Court of Appeal for Ontario

Date: 2025-05-26
Docket: COA-24-CR-1021
Coram: Paciocco, George and Wilson JJ.A.

Between:
His Majesty the King (Respondent)
and
Michael Katz (Appellant)

Appearances:
Alan D. Gold and Ellen C. Williams, for the appellant
Patrick Quilty, for the respondent

Heard: May 15, 2025

On appeal from the sentence imposed on October 8, 2024 by Justice Michael Waby of the Ontario Court of Justice.

Reasons for Decision

Background and Sentence

[1] Michael Katz seeks leave to appeal the 2-year sentence that was imposed after he pled guilty to possession of a loaded firearm, assaulting a police officer with a weapon, impaired operation of a motor vehicle, and failing to remain at the scene of an accident. This was the net sentence imposed after he was given 6 months’ combined Summers credit (for time served), Duncan/Marshall credit (for the harsh conditions of pre-sentence incarceration) and Downes “credit” (for the punitive terms of release), from the global 30-month sentence that the sentencing judge found to be fit.

Leave to Appeal and Dismissal

[2] We would grant leave to appeal the sentence but deny the appeal. We see no basis for interfering with this sentence.

Aggravating Circumstances

[3] Although Mr. Katz expressed remorse for his conduct, was behaving bizarrely at the time from the effects of consuming marijuana, had no prior criminal record, and had the support of his family, this sentence was imposed primarily because the circumstances of the offences he committed were extremely aggravating. While impaired, Mr. Katz, who was 35 years old at the time, drove a motor vehicle. He collided with a parked car and then fled the scene after engaging in hostile exchanges with bystanders, both at the time of the accident and again when a witness confronted him after following him to his car before he made good his escape.

When the police arrived at his place of residence, Mr. Katz sought unsuccessfully to conceal his identity before engaging in a protracted struggle with the officers, ultimately pulling a loaded firearm during that struggle. The firearm discharged on a major Toronto thoroughfare during the daytime. Fortunately, no one was hit by the bullet. Although Mr. Katz was licensed to possess the firearm, he was not licensed to carry it, yet he did. Despite being tasered after he was disarmed, Mr. Katz managed to secure the taser which he then attempted to deploy against an officer. Two other police officers were injured during the confrontation before he was ultimately restrained. The risks arising from Mr. Katz’s conduct are obvious.

Conditional Sentence Submission

[4] We do not accept Mr. Katz’s submission that the sentencing judge erred in principle in rejecting the conditional sentence Mr. Katz proposed. The sentencing judge did not suggest that conditional sentences are never suitable for the offences charged, nor did he disregard relevant authorities. He was explicit when concluding that the charges could not attract anything less than a penitentiary sentence that he was speaking of “the circumstances of this case”. His conclusion that a reformatory sentence or conditional sentence would not achieve the denunciation and deterrence “clearly required in this case” was open to him.

Mitigating Effect of Mental State

[5] We are not satisfied that the sentencing judge inappropriately “neutralized” the mitigating effect of Mr. Katz’s mental state at the time of the offence. The sentencing judge did not accept much of the psychiatric evidence, finding that the circumstances of this offence were not unique, and he determined that Mr. Katz maintained responsibility for his intoxicated condition and made the choices to behave as he did. These factual conclusions were open to him. The judge was aware of Mr. Katz’s bizarre behaviour and intoxication. And as the Crown emphasized in submissions, to the extent that this may have reduced Mr. Katz’s moral fault given that he was acting out of character, the impairment while carrying a loaded weapon and during his confrontation with the officers increased the seriousness of his criminal conduct. We cannot, even bearing in mind the length of the sentence, conclude that the sentencing judge failed to consider Mr. Katz’s state of mind, or that he gave it improper effect.

Pre-Sentence Report

[6] Although the sentencing judge did not expressly address the pre-sentence report, it is evident from his decision that the sentencing judge was intimately familiar with Mr. Katz’s circumstances. There is no basis to find that he disregarded it.

Mitigation for House Arrest Conditions

[7] Finally, the sentencing judge was entitled to give the mitigating effect that he did to the punitive house arrest conditions Mr. Katz endured pending his sentencing, notwithstanding that there are cases where judges have given greater mitigation. The mitigating effect of the conditions of release pending sentence is not a formulaic determination but a discretionary one for the sentencing judge to make. Again, we see no basis for intervening.

Disposition of Appeal

[8] Mr. Katz’s appeal is dismissed.

Driving Prohibition Order

[9] The Crown has asked us to set aside Mr. Katz’s 18-month driving prohibition, which the sentencing judge made “consecutively to your term of imprisonment”, and to substitute a three-year driving prohibition, backdated to the date of sentencing. The Crown makes this request because of its position that absent a statutory exception that is not material in this case, a driving prohibition must begin on the date it is made and must include “the entire period to which the offender is sentenced to imprisonment”: Criminal Code, ss. 320.24(5)-(5.1); R. v. Boily, 2022 ONCA 611, para 26. The prohibition order must therefore be set aside so that its start date can be corrected.

[10] There is also an outstanding issue of whether the reference in s. 320.24(5) to “the entire period to which the offender is sentenced to imprisonment” refers to the global sentence that is imposed, or only the sentence for the driving offence. The Crown has not asked us to resolve this issue on the record before us and we do not purport to do so. The Crown is simply asking that we substitute the prohibition that it requests, which would unquestionably be a lawful order. Mr. Katz agrees with this request because he will benefit from this order, which will reduce the length of the prohibition the sentencing judge imposed.

[11] We therefore set aside the 18-month consecutive driving prohibition and substitute a 3-year driving prohibition, dated to commence on the date that Mr. Katz was initially sentenced.

David M. Paciocco J.A.
J. George J.A.
D.A. Wilson J.A.