Citation: R. v. Carbone, 2012 ONCJ 22

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

FRANCESCO CARBONE & ANTONIO CARBONE

Before Justice D. P. Cole

Heard on July 11, December 12, 2011

Reasons for Judgment released on January 12, 2012

R. Butler; S. Hobson .............................................................................................. for the Crown

B. Greenspan ....................................................................... for the accused Francesco Carbone

L. Strezos; S. O’Connor …………………………………………….for the accused Antonio Carbone

COLE J.:

ISSUE

[1] What is the appropriate sentence to be imposed on offenders who possessed prohibited firearms and ammunition in a case where the Crown has elected to proceed by way of summary conviction.

FACTS

[2] The accused had been involved for several years in the highly governmentally-regulated business of importing and distributing tobacco products into and across Canada. Officials of the Special Investigations Branch of Ontario Ministry of Revenue became concerned that one of the accused’s companies had breached Ontario’s Tobacco Tax Act by either not filing or incompletely filing returns to the Minister of Finance over a 4 ½ year period. These officials prepared an affidavit to this effect, which was used as the basis for a search warrant issued by a Justice. That warrant was executed at the company’s office on December 8, 2009. Following normal procedures, the Ministry of Revenue searching officers enlisted the assistance of uniformed Toronto Police officers during the execution of that warrant. During a search of the premises the prohibited firearms that are the subject of these charges were discovered by the police officers.

[3] With the consent of Crown counsel I was told during submissions that the explanation for the possession of these prohibited firearms is that some 18 months prior to the date the search warrant was executed both accused had been “seriously threatened” by some person or persons. It is agreed between counsel that the accused had promptly reported these threats to the police, but that the police had been unable to do very much about their complaints. Because they were frightened by these threats, the accused had – no doubt illegally – purchased two handguns and ammunition, which they kept in their offices. Antonio Carbone’s unloaded .32 calibre revolver was located in a locked filing cabinet beside his desk; the ammunition was stored in a separately locked safe in a different drawer of the same filing cabinet. Francesco Carbone’s loaded 9 mm. semi-automatic handgun was found in a backpack located under his office desk.

[4] Counsel were in agreement that the Ministry of Revenue’s investigation left much to be desired. From what I was told it certainly appears that the officials who had sought and obtained the search warrant had – wittingly or not - placed incorrect and inaccurate information before the issuing Justice; had the issue been litigated, counsel were generally in agreement that the search warrant might well have found to be so defective that it might have been ordered quashed. (The guilty pleas have been entered because experienced defence counsel have concluded, following R. v. Grant, that the weapons and ammunition would be admissible in evidence under s.24(2) of the Charter).

[5] I was further told by defence counsel – supplemented by a letter from the accused’s surety – that the laying of these charges had a devastating effect on the brothers’ longstanding tobacco business. As Ministry officials made further inquiries, and as publicity about their regulatory and criminal charges became known within their industry, many of the Carbone’s long-time suppliers and customers soon declined to deal with them. Despite the fact that it was ultimately established that the accused had at all times fully complied with all regulatory filing and other obligations, it was too late. The letter from their surety describes that “their businesses were destroyed causing the loss of millions of dollars”.

THE POSITIONS OF THE PARTIES

[6] Both Crown counsel who appeared at different stages of this proceeding took the position that the Crown election to proceed summarily sufficiently acknowledged the somewhat unusual nature of this case, in that (a) the Crown accepted that the firearms had not been used for any nefarious purpose (nor, from the location where they were discovered did it appear that the accused were planning to transport them to conduct some illegal activity), and (b) that the summary election meant that the accused are not exposed to the possibility of a minimum mandatory sentence of three years imprisonment. Despite the mitigating factors identified by defence counsel, Crown counsel were of the view that this case is not so unique that a sentence of actual incarceration should not be imposed. Given the public interest in deterrence and denunciation of those who go out and illegally obtain prohibited firearms, both Crowns proposed that the maximum available custodial sentence of one year actual incarceration should be imposed.

[7] Defence counsel advanced alternative propositions. Their principal submission was that given the accused’s excellent professional standing and outstanding personal contributions to the community, rather than incarcerating them, I should further the restorative aim of sentencing laid out in s.718 of the Code by suspending the passing of sentence and ordering them to continue to perform a large number of hours of community service. In the alternative, should I conclude that a suspended sentence would not sufficiently address the principles of sentencing I must consider, they proposed that a sentence in the intermittent range, followed by an order for the performance of community service hours, would adequately balance the principles of sentencing.

