TORONTO

Before he retired last year, Ontario Superior Court Justice Eugene “Tex” Ewaschuk bore the rhyming nickname “You is f---ed” for his tough-on-crime judgments that sent gun-toting criminals to prison for long stretches of time.

Unfortunately, he seems to have been too tough for the Ontario Court of Appeal.

The appeal court has just overturned the harsh sentences Ewaschuk gave two killers who sprayed 13 bullets in a brazen 2007 daylight drive-by shooting in Rexdale, saying the judge should have considered the tender killers’ young age at the time and their “real potential for rehabilitation.”

In 2013, shooter Anthony Grant and getaway driver Devon Vivian were found guilty of second-degree murder in the June 9, 2007 slaying of Jose Hierro-Saez, 19, as well as the wounding of four of the dead man’s friends. Grant admitted opening fire at a Honda on John Garland Blvd. after he and Vivian were robbed earlier that day at Dr. Flea’s Market by some of the men in the car.

The pair are now two times lucky thanks to Ontario’s highest court. Originally found guilty of first-degree murder in 2010, the appeal court ordered a new trial because of faulty jury instructions by the first judge.

This time, a jury found them guilty of second-degree murder, which carries a mandatory life sentence. The only issue for Ewaschuk to determine was how long each would have to serve before they could apply for parole.

After 32 years on the bench, he had a front row seat to the rise in gun violence in this city and wasn’t afraid to sentence accordingly. He described the killing as “outrageous, shocking and horrendous” and warned “the use of guns remains a scourge to the Toronto community.”

His disgust was palpable: “Grant discharged 13 shots on a residential Toronto street in the middle of a Saturday afternoon. It was miraculous that the accused Grant did not kill any innocent bystanders,” Ewaschuk noted.

So not for him any bleeding heart sympathy for their tough upbringings. For Grant, the judge rejected the jury’s suggestion of 15 years as “manifestly inadequate” and even went above the 17 years requested by the prosecution. Instead, he imposed 18 years before the shooter can apply for parole. For Vivian, the jurors recommended 11 years and Crown counsel wanted 15 — Ewaschuk gave him a parole ineligibility of 13 years.

The appeal court ruled that he’d been too hard on the little darlings.

Ewaschuk “failed to give any weight to a highly relevant consideration — the appellants’ relative youth,” complained Justice John Laskin on behalf of the three-judge panel. “Grant was only 21 and Vivian was only 20 when they committed this offence. Their youth alone argues for a shorter rather than longer period of parole ineligibility.

“Moreover, though both had been trafficking in drugs since their mid-teens, neither had a record for any previous offence of serious violence.”

The appeal court had effusive praise for the killer: Grant has support from his family who continue to visit regularly, prison parole authorities say he has “excellent prospects for rehabilitation,” and he’s taken “every available opportunity to improve himself over the course of his six and one-half years in custody, including by returning to school and getting excellent grades.”

As for his partner in crime, Vivian “had a difficult upbringing. From a young age he often had to care for his younger siblings, as his mother, a drug addict, was frequently absent from the home because of her addiction.”

Noting their good prospects at turning over a new leaf, the optimistic appeal court shaved four years off Grant’s sentence and two off Vivian’s — the killer will now be able to seek parole after serving 14 years and the getaway driver can apply after 11. The judges also greatly reduced the terms the pair were serving concurrently for shooting at the other men in the car — Grant’s life sentence for four counts of attempted murder was thrown out and replaced with a 13-year term and Vivian’s 14 years for four counts of aggravated assault was reduced to ten.

So lucky for us, these two will be back on the streets of Toronto far sooner than a tough-on-crime judge ever intended.

mmandel@postmedia.com