R. v. Bajraktari, 2024 ONSC 4536

Court File and Parties

COURT FILE NO.: CR-30000426 DATE: 2024-08-16 ONTARIO SUPERIOR COURT OF JUSTICE

Between: HIS MAJESTY THE KING – and – ILIRJON BAJRAKTARI Defendant

Counsel: Garrity, for the Crown Christian Pearce, for Mr. Bajraktari

HEARD: June 7 and August 8, 2024

Judgment on Sentence

P.T. SUGUNASIRI, J.

1On April 8, 2024, Mr. Bajraktari was found guilty of possession of a loaded restricted firearm contrary to ss. 95(1) of the Criminal Code. Mr. Bajraktari’s case was determined by his Charter application to exclude the firearm found in a satchel in the back seat of a vehicle in which he was a back seated passenger. On March 11, 2024, I dismissed his application.

2The matter went over several times to allow time for a pre-sentence report and other issues. Ultimately the first sentencing hearing proceeded on June 7, 2024. By that time Mr. Bajraktari had been in custody for new charges since April 17, 2024. He asked to have four months of real time custody before he was sentenced in this matter so that he could apply that time served against any sentence I impose. Mr. Bajraktari waived his section 11(b) rights for this four-month period.

3Mr. Bajraktari appeared for sentencing on August 8, 2024, but the sentencing hearing continued instead because there were insufficient materials from the first hearing and the court had further questions for the parties. In particular, the court required clarification on what Mr. Bajraktari was seeking. He seeks two years less a day to be served as a conditional sentence in the community, with half the term under house arrest an the other under curfew, and credit for pre-sentence custody for the new charges. He seeks this in part to avoid deportation to Italy by operation of s. 36 and s. 64 of the Immigration and Refugee Protection Act: see Quigley, J. in R. v. Moses, 2022 ONSC 332, [2022] O.J. No. 3604 at paras. 37-41.

4The Crown seeks three years in the penitentiary less pre-sentence custody, a firearms prohibition order pursuant to ss. 109(1)(d) and (2) of the Code, a DNA data banking order under s. 487.051(3) of the Code, and an order of forfeiture of the seized firearm, magazine, and ammunition under s. 491 of the Code.

5For the reasons that follow, I sentence Mr. Bajraktari to two years less a day to be served in the community under strict house arrest followed by a curfew, one year of probation, and the ancillary orders requested by the Crown.

The Facts:

6The Crown asserted that the parties rely on the “facts” as found in the Charter application:

a. Mr. Bajraktari was a back-seated passenger in a Nissan parked in front of an Ultramar gas station store on October 31, 2021;

b. The police ultimately detained Mr. Bajrkatari for an investigation into potential Liquor Licence Act violations after finding an open bottle of wine in the front passenger footwell;

c. The police removed Mr. Bajraktari from the vehicle; and

d. Moments later they located Glock 45 handgun loaded with 27 rounds of 9 mm bullets in a Tommy Hilfiger satchel located at Mr. Bajraktari’s feet.

7Mr. Pearce adds that Mr. Bajraktari admits to constructive possession of the firearm. The DNA analysis of the firearm estimates that it is greater than one trillion times more likely that the DNA originates from Mr. Bajraktari and two unknown people than if they originate from three unknown people unrelated to him. In other words, the DNA result shows a very strong match with Mr. Bajraktari.

Mr. Bajraktari’s circumstances

8I have the benefit of a pre-sentence report, his bail history, and a calculation of his time in custody for this charge as well as for a new set of charges. Ms. Kwok prepared a pre-sentence report and interviewed Mr. Bajraktari, his mother, his brother Norga, and a representative from his last place of work.

Family History

9Mr. Bajraktari is 21 years old. At the time of the offence, he had just turned 19. He has no criminal record but has some outstanding new charges. He was born in Bologna, Italy to Albanian parents. He has two older brothers who are 10 and 12 years older than him. At age seven, Mr. Bajraktari’s parents divorced. At age eight, he emigrated to Canada with his mother. His adult brothers joined them two years later.

10Mr. Bajraktari recalls an unhappy childhood due to conflict between his parents. His father was eventually diagnosed with schizophrenia and his mother became the sole breadwinner as a chef. He witnessed verbal, physical and emotional abuse by his father against his mother culminating in his father’s arrest and deportation to Albania. His father currently lives in a retirement home in Albania with no contact with Mr. Bajraktari. The family has no ties in Mr. Bajraktari’s home country of Italy nor his mother’s country of Albania, save and except for his uncle. His mother indicated that their small social network and support system is here in Canada.