[8] (I should detail that during pre-plea Chambers discussions defence counsel inquired whether the imposition of lengthy conditional sentences in lieu of actual incarceration might be “in play”. I indicated to counsel that in the event I were to be persuaded that conditional sentences should be imposed, I would be highly unlikely to exercise my jurisdiction under s.742.3(1)(d) to allow them leave Ontario during the service of such a sentence. Because so much of the accused’s new business interests are located in the Dominican Republic, and because they travel across Canada and to the Caribbean very regularly, counsel indicated that they would not propose conditional sentences).

[9] Counsel were also in agreement (a) that a s.109(2)(b) order for life is mandatory in this case, and (b) that there should be orders for the forfeiture and destruction of the firearms and ammunition seized.

THE BACKGROUNDS OF THE ACCUSED

[10] Other than the criminal and regulatory charges laid arising from this incident, neither accused has any criminal record, nor has either been charged with any other offences. As previously indicated, any currently outstanding regulatory charges either have been or soon will be withdrawn. Francesco Carbone, age 44, has a Certificate in Marketing from Seneca College. He has been married for 12 years, and is presently the parent of one child. Antonio Carbone will be 37 years old in a few days. He has a Grade 12 education. He has been married for 11 years, and has children ages 10 and 6.

[11] Two lengthy letters were filed at the sentencing hearing. The first was from Mr. Andrew Pajak, who has been acting both as the brothers’ surety and as their new employer. (To demonstrate his continuing commitment to the Carbones, Mr. Pajak was present in court for the sentencing hearing). Mr. Pajak detailed that he has known both brothers as friends and businessmen for approximately 18 years. He describes them as “hardworking community focused men…[who] support their families and contribute to their community”. As their surety since they were charged, he has “seen their [tobacco] business collapse”. Given his friendship and his observations of their drive and acumen, he soon offered them employment with his company, whose “core…business is the development, manufacturing, leasing and sales of hardware and software driven kiosks and terminals for the hotel and leisure markets. My company, to which they are integral, delivers to Latin America state of the art electronic entertainment and gaming products”. He describes that “[s]ubstantial funds have been invested in the business, conservatively in excess of tens of millions of dollars…employ[ing] in excess of 500 people both here and in the Dominican Republic”.

[12] Mr. Pajak’s letter details that “The [Carbones] have poured their efforts and talent into [the business], allowing it to grow and develop faster than I originally conceived, both in terms of our product lines and consumer reach”. Francesco Carbone, Vice-President of Production, is described as the manager of “our product development, manufacturing, exportation and distribution in Canada and the Dominican Republic. His abilities and experience have greatly increased our production distribution while at the same time cutting our production costs…resulting in increased product quality, security and implementation”. Antonio Carbone, Vice President of Operations as well as Vice President of Customer Relations, is described as negotiating “several large contracts worldwide worth millions of dollars in revenue”. As the only fluent Spanish-speaker in senior management, Antonio is responsible for “continually address[ing] and maintain[ing] our relationship and contracts with our customers in order to continue to build the brand worldwide given our focus on Spanish hotel chains….[He] is integral to the negotiations of our current and pending contract[s]”.

[13] Mr. Pajak summarizes his view that these charges are “an isolated and uncharacteristic incident in their lives, for which they and their families have suffered substantial pain, stress, suffering and humiliation. Francesco and Antonio are honest and hardworking. They have always been so, as long as I have known them”.

[14] Mr. Pajak’s letter also includes examples of the Carbone’s social and financial contributions to their community. More details of these contributions are provided in the second letter filed in the sentencing hearing, that being from their pastor. Using words such as “upstanding”, “extraordinary” and “instrumental”, Rev. Michael Corcione offers numerous examples of their numerous and ongoing involvement in a variety of social causes through their church, such as “providing food vouchers, clothing and yes, even money…[to help] poor families in their struggles to cope with the ongoing challenges they encounter just to make ends meet”. Additionally, over the past eight years the Carbones have assisted in raising over $500,000 to establish and maintain an outreach program to Haitian refugees living in the Dominican Republic.

