An Ontario judge has slammed his colleagues for damaging the “institutional credibility” of the court system after they gave no prison time to a gunman at an infamous Toronto funeral shooting.
“If an offender can bring a handgun to a funeral, fire it towards the busiest highway in the country, ultimately avoiding incarceration, then it is evident that this court’s warnings about handgun violence have been rendered futile,” wrote Ontario Appeals Court Justice William Hourigan in a dissent regarding the case of Terrell Burke-Whittaker.
Hourigan added, “our institutional credibility suffers when we claim to take handgun crime seriously and then fail to impose meaningful sentences in cases where public safety is at risk.”
Burke-Whittaker was one of the participants in a massive June 2020 shootout that occurred at a vigil for Dimarjio Antonio Jenkins, a murdered Toronto rapper known as “Houdini.”
A car pulled up on the vigil from nearby Highway 401, where the vehicle’s occupants fired on the gathered crowd. Members of the vigil then returned fired. According to shell casings recovered from the scene, as many as 60 bullets were fired towards the crowded highway.
Burke-Whittaker, then 24, was among those returning fire. He had brought an illegal pistol to the vigil, and when the shooting began, he took cover behind a dumpster and “fired a shot toward the vehicle, in the general direction of Highway 401,” according to court documents.
The shooting was caught on surveillance video, and Burke-Whittaker was among those identified by police.
He would turn himself in more than a year after a warrant was issued for his arrest. Although initially charged with “discharging a firearm with intent to wound,” Burke-Whittaker would be convicted only of possessing a loaded, prohibited firearm — a charge to which he pled guilty.
Like any Canadian sentencing decision, Burke-Whittaker’s also delves deeply into his childhood and background to identify any potential “mitigating” factors for his criminality. Most of Burke-Whittaker’s focused on the fact that he had himself been a victim of crime; his mother was murdered when he was 13, his best friend had been shot and killed and he had diagnosed PTSD after being the victim of a robbery.
The Criminal Code allows prison sentences of up to 10 years for a gun possession charge, and the Crown had pushed for Burke-Whittaker to go to jail for four years. But in Ontario Superior Court Burke-Whittaker was ultimately sentenced to just two years of house arrest.
In a May decision, Justice Robert Goldstein acknowledged that a prison term of some kind would be expected for such a crime, given its “aggravating” factors. Goldstein concluded that Burke-Whittaker seemed to struggle with the proper use of his gun, and if he’d been more adept at its operation, he likely would have fired off more rounds.
What’s more, Burke-Whittaker was firing at the country’s busiest highway. “That round could have easily hit a passing vehicle and killed or injured people. It is simply a matter of moral luck that it did not do so,” wrote Goldstein in his sentencing.
Nevertheless, Goldstein concluded that Burke-Whittaker deserved “a break,” given that he’d shown remorse for the crime and had actively been training to become a firefighter since the incident. “I think that there is no social utility in this particular case in sending Mr. Burke-Whittaker to the penitentiary,” he wrote.
This prompted prosecutors to appeal the “no jail” sentence as being too lenient, and in a Feb. 26 decision the Ontario Court of Appeal agreed — but in a weird twist decided nonetheless not to send Burke-Whittaker to jail.
In a majority decision, appeals court justice Lise Favreau slammed the sentence as “demonstrably unfit,” and wrote that Goldstein had “lost sight of the seriousness of the offence.”
Nevertheless, she ruled that while Burke-Whittaker should have rightly been handed a three-year jail sentence, it wasn’t worth sending him to jail now since he was already nine months into his sentence of house arrest.
“While I would spare Mr. Burke-Whittaker from incarceration and a penitentiary sentence at this point in the process, the sentence was nevertheless demonstrably unfit at the time it was imposed,” she wrote, adding “this court has repeatedly condemned gun violence and must continue to do so.”
In his dissent, Hourigan wrote that mere condemnations from the court will not be believed unless they’re backed with action.
“Finding an offender should have been incarcerated, but then ruling that he should now not face incarceration, hardly sends a clear message to the public,” he wrote. “This type of analysis undermines our credibility with the public.”