Court of Appeal for Ontario

Date: 2023-08-17 Docket: COA-22-CR-0388

Before: Hourigan, Brown and Monahan JJ.A.

Between:

His Majesty the King Appellant

and

Ali Showbeg Respondent

Counsel: Lilly Gates, for the appellant Ricardo Golec, for the respondent

Heard and released orally: August 16, 2023

On appeal from the sentence imposed on November 8, 2022 by Justice Howard I. Chisvin of the Ontario Court of Justice.

Reasons for Decision

[1] This is a Crown appeal from sentence. The respondent was convicted of possession of a loaded prohibited firearm (s. 95) and two counts of breaching a weapons prohibition order (s. 117.01(1)). He was arrested while driving in downtown Toronto. While in transit to the police station, he unsuccessfully tried to discard a loaded firearm he had concealed in his pants. The police cruiser's in-car camera video depicts the respondent's attempt to hide the firearm from the officers. Two lifetime firearm prohibition orders bound the respondent at the time of the offence. He explained that he was shot in 2015 and carried the firearm for self-defence for three months before his arrest.

[2] At sentencing, the Crown sought a global sentence of ten years: eight years for the s. 95 offence, and one year for each breach offence, to be served consecutively, less three years’ credit. Defence counsel sought five years and three months’ imprisonment, less three years and nine months’ credit. The sentencing judge imposed a six-year sentence, less three years and 9.5 months’ credit for the s. 95 offence and one year concurrent for each s. 117.01(1) offence. He noted that the respondent has a criminal record with two prior s. 95 convictions and drug offences but observed there was a gap in reoffending for over a decade. The sentencing judge also accepted that the respondent possessed the firearm for protection and that he did not intend to harm the officers.

[3] The Crown seeks leave to appeal this sentence, arguing that the sentence imposed is demonstrably unfit and falls below the range that this court has established. Further, it asserts that the sentencing judge made three additional errors: (1) he imposed concurrent sentences for offences that should have been served consecutively; (2) he failed to give effect to pertinent aggravating factors; and (3) he failed to impose a mandatory lifetime firearm prohibition. The Crown submits that ten years’ imprisonment is an appropriate sentence and seeks a mandatory firearm prohibition order.

[4] The respondent concedes that a mandatory lifetime firearm prohibition was required under s. 109(1)(b) of the Criminal Code. Therefore, that order will issue.

[5] Regarding the issue of concurrent sentences, the sentencing judge did not explain why he was departing from the general rule that separate violations of prohibition orders require consecutive sentences to ensure firearm prohibition orders do not go unpunished. As stated by this court in R. v. Claros, 2019 ONCA 626, at para. 53:

More importantly, the fact that two offences relating to the breach of a prohibition order occur in close succession, or even at the same time, is not a basis for imposing concurrent sentences. The principle that such offences should be served consecutively is intended to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. This principle also recognizes the fact that the breach of a prohibition order is different behaviour than the associate offences, engaging different social interests.

[6] As an alternative to consecutive sentences, jurisprudence from this court has suggested that breaches of firearm prohibitions can be taken into account as a significant aggravating factor when fixing the appropriate sentence on a firearm charge. In these circumstances, a concurrent sentence on a charge of breach of a prohibition order may be imposed: R. v. McCue, 2021 ONCA 273, at para. 22. However, in this case, the sentencing judge did not consider the breaches of the weapons prohibitions as aggravating factors in his sentencing analysis. He simply imposed the sentences concurrently without providing any reasons for doing so. This was an error in principle. We order that the two s. 117.01(1) sentences be served consecutive to each other and the s. 95 sentence.

[7] Regarding the submission that the sentencing judge failed to give effect to pertinent aggravating factors, we are not persuaded that he made an error justifying interference from this court. While his review of the aggravating factors could be categorized as cursory, the sentencing judge considered the aggravating factors the Crown advanced. It was for him to balance the aggravating and mitigating factors.

[8] The applicable range is eight-ten years for a third s. 95 offence. The sentencing judge did not provide any reason to drop below that range. However, given our adjustment to the sentences for breaches of the weapons prohibitions, the adjusted global sentence is within a reasonable range.

[9] In the result, leave to appeal sentence is granted. The sentence appeal is allowed in part. A lifetime firearm prohibition pursuant to s. 109(1)(b) of the Criminal Code is imposed. In addition, the one-year sentences on the two s. 117.01(1) convictions shall be served consecutive to each other and the s. 95 sentence.

“C.W. Hourigan J.A.”

“David Brown J.A.”

“P.J. Monahan J.A.”