[15] Both letters further describe that some six years ago Francesco Carbone lost a 4 year-old child to a blood disease. Following that tragedy he and his wife decided to host an annual charitable event to benefit children hospitalized at the Hospital for Sick Children by collecting and delivering toys and games over the Christmas period. Rev. Corcione writes that Francesco and [his wife] Rose “never want a thank you nor do they want their generosity to be made public. They do this every year because they care about others and want to help those who may be suffering at this special time of year”. He summarizes: “Francesco and Antonio have been great supporters of our community and have always been very heavily involved in our church long before being charged with these offences. They have personally dedicated hundreds and hundreds of hours of service to our community’s efforts, oftentimes taking time away from their own families to be of service to others (even after their guilty plea in July 2011, Francesco and Antonio have continued, without hesitation, to dedicate hours of service to our community!)”.

[16] While both defence counsel presented this evidence of their client’s characters primarily to demonstrate ongoing and substantial commitment to volunteer service, in their submissions they fleshed out the last quoted sentence from Rev. Corcione’s letter by specifying that each of the accused has, since their guilty pleas, performed about 120 hours of community service work through the various activities described in the previous two paragraphs – apparently with more to be done by the sentencing date. They argue that I should consider combining these already existing “credits for good deeds” (to quote Mr. Greenspan’s submission) with the maximum amount – 240 hours - of court-ordered community service for each accused. They suggest that, given the particular circumstances of this case and the exemplary backgrounds of these accused, instead of imposing any sentence of imprisonment, which they say “is a measure of failure”[^1], I could and should attempt to further the “reparative justice” purpose of sentencing legislated in s.718(e) of the Code. In the alternative, they argue that if I cannot satisfy myself that the denunciatory purpose of sentencing cannot be achieved without some custody being imposed, their “credit for good deeds”, combined with a probationary term containing a court order that they each perform 240 hours of community service, should persuade me to reduce the custodial sentence down to the intermittent range (i.e. 90 days or less).

[17] I should also briefly add that this is not a case where either accused may claim any substantial pre-trial custody credit against the sentence to be imposed. Francesco Carbone spent one day in custody pending the granting of bail; Antonio Carbone spent three days in custody.

CASE LAW CITED BY DEFENCE COUNSEL

[18] In addition to the agreed deficiencies in the search warrant, Mr. Greenspan also made the point that given where the gun now admitted to belong to his client was found, there might well have been substantial triable issues regarding possession and ownership of the gun. Without citing any particular case law, he thus asks me to keep in mind that his client’s guilty plea in particular should be given considerable credit, both in terms of acceptance of responsibility, and for having saved the state the time and expense of a trial. Crown counsel accepted this for purposes of this sentencing hearing.

[19] Mr. Strezos first cited R. v. Kurkcuoglu [2010] B.C.J. No. 813, a case in which a Vancouver jewellery store owner was being robbed by three armed men, one of whom pointed a shotgun at the chest of the accused’s son, who worked in the store. The accused pulled out his gun and fired two shots into the ceiling to frighten off the robbers. He had no authorization and/or licence to have such a firearm, and eventually pleaded guilty to that charge. The trial judge registered a conviction and imposed a modest fine. As the Crown had proceeded summarily, the accused appealed by way of Summary Conviction appeal, seeking a discharge on the basis that he “could” lose various business licences were he to have “a criminal record” – presumably the Summary Conviction appeal Judge meant that the accused could lose his licence (and sustain other indirect penalties) if he were to have a conviction on his record. On appeal Morrison J. considered that the trial judge had erred in that she had taken too narrow a view of what comprises the public interest, particularly given “the exemplary character and generosity of the appellant and his contributions to the community”. A one-year conditional discharge was substituted. Mr. Strezos was quick to concede that each case turns on its particular facts, but made the general point that if a conditional discharge could be imposed where a firearm was actually used (though the accused did not actually plead to any offence involving use of the firearm), that provides some precedent that I should consider. (In fairness, he quite properly conceded that this being a decision from another province, it has even less precedential value in Ontario).

[20] Of more relevance – albeit not in a sentencing context – Mr. Strezos next cited R. v. Stevens 2011 ONCA 504, [2011] O.J. No. 3164, a July 2011 decision of the Ontario Court of Appeal. In that case the court considered the admissibility into evidence of guns discovered in an apartment by sheriff’s officers enforcing an apparently defective eviction order. In balancing the various Charter s.24(2) factors as interpreted by the Supreme Court of Canada in R. v. Grant, speaking for the court Armstrong J.A. said: “While this court has often clearly stated that gun crime is very serious, it is usually in reference to gun violence. Gun safety is clearly very important, but the offences of careless storage and ammunition are far less serious than violent crimes involving guns” (para. 62; emphasis added). Given the actual penalty imposed at trial in that case (suspended sentence and twelve months probation) Mr. Strezos argues by analogy that this is some evidence of recent Ontario appellate authority approving the imposition of a non-carceral penalty.

