The Ontario Court of Appeal considered the important issues of addiction and mental health in its recent decision to substitute a conditional sentence for a man convicted of a number of firearm offences and condition breaches in the case of R. v. Fabbro.
Justin James Fabbro (“Fabbro”) was prescribed Percocet and Oxycontin for pain following a boating accident. He became addicted to the medication and after doctors stopped his prescriptions he began buying them off the street. He had also experienced 3 traumatizing events in the past year, including finding the body of a neighbour who had committed suicide, witnessing a decapitated friend and witnessing a snowmobiler drive off of a cliff. Prior to his arrest, he also went to the Sault Area Hospital to get medical help for suicidal ideation on three instances and was turned away on each occasion.
THE CRIMINAL INCIDENT AND ARREST
On January 20, 2019 just before 10:00am, police were notified that Fabbro was leaving his residence with a gun and that he might harm himself. Fabbro was wanted on a surety revocation warrant (surety advises the court they no longer want to be a surety and a warrant is issued for the accused’s arrest) related to outstanding firearm charges and was bound by a recognizance (condition prescribed by a judge) not to possess firearms.
Shortly thereafter, police located Fabbro driving a truck and they initiated a traffic stop. Fabbro pulled into a driveway and was observed putting a firearm in his mouth. Additional police officers, the Emergency Services Unit and a negotiator arrived on scene. Fabbro was emotional and stated that he did not want to hurt anyone, only himself. He admitted that he was still using heroin, but that he wanted to stop and did not want to go to jail. Several hours later, Fabbro threw the unloaded sawed-off gun out of the window and exited his truck. He was arrested and taken to hospital under the Mental Health Act.
Fabbro was later released on bail and he took action to address his addiction and mental health challenges by attending and completing a residential treatment program; enrolling in another similar program and attending until it was shut down due to COVID; participating in a methadone program at the addiction treatment centre; and seeking the assistance of a psychiatrist to address his addiction and his mental health issues.
Fabbro was charged with following crimes:
- carrying a weapon for a purpose dangerous to the public peace;
- possessing a prohibited firearm with readily accessible ammunition, while not being the holder of a license;
- while on recognizance failing to comply with the condition to not possess any weapons; and
- carrying a sawed-off shotgun while prohibited from doing so under a recognizance.
Fabbro pleaded guilty to the offences and was sentenced to two years less a day in prison, followed by three years of probation.
THE APPEAL
Fabbro appealed the trial judge’s decision with regards to his sentence and argued that it was “demonstrably unfit” for the following reasons:
- It placed undue emphasis on the principle of protection of society;
- It failed to award credit for the time that he spent under house arrest; and
- The judge erred by not imposed a conditional sentence due to his mental health.
The law is clear that sentencing judges are in the best position to determine just and appropriate sentences and that an appeal court can only set aside the sentence and determine an appropriate sentence in the following circumstances:
- where the sentencing judge commits an error in principle, fails to consider a relevant factor or erroneously considers an aggravating or mitigating factor which impacts the sentence; or
- where the sentence is demonstrably unfit.
In Fabbro’s situation, the appeal court judges found that the sentencing judge erred in principle in failing to consider a relevant factor, that being that Fabbro had a gun in order to commit suicide, which is not a criminal offence. It was also concluded that the sentencing judge failed to consider whether there was a causal link between his mental health and his criminal conduct when considering his sentence. It was determined that the sentencing judge failed to consider how Fabbro’s addiction and mental health challenges contributed to his conduct and the impact on an appropriate sentence.
Justice Gillese, provided reasons on behalf of the appeal judges, wrote:
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 appellant’s progress and would not serve the genuine societal interest. …
That the appellant’s mental health problems and addiction played a central role in the offences is borne out by the appellant’s 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…
Fabbro’s lawyer, Donald Oraziette, emphasized how important his client’s case was with respect to the issue of mental health and criminal behaviour in Canada. He stated:
It does highlight that we still have a lot of work to do as far as mental health goes, how we underestimate the problems that plague people. A lot of them end up in the justice system … Some are undiagnosed, and some of them are ignored.
If you have been charged with a weapons offence or have any questions regarding your legal rights, please contact the experienced Oshawa criminal defence lawyers at Barrison Law online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.