCB (2d) 510

R. v. Borde (Q.) (2003), 168 O.A.C. 317 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. FE.027

Her Majesty The Queen (respondent) v. Quinn Borde (appellant)

(C38189)

Indexed As: R. v. Borde (Q.)

Ontario Court of Appeal

O'Connor, A.C.J.O., Weiler and Rosenberg, JJ.A.

February 10, 2003.

Summary:

The accused pleaded guilty to a number of offences, including possession of a loaded restricted weapon, aggravated assault and using a firearm in the commission of an indictable offence. He was sentenced to five years' and two months' imprisonment in total. The accused applied for leave to appeal the sentence, arguing that the sentence should be reduced because of systemic and background factors. The accused also applied to admit fresh evidence to inform the court about the impact of those factors on young black males; especially those growing up, like the accused, in the Regent Park community. This issue was not raised before the trial judge.

The Ontario Court of Appeal dismissed the application to admit fresh evidence. The court, however, granted leave to appeal the sentence, allowed the appeal and reduced the sentence for aggravated assault by one year, such that the accused's total sentence was four years' and two months' imprisonment.

Criminal Law - Topic 5830

Sentencing - Considerations - General (incl. step or jump principle) - The accused pleaded guilty to a number of offences, including possession of a loaded restricted weapon, aggravated assault and using a firearm in the commission of an indictable offence - The accused was 18 when the offences were committed - He was sentenced to five years' and two months' imprisonment in total - The accused appealed the sentence, arguing that the trial judge failed to give effect to the "jump principle", which cautioned the court against imposing a dramatically more severe sentence than the sentences imposed on the offender for similar offences in the recent past - The Ontario Court of Appeal held that the "jump principle" had little application in this case, where the severity of the crimes showed a dramatic increase in violence and seriousness - The court stated that despite his youth, the accused revealed himself as a dangerous individual and a lengthy sentence had to be imposed - See paragraphs 38 and 39.

Criminal Law - Topic 5833

Sentencing - Considerations - Deterrence - The accused pleaded guilty to, inter alia, possession of a loaded restricted weapon, aggravated assault and using a firearm during an offence - He was sentenced to five years' and two months' imprisonment - Substantial youth record including crimes of violence - "Chaotic" upbringing - Abused alcohol - Age 18 at time of offences - The accused appealed the sentence - The Ontario Court of Appeal held that the trial judge did not give proper consideration to the accused's youth and that a first penitentiary sentence should be as short as possible - The trial judge erred in focusing almost exclusively on the objectives of denunciation and general deterrence - The court stated that the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence - The court therefore reduced the sentence to four years and two months - See paragraphs 36 and 37.

Criminal Law - Topic 5841

Sentencing - Considerations - Age of accused - [See Criminal Law - Topic 5833].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5833].

Criminal Law - Topic 5871

Sentence - Possession of restricted weapon - [See Criminal Law - Topic 5833].

Criminal Law - Topic 5917

Sentence - Using firearm during offence - [See Criminal Law - Topic 5833].

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See Criminal Law - Topic 5833].

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal (incl. fresh evidence) - The accused pleaded guilty to, inter alia, possession of a loaded restricted weapon, aggravated assault and using a firearm while committing an indictable offence - He was sentenced to five years' and two months' imprisonment in total - The accused appealed the sentence, arguing that the sentence should be reduced because of systemic and background factors - He sought to introduce fresh evidence to support his argument - This issue was not raised before the trial judge - The Ontario Court of Appeal held that systemic racism and the background factors faced by black youths in Toronto were important matters and in other cases could affect the sentence - However, in this case, the crimes were so serious that the systemic and background factors could not affect the length of the sentence - Accordingly, the court dismissed the application to admit the fresh evidence - See paragraphs 17 to 35.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Criminal Law - Topic 6218].

Practice - Topic 9032

Appeals - Evidence on appeal - Criminal cases - [See Criminal Law - Topic 6218].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161; 133 C.C.C.(3d) 385, refd to. [para. 25].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), refd to. [para. 25].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1; 124 C.C.C.(3d) 481, refd to. [para. 25].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 25].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1 (S.C.C.), refd to. [para. 25].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 148 C.C.C.(3d) 193, refd to. [para. 27].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 141 C.C.C.(3d) 368, refd to. [para. 28].

R. v. Roud and Roud (1981), 58 C.C.C.(2d) 226 (Ont. C.A.), leave to appeal refused (1981), 37 N.R. 449; 58 C.C.C.(2d) 226 (S.C.C.), refd to. [para. 35].

Authors and Works Noticed:

African Canadian Legal Clinic, Anti-Black Racism in Canada: A Report on the Canadian Government's Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (July 2002), Executive Summary, p. 4 [para. 21].

Ontario, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995), c. 4 [para. 19]; c. 8, pp. 280 [para. 20]; 285 [para. 22].

Roberts, J.V., and Doob, A.N., Race, Ethnicity and Criminal Justice in Canada, in Ethnicity, Crime and Immigration (1997), pp. 469 [para. 19]; 512 [para. 20].

Counsel:

Laura Eplett, for the respondent;

David M. Tanovich, for the appellant.

This appeal was heard on December 11, 2002, before O'Connor, A.C.J.O., Weiler and Rosenberg, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment for the Court of Appeal which was released on February 10, 2003.