[21] In the very recent case of R. v. Neundorf [2011] O.J. No. 5241 the Ontario Court of Appeal considered an appeal against the refusal by a sentencing judge to impose a discharge on an offender who took her children out of the country for an extended period, thereby intentionally frustrating the father’s ability to exercise his access rights under a custody order. Despite several mitigating factors (lack of criminal record, strong family and community support, a voluntary return to Canada, gainful employment and five days spent in pre-trial custody), the trial judge expressly rejected a defence submission advocating a discharge and imposed a one-year conditional sentence. One basis for allowing the defence appeal – that a conviction would have the effect of precluding Ms Neundorf from being able to enter the United States - is not being argued in this case. However, “the second and much more significant issue was that as a result of her arrest and the change in the custody and access rights of the parties [after the abduction] the appellant did not see the children for over a year. This was a significant hardship on a mother and something that should have been factored in when considering the appropriate sentence” (para. 33)[^2]. Mr. Strezos cites this case for the notion that a sentence principally designed to express societal denunciation for an offender’s illegal acts must in and of itself be proportional. I may say that I have no difficulty adopting this general proposition, though some proportionality theorists would likely object on the basis that such factors do not precisely relate to “the gravity of the offence and the degree of responsibility of the offender” – see several of the articles in J. Roberts (ed.) Mitigation and Aggravation at Sentencing (Cambridge University Press: 2011). I prefer the view expressed by Prof. Manson in his sentencing text when he writes: “Realism has to be brought to the analysis” (A. Manson The Law of Sentencing (Irwin Law: 2001) at pp. 136-39).

[22] I reiterate that both defence counsel took the initial position that interpreting the facts of the offence and the exemplary and ongoing contributions of the offenders against the backdrop of this case law should persuade me that a carceral sentence is not necessary here.

[23] During Chambers discussions I provided counsel with my decision in Ontario Securities Commission v. Robinson (2011) 2011 ONCJ 89, 105 O.R. (3d) 120, a case in which I reduced what I considered to be an otherwise merited custodial sentence and partially replaced it by an order that the offender perform a significant period of community service (240 hours). Counsel alternatively argued that I should do the same in this case, but that I should make even further reductions to allow for (a) their ongoing “credit for good deeds”, and (b) the 120 hours that each has already done since the guilty pleas were entered – which may have been further supplemented by the sentencing date.

[24] In Robinson I cited extensively from English case law, now nearly 30 years old, which has approved the notion of imposing community service as an equivalent to imprisonment – if not replacing it completely. I went on to quote the important case of R. v. C.A.M. (1996) 1996 CanLII 230 (SCC), 46 C.R. (4th) 269, where Lamer C.J.C. wrote for the court:

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost of the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed in the Criminal Code. (para. 81; emphasis added)

[25] I then went on to point out that C.A.M. was decided before the 1996 revisions to Canada’s adult sentencing regime. In my judgment two elements of those changes are important for the case at bar. First, it is surely important that the title of Part XXIII was renamed; “Punishment” was replaced with “Sentencing”. Second, as I have previously indicated, “reparation” (more commonly known as restorative justice) was expressly listed as a “Purpose” of sentencing. Though obviously different from the case at bar in both factual and legislative contexts, I consider it noteworthy that in both R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court of Canada reminded sentencing judges that restorative/reparative justice objectives are to be given considerable prominence in determining a fit sentence.

[26] I have given serious consideration to defence counsel’s primary argument that a custodial sentence is not merited in this case. With respect, I disagree. Even allowing the offenders some credit for the threats to which they had been subject, in my judgment their deliberate actions in illegally obtaining and storing firearms and ammunition over many months indicates a considerable degree of moral blameworthiness. Nor can I agree that the offence to which they have pleaded guilty should be analogized to cases of careless storage of firearms. These were illegal and dangerous firearms, which the offenders might well have been tempted to use – albeit in a defensive context. [^3]

[27] In my judgment, a custodial sentence in the range of 6-9 months would normally be appropriate in the circumstances of this case to reflect societal denunciation of the offenders’ acts. (And to the extent that it remains a valid purpose of sentencing, I suppose such a sentence might be imposed in the hope of also promoting general deterrence). However, given the offenders’ excellent antecedents - most particularly their outstanding and ongoing involvement in a variety of community projects over many years - I think that they are entitled to some considerable “moral credit” for past good deeds. When I combine this with their willingness to continue these good works through an order for community service, I am prepared to reduce the custodial portion of their sentences down to the level where an intermittent sentence is available.