11Mr. Bajraktari grew up in the Dufferin and Dupont Street area which he characterizes as a bad area. His mother worked as a chef but sometimes had to rely on welfare to support the family. When Mr. Bajraktari was 16 the family moved to a basement apartment on Midland Avenue in Scarborough. They have been living in North York for the past 18 months where his mom has secured employment. Mr. Bajraktari is close with his mother and has become closer to his brothers. One lives in Toronto with his wife and the other lives in Sweden, with visits to Toronto every now and then.

12Mr. Bajraktari and his mom are permanent residents who just became eligible for citizenship.

Schooling

13Mr. Bajraktari is three credits short of obtaining his Ontario Secondary School Diploma. Soon after he arrived in Canada, he took ESL classes. He then attended St. Mary Catholic Academy until he was expelled in grade 11 after a physical altercation with another student. By that time, he had started to lose interest in school because of bad peer associations and marijuana abuse. Mr. Bajraktari also states that he was bullied at school for his lack of English.

14After leaving St. Mary’s, he continued his education at Monsignor Fraser College in downtown Toronto at first and then at the Scarborough campus when the family moved there. His marks range from 50’s to 80’s. He was attending school there regularly until his incarceration on April 17, 2024 for the new set of charges.

Employment

15At aged 14 Mr. Bajraktari worked after school as a cook at a supermarket. He did that in grades nine and ten. At age 17, he secured a construction job through his mom’s connections but quit after six months because he was not paid. This was during the Covid-19 pandemic. Approximately two years ago, Mr. Bajraktari was hired at Marche Leo’s market and worked there until his incarceration in April of this year. Ms. Kwok spoke with the director of this market. She said that Mr. Bajraktari was a team player and a wonderful cook. She indicated that she would rehire him should he be released from custody.

Friends and associations

16Mr. Bajraktari is described by his family and the officer conducting the pre-sentence report interview as a respectful and pleasant person. His brother Norga indicates that he would never use a gun to commit crimes or pull its trigger to hurt others. Mr. Bajraktari states that he has been indiscriminate in choosing his friends because he was bullied and wanted to fit in. He has no close friends and only acquaintances. He ended up hanging around bad people. His mother was shocked to hear about his arrest. He is remorseful for continuing to associate with the co-accused and insists that the gun was not his. One of his co-accused was his schoolmate since they were ten years old, and they kept in touch after he moved to Scarborough. When downtown, he recalled meeting gang members and had an OK relationship with them but also kept a healthy distance.

Ms. Kwok’s recommendations

17Ms. Kwok states that Mr. Bajraktari’s strength lies in the support from his family and his motivation to work. She believes that if he is released into the community, he would benefit from counselling that addresses issues regarding pro-criminal attitude, association with negative peers and substance use. Ms. Kwok also notes that it might be helpful for him to explore the impact of family violence on him and refers to the Canadian Training Institute and trauma specialists at Telus health as possible free of charge providers.

Principles of Sentencing

18The fundamental principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The stated purpose of sentencing in section 718 is to protect society and to contribute, along with crime prevention initiatives, to a respect of the law and the maintenance of a just, peaceful and safe society. A just sanction will serve one or more of the objectives identified in ss. 718 (a)-(f) which are listed as:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

19Sentencing must be individualized to Mr. Bajraktari which means that I must blend and prioritize these objectives to properly reflect the seriousness of Mr. Bajraktari’s offence and his responsibility. A just sanction and a proper blending of these objectives is one that is proportionate to the gravity of the offence and the degree of responsibility of the offender: Morris at para. 59, s. 718.1 of the Code. The sentence I impose must reflect the circumstances of the offence and Mr. Bajraktari’s attributes: see also R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. Sentencing is an individualized process: R. v. Lacasse, 2015 SCC 64, [2015] 2 S.C.R. 1089.

20In addition, s. 718.2 imposes the parity principle (similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances); the restraint principle (an offender should not be deprived of liberty if less restrictive sanctions are appropriate; and the restraint principle as applied to incarceration (all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with harm done to victims and community should be considered).

The appropriate sentence is two years less a day

The gravity of the offence is significant

21I agree with the Crown that possessing a loaded firearm is a serious offence. Protection of the public must be among the predominant sentencing objectives. The sentence I impose must denounce the dangerous conduct and deter Mr. Bajraktari from this conduct in the future. In this case the firearm was in a vehicle at a gas station on Halloween night with other members of the public going in and out of the store. Denunciation and deterrence, even in the face of significant mitigating factors, must be of paramount consideration when it comes to firearm offences because of the plague of gun violence in the city and the profound consequences firearms have on community safety: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233; R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19; R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52.

22That said, a conditional sentence can be appropriate in a case involving firearms where the circumstances suggest that the competing objectives can be satisfied through a sufficiently punitive conditional sentence to give effect to denunciation and deterrence. Specifically, in R. v. Desmond Robinson, 2022 ONCA 369 at para. 13, the Court of Appeal for Ontario made it clear that conditional sentences can be appropriate in firearm offences:

We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge’s reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one: Morris, at paras. 124-28, 180-81.

