Court of Appeal for Ontario
Date: 2018-03-06 Docket: C64436
Judges: Rouleau, Huscroft and Fairburn JJ.A.
Between
Her Majesty the Queen Appellant
and
Yili Yang Respondent
Counsel
Kathleen Farrell, for the appellant
Mark Ertel, for the respondent
Heard and released orally: March 6, 2018
On appeal from: the conviction entered on March 23, 2017 and the sentence imposed on September 20, 2017 by Justice Matthew C. Webber of the Ontario Court of Justice, sitting without a jury.
Reasons for Decision
[1] The respondent was found guilty of careless use of a firearm under s. 86(3) of the Criminal Code. He received a conditional discharge. The Crown appeals against the conditional discharge and asks that a suspended sentence with probation be substituted in its place.
[2] In our view, a conditional discharge was a demonstrably unfit disposition in the circumstances of this case.
[3] The respondent was a licenced gun owner. While intoxicated late one evening, he fired a semi-automatic restricted 45 caliber Sig Sauer firearm inside of his apartment. He discharged three bullets. One of the bullets penetrated his neighbour's apartment. The bullet came to rest in the living room area, next to where the neighbour's child's toys were stored. As the trial judge said, these actions were about "as careless as one can imagine" and could "easily have caused immeasurable tragedy".
[4] The sentencing judge erred in placing insufficient weight on the primary sentencing principles of general deterrence and denunciation. The trial judge also erred in using the fact of the appellant's intoxication as a mitigating factor, when in fact it was a significant aggravating factor in this case.
[5] There were numerous aggravating factors involved, including the multiple shots fired and the inherent dangerousness of the respondent's conduct, which could have had catastrophic results.
[6] In these circumstances, a conditional discharge was not available. Although we are aware of the immigration implications arising from a conviction in this matter, these consequences cannot operate to allow the imposition of an unfit sentence: R. v. Pham, 2013 SCC 15, at paras. 14, 18.
[7] In light of these reasons, it is unnecessary to address the other grounds of appeal.
[8] The appeal is allowed.
[9] Having regard to the trial judge's finding that 5.5 months was served in pre-sentence custody, a suspended sentence is appropriate. We substitute the conditional discharge with a conviction and impose a suspended sentence. The terms of probation and other orders imposed by the trial judge remain unchanged.
"Paul Rouleau J.A." "Grant Huscroft J.A." "Fairburn J.A."