[28] Though it is not precisely analogous to the case at bar, in R. v. Suhr (March 12, 2002, unreported), a case involving defrauding an employer, I found that the appropriate range of sentence would normally have been about 9-12 months custody, but I elected to reduce the “denunciatory” term to six months and to replace the remainder of the custodial term with an order that the offender perform a significant number of hours of community service. That decision was appealed by the offender to the Court of Appeal (R. v. Suhr 2002 CanLII 13476 (ON CA), [2002] O.J. No. 4315). While the panel hearing the appeal expressly refrained from offering any general comment on the methodology I had employed, the court noted that it was open to me to do what I had done, approved of what I had done in the circumstances of the case, and upheld my sentence. I interpret this case as authorizing a sentencing judge to replace a portion of an otherwise appropriate custodial sentence with some period of community service. For this reason, my disposition of this case is to impose what I consider to be the minimum “denunciatory term” of custody, followed by a lengthy period of probation, the major purpose of which is to require the offenders to perform community service in lieu of additional custody.

[29] I have given additional consideration to whether this minimum “denunciatory term” needs to be at the maximum available level of 90 days intermittent. Having regard to (a) the fact that intermittent imprisonment is pure warehousing, with no rehabilitative value, and (b) having regard to Mr. Strezos’ argument that a denunciatory sentence must be proportional, I conclude that a lesser intermittent sentence is fit in the circumstances of this case. Though there is, of course, an element of arbitrariness in assigning a number to any sentence, it is my view that an intermittent sentence of 60 days for each offender will adequately address the principles of sentence that I must consider. I believe that sensible, tolerant and properly informed members of this community, properly mindful of the principle of restraint articulated in s.718.2 of the Code, would support such sentences in the rather unique circumstances of this case.

DISPOSITION

[30] Each accused will be sentenced to 60 days to be served intermittently, from Monday evening at 1900 hrs to Wednesday morning at 0600 hours. As I was told by counsel during submissions that, at the request of their employer, it may make it easier for the business if the offenders are permitted to enter custody on different weekends, I will hear from counsel as to how this should be arranged.

[31] There will be two probation orders for each offender. The first will apply when each is not in confinement during the serving of the intermittent sentences. Beyond the statutory conditions, there will be one optional condition, namely that each offender is to remain within the Province of Ontario.

[32] Upon the completion of the intermittent sentences, each offender will be placed on probation for a period of 18 months. Beyond the statutory conditions, the only optional conditions will be (a) that each offender is to perform 240 hours of community service, beginning within 15 days of the commencement of this probation period, and shall be completed at a rate of not less than 15 hours per month in consecutive months, and shall be completed within 16 months of the commencement of this probation period to the satisfaction of the probation officer or designate, and (b) that each offender is to report to a probation officer for that purpose. (Since all counsel were in agreement that the only purpose of probation is to have the offenders perform supervised community service, should the offenders wish to complete their community service at a faster rate than I have specified, I would likely give favourable consideration to an application to decrease the period for which the probation order is to remain in force (Code s. 732.2(3)(c)).

[33] Each offender is prohibited from being in possession of any firearms, explosives or ammunition for the rest of their lives.

[34] There will be an order for the forfeiture and destruction of the firearms and ammunition seized.

Released: January 12, 2012

Signed: “Justice D.P. Cole”

[^1]: The phrase is attributed to Dame Sian Elias, Chief Justice of New Zealand, quoted in Justice Marc Rosenberg’s G. Arthur Martin Medal speech to the Criminal Lawyers’ Association, November 28, 2009.

[^2]: Because the offender had served the entirety of her conditional sentence by the time the case came on for appeal, the court substituted “a discharge which, at this stage, will be an absolute discharge” (para. 34).

[^3]: Given that Francesco Carbone’s firearm was not kept in a locked place, I have given some consideration to whether his “moral blameworthiness” should be assessed at a higher level than that of his brother. Since neither Crown counsel raised this issue, I have somewhat reluctantly decided to ignore this factor.