Mr. Bajraktari bears responsibility for the firearm in the vehicle

23Mr. Bajraktari indicated to Ms. Kwok that the firearm was not his and that he held it because he thought it was cool. This is untested hearsay evidence that I take with a grain of salt. The firearm was in a satchel between Mr. Bajraktari’s feet. At some point he chose to have a loaded firearm in a satchel between his feet. Despite what he told Ms. Kwok, I infer that he contemplated situations where he would use the firearm for its intended purpose, if necessary. The threat to the public of his conduct, is very clear and is an aggravating factor.

24In addition to his statements to Ms. Kwok about the firearm, I consider Mr. Bajraktari’s moral blameworthiness in assessing his degree of responsibility in the context of his background, life experiences, and personal characteristics: Morris, at para. 88. Nothing in his background serves as an excuse for his criminal conduct. He made poor choices, had negative associations, but must meet the serious consequences of those choices and associations. Mr. Bajraktari’s status as an immigrant whose family struggled financially, and his yearning for acceptance wherever he could get it, mitigates some of his moral blameworthiness but not significantly. I will discuss some other mitigating factors further in my decision.

25As explained by Doherty J.A. in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82, s. 95 offences apply to a wide range of conduct:

At one end of the spectrum stands the outlaw who carried a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person’s conduct may well pose little, if any, risk to others.

26In my view, Mr. Bajraktari falls between the two extremes. While his conduct is clearly not in the nature of a regulatory offence, he is also not purely an “outlaw” who carried a firearm as a tool of his criminal trade. I do not know why he chose to have the firearm in a satchel between his feet. I have no evidence of any other criminality ascribed to him. Therefore, while I am guided by the caselaw which often cites a 3-5 year penitentiary range for s. 95 offences, I consider that lower sentences in the upper reformatory or lower penitentiary range have been imposed in cases in the middle of the spectrum, where the firearm is not possessed in connection with other criminal activity: R. v. Smickle, 2013 ONCA 678, 2014 ONCA 678, 304 C.C.C. (3d) 371, at para. 30; R. v. Johnson, 2022 ONSC 2688, at para. 38.

27I locate the appropriate sentence by considering the aggravating and mitigating factors. I also consider the impact of a sentence on Mr. Bajraktari’s status in Canada: Morris supra. The clear aggravating factor is that Mr. Bajraktari possessed a loaded firearm in a vehicle parked in a place frequented by the public.

28In mitigation, Mr. Bajraktari is a first-time offender and is young. He has the strong support of his family and has shown that he can live a pro-social life including returning to school to complete high school and working as a cook at a market where he is welcome back. He appears to recognize that he must make better associations in his social life.

29He also conceded the Crown’s case after receiving the outcome of the Charter application. While not the same mitigating value as a guilty plea, the concession nevertheless saved the court the time and resources of having a full trial on the matter. Moreover, while Mr. Bajraktari was not successful on his s. 8, 9 and 10 application, it was not meritless. I consider this factor to have some mitigating value on sentence.

30Mr. Bajraktari also asks me to consider time spent on restrictive bail conditions as per R. v. Downes (2006), 79 O.R. (3d) 321 (Ont. C.A.) at para. 33. This is a mitigating factor which must be considering in arriving at a fit sentence for him: R. v. Joseph, 2020 ONCA 733; R. v. C.C. 2021 ONCA 600; at para. 4. Mr. Bajraktari was released on bail on November 1, 2021. He was on house arrest for 10 months. He was on strict curfew, Monday to Friday from 9:00 p.m. to 7:30 a.m. and, Saturdays and Sundays from 6:00 p.m. to 7:30 a.m. for 19 months with no incident. I find this time spent to be a mitigating factor.

31As was the case in Moses supra, there are limited aggravating factors and many mitigating factors in this case that warrants a more lenient sentence than the three-year prison term the Crown seeks. The important sentencing goals of denunciation and deterrence must be proportionate. In this case, the proportionate sentence is two years less a day.

32Should this sentence be served with strict conditions in the community? Yes. In so concluding, I consider ss. 742.1(a) of the Code which sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. The second prerequisite is that a conditional sentence must be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”

33I am not concerned that Mr. Bajraktari is a danger to the public. There are no criminal antecedents, no evidence of criminality associated with possession of the firearm, nor known association with gangs. He is not a violent offender, and he is on a path towards completing his high school education and working as a cook or in construction. The Supreme Court of Canada held in R. v. Proulx, 2000 SCC 5, [2001] S.C.R. 61, at para. 79 and restated in R. v. Ali, 2022 ONCA 736, at para. 30, that a conditional sentence, in addition to being more effective than incarceration in achieving goals of rehabilitation, is also a punitive sanction capable of achieving denunciation and deterrence. I find that Mr. Bajraktari is ripe for rehabilitation and that strict house arrest is sufficiently punitive for a young man in his circumstances to denunciate his conduct and deter him from future offences. He has strong support from his family and has a job waiting for him. He understands that he must choose his friends better. His family is also on the brink of becoming Canadian citizens. As in Moses at para. 55, a conditional sentence maintains Mr. Bajraktari’s right to appeal a removal order. In my view, there is still time and opportunity for Mr. Bajraktari to be rehabilitated by strict supervision in the community.

