COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Zaban, 2026 ONCA 587
DATE: 20260818
DOCKET: COA-24-CR-0637
Coroza, Favreau and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Fazal Zaban
Appellant
Paul J.I. Alexander, for the appellant
Bryan Guertin, for the respondent
Heard and rendered orally: August 13, 2026
On appeal from the sentence imposed by Justice Jane E. Kelly of the Superior Court of Justice, on May 14, 2024, with reasons reported at 2024 ONSC 2704.
REASONS FOR DECISION
[1] The appellant was convicted of manslaughter following a judge alone trial. He was sentenced to 13 years’ imprisonment less credit for seven years of pre-sentence custody. He appeals from his sentence.
[2] The appellant was charged with first-degree murder. He shot the victim while arranging to purchase ten pounds of marijuana and a Glock firearm with a drum clip that would hold 50 rounds of ammunition. The appellant was to pay $18,000 for these items. The appellant brought his own prohibited firearm to the site of the transaction, a loaded .45 calibre handgun along with an extra loaded magazine.
[3] An altercation arose while the appellant and victim were in the vehicle. At trial, the appellant claimed that he was acting in self-defence when he killed the victim. The trial judge rejected this claim, finding that the appellant acted excessively in discharging his firearm eight times, with three shots hitting the victim. At the same time, the trial judge found that she could not determine precisely what led up to the shooting and, for that reason, could not be satisfied that the appellant had the requisite intent for murder. She found him guilty of the lesser and included offence of manslaughter.
[4] The appellant submits that the sentence imposed by the trial judge was unfit. We do not agree. This was a serious offence that called for a significant denunciatory sentence. The trial judge correctly identified a number of aggravating factors, including: the appellant’s criminal antecedents; his history of violence and firearms offences; his continuing involvement in the drug trade; and the fact that, at the time of the offence, he was bound by a lifetime firearms prohibition. Of further significance was the fact that the offence took place in a busy plaza frequented by members of the public. The appellant fired eight shots in a public place, leading the trial judge to observe it to be a miracle that no one in the area was hit by one of the bullets.
[5] The appellant’s primary submission is that the trial judge erred in principle by failing to give effect to the failed claim of self-defence. We are not persuaded that the trial judge erred in failing to expressly refer to the failed self-defence claim as a mitigating factor. The extent to which a failed self-defence claim will mitigate sentence will depend on the factual circumstances. In this case, the failed defence did not significantly reduce the appellant’s degree of moral blameworthiness. The appellant brought a loaded gun to the transaction and had to anticipate the possibility of violence. As found by the trial judge, he produced the firearm while in the vehicle, thereby escalating any dispute that might have been in progress. In these particular circumstances, we do not agree that the failed claim of self-defence had a mitigating impact on the sentence.
[6] Finally, we observe that the trial judge reduced the sentence from one of 15 years to one of 13 years in recognition of the harsh conditions experienced by the appellant during his pre-sentence custody, including during the time period of the COVID-19 pandemic. Counsel for the appellant acknowledged that this was a discretionary determination, only reviewable in the event that there was an error in principle leading this court to sentence the appellant afresh. Having found no error, we need not address this issue.
[7] In short, we see no error in the trial judge’s reasons for sentence, which are entitled to deference on appeal. Nor is the sentence unfit, given the gravity of the offence and the moral blameworthiness of the offender.
[8] Accordingly, while leave to appeal sentence is granted, the appeal against sentence is dismissed.
“S. Coroza J.A.”
“L. Favreau J.A.”
“R. Pomerance J.A.”