Disposition on sentence:

34I sentence Mr. Bajraktari to a sentence of two years less a day to be served in the community. The Crown and Mr. Bajraktari have agreed to the following terms:

a. The mandatory provisions of s. 742.3 of the Code shall apply;

b. Mr. Bajraktari shall live at an address to be provided to the supervisor and not change that address without obtaining the consent of the supervisor in advance;

c. He shall be under house arrest for the first half of the conditional sentence and shall only leave the house:

i. To report the CS supervisor;

ii. Between 1 p.m. and 4 p.m. on Saturdays to acquire the necessities of life;

iii. For any medical emergencies involving him or his immediate family

iv. For going directly to and from and while at employment. He must demonstrate to the satisfaction of the Conditional Sentence Supervisor his place and schedule of employment; and

v. Any other purpose as long as there is permission in writing in advance from CS supervisor.

d. For the remaining part of the sentence, Mr. Bajraktari shall be on curfew and always remain in his residence or on the property of his residence, 7 days a week between the hours or 10:00 pm and 6:00 am at an address approved by the CS supervisor and not change that address without obtaining the consent of the supervisor in advance except:

i. To report the CS supervisor;

ii. For any medical emergencies involving him or his immediate family.

e. Mr. Bajraktari shall not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Kaziya St. Louis, Maxim Shraibman, Alyssa Berry, Anton Grepsa;

f. He shall not be within 200 metres of any place where he knows any of Kaziya St. Louis, Maxim Shraibman, Alyssa Berry, Anton Grepsa to live, work, go to school, frequent or any place he knows the persons to be EXCEPT for required court attendances; and

g. He shall not possess any weapon(s) as defined by the Code.

35Mr. Bajraktari has spent a total 124 days of pre-sentence custody if considering the time in custody for the new set of charges. The Crown agrees that the charges are sufficiently connected as per the test in R. v. Barnett, 2017 ONCA 897, [2017] O.J. No. 6102 to apply the pre-sentence custody time for the new charges, as a credit against his sentence for this conviction. Mr. Bajraktari is entitled to an enhanced Summers credit of 1:1.5 for the 124 days; R. v. Summers, 2014 SCC 26; [2014] 1 S.C.R. 575. The Crown did not oppose. This leaves a remaining 20 months of the sentence, with 10 months to be served under the house arrest terms, and the remaining time under the curfew terms.

36Mr. Bajraktari requested an additional six-month credit to recognizes the harsh terms of his bail which included house arrest and then a curfew: Downes, supra. I considered those conditions as a mitigating factor. I decline to give further credit. I considered this time as part of the matrix of factors that led me to reject the Crown’s penitentiary proposal.

37At the conclusion of his conditional sentence, he will be placed on probation for one year. In addition to the statutory terms of probation found in section 732.1(2), he shall:

a. report to his probation officer within two working days of the start of the probation period and thereafter as directed;

b. reside at an address approved by the probation officer in writing;

c. not possess any firearms or weapons as defined by the Code;

d. not be in contact with Kaziya St. Louis, Maxim Shraibman, Alyssa Berry, nor Anton Grepsa; and

e. seek counseling as suggested by Ms. Kwok and as directed by his probation officer, and sign releases to monitor his participation and progress in any counselling that he attends.

38Finally, Mr. Bajraktari did not oppose the requested ancillary orders noted at paragraph 4 of this decision and I make those orders. I have signed the firearm forfeiture order that Ms. Garrity submitted to my assistant.

39The Crown has withdrawn the remaining counts on the indictment.

40Mr. Bajraktari, carrying a loaded firearm in a vehicle is a serious offence. There is only one purpose for a restricted firearm. There is nothing about a firearm that is “cool”. Luckily, no one got hurt. I hope your brother is right in saying that you would not shoot anyone. You have expressed to Ms. Kwok that you need to make better choices. Bullied or not, you must try to find validation from your family and those not involved in criminality. You have counselling choices to address underlying issues that you may have because of witnessing your dad’s violence. I believe this is a crossroads for you and I hope you choose the right path; because if you return on a charge like this and are found guilty, the Crown will have a stronger case for a penitentiary sentence and I am not sure the next judge will be so lenient. Good luck to you sir.

P.T. Sugunasiri J.

Released: August 16, 2024