ONTARIO COURT OF JUSTICE

CITATION: R. v. Karapetrov, 2021 ONCJ 659

DATE: 2021 12 15

COURT FILE No.: Toronto 4817-998-19-75005655-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

STEVEN KARAPETROV

Before Justice H. Borenstein

Reasons for Sentence released on December 15, 2021

Ms. J. Armstrong................................................................................ counsel for the Crown

Ms. L. Shemesh.......................................... counsel for the accused Steven Karapetrov

Borenstein J.:

Introduction

[1] Steven Karapetrov was found guilty after trial of possession of a restricted firearm, possession of a weapon for a purpose dangerous and being an occupant in a motor vehicle knowing there was a prohibited firearm in the vehicle. He was found not guilty of attempted murder, pointing a firearm without a lawful excuse and reckless discharge of a firearm, all on the basis of self defence.

[2] This is his sentencing.

[3] I won’t repeat the facts in detail as they are contained in my reasons for judgment.

[4] Briefly, at around two in the morning, Karapetrov and three other men arrived at an address near Gerrard and Greenwood in two cars. Karapetrov was the passenger in the front car. The two cars stopped outside a housing complex and the four men got out and went into an apartment. The four returned to the cars less than two minutes later. What they were doing in the apartment is not before me in evidence. As they got back into their cars, a lone gunman emerged from a laneway next to where the cars were parked and walked right up to the front car and raised his arm pointing a gun directly at the front car. As he was about to fire, the driver of the front car fired first, and the gunman returned fire at the same time. Then, all four occupants of the cars exchanged fire with this gunman. They all had loaded guns at the ready. In the two or so seconds that passed before the two cars fled, some 45 shots were fired amongst the five people, in a residential community at two in the morning. It is a miracle no one was killed.

[5] As the cars fled, Karapetrov himself was shot in the back of the head and the back, most likely from bullets fired from the people in the second car. The driver of the first car literally dropped Karapetrov off in the emergency Bay Area of Michael Garron Hospital before fleeing. Hospital staff brought Karapetrov in and treated him. He had serious injuries and still suffers from those injuries today. He has a metal plate in his head and significant complications including vision and memory impairment, and digestive issues. Karapetrov had several rounds of unspent ammunition in his pocket when taken into the hospital and approximately $5,000 cash. The police recovered the two cars which were laden with bullet holes. There is no evidence that anyone else was hit by this obscene and dangerous array of gunfire. There is no evidence that the other three men in the cars, nor the gunman who emerged from the laneway were ever located.

Personal circumstances

[6] Steven Karapetrov is 29 years old. He has no criminal record. This offence occurred on January 4, 2019. Following his treatment in the hospital and a brief period of incarceration of about two and a half months, he was released on a very strict house arrest bail. In December 2019, his bail was loosened to allow him into his backyard or out of the house but only if accompanied by his surety. He wore an ankle bracelet throughout. His bail was relaxed on consent following his acquittal this year of the attempted murder charge. But he has been on strict bail without incident for 34 months. Pursuant to Downes, given the strict restrictions on his liberty for those 34 months, I view that as equivalent to eight months of pre-sentence credit. That, with the actual two and a half months incarceration, enhanced to four months, is equivalent to a year in custody.

[7] Turning to his personal circumstances, and I get this information mostly from the pre-sentence report, his affidavit, the medical records, and Ms. Shemesh’s submissions.

[8] He is 29 years old. He was born in Toronto and is the youngest of three children. His grandparents came here from Macedonia. His grandfather was an electrician but also an alcoholic who was bitter about having come to Canada. Karapetrov’s own father was also an electrician and an alcoholic but he has been sober now for about 12 years. Nonetheless, the verbal and physical abuse that was present in his own home and his grandparents’, was present throughout Karapetrov’s life. Karapetrov, at a very young age would physically intervene to protect his mother from abuse, physical and otherwise.

[9] Karapetrov was raised by his grandmother. When he was 14, she jumped out a window and died from her injuries. He became more depressed and began abusing alcohol and drugs and associating with negative peers. He never finished high school being just one credit short. He tried to make up that credit but did not succeed. His mother developed an opioid addiction as a result of prescription painkillers. Her life became quite unstable and Karapetrov lived with his brother from 2013 to 2015 until that brother was incarcerated for drug trafficking. He then lived on his own. He was depressed and continued drinking and was supported by social assistance. He had a good relationship with both his siblings including his brother who had been incarcerated and is now sober. Karapetrov’s sister Maria attempted suicide by hanging in 2014 and is doing better now. Roughly two months after this offence, while in the middle of his bail hearing, his mother died of a fentanyl overdose.

[10] Needless to say, there has been a lot of trauma in his life from a very young age. Despite that, and despite not finishing high school, he did not have a criminal record until this time.

Position of the parties

[11] The offences Karapetrov was found guilty of represent offences at the true crime end of the spectrum of offences of this nature. I agree with the Crown’s observation that we cannot let ourselves become numb to the shocking fact that people are carrying loaded firearms in our society. But as Ms. Shemesh points out, Karapetrov is to be sentenced for possessing the gun, not the firefight. Even though he was acquitted of attempted murder, this case clearly demonstrates the dangers of people carrying loaded guns on our streets.

[12] The Crown, in all the circumstances including the fact that Karapetrov has shown that he can abide by Court Orders of release, seeks a sentence in the range of 30 months less pre-sentence custody. Given my pre-sentence calculation, the Crown seeks a further 18 months in jail.

[13] Ms. Shemesh submits that, as a result of being shot in the head and the back, and the lifelong injuries he now endures, Karapetrov has been punished far more than any jail sentence could for this one serious offence. Further, he has shown he can comply with Court Orders. In those circumstances, the defence seeks a conditional sentence as the best balance of the sentencing objectives in to protect society particularly in light of the consequences to him from this offence.

Principles of sentencing and caselaw

[14] Sentences for serious gun crimes are ordinarily exemplary and focus on denunciation and deterrence. The sentence must be proportionate to the gravity of the offence which is high in this case and the moral responsibility of the offender which is also high. Rehabilitation, while always a factor especially for first offenders, has a lesser role.

Mohiadin

[15] In the 2021 Ontario Court of Appeal decision in Mohiadin (2021) OCA O.J. 936, a 19 year old had been found guilty after trial of six offences relating to possessing a loaded handgun in a car. The Crown sought a sentence of 32-36 months less pre-sentence custody. The defence sought less. The trial judge imposed a 38 month sentence less pre-sentence custody. The Court of Appeal held that the trial judge erred by not putting the parties on notice of his intention to impose a sentence longer than sought by the Crown. In doing so, they wrote:

12. In sentencing afresh, we begin by reiterating the observations of Doherty J.A. in R. v. Nur, 2013 ONCA 677, at para. 206, aff'd 2015 SCC 15, [2015] 1 S.C.R. 773, that "[i]ndividuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation." In Nur, both this court and the Supreme Court of Canada declined to interfere with a 40-month sentence imposed on a 19-year-old first-time offender who tried to flee the police, was chased, and threw his loaded handgun under a parked car. McLachlin C.J. underscored, at para. 120, that "[i]t remains appropriate for judges to continue to impose weighty sentences" in appropriate circumstances.

13. Here, in proposing a three-year sentence before credit for pre-trial custody and Downes credit, the Crown was mindful of these and other authorities. Crown counsel fairly noted that some cases have imposed longer sentences than this for similarly serious gun possession offences by youthful first-time offenders, while other cases have imposed shorter sentences. The Crown was satisfied that its proposed sentence was appropriate having regard to the following factors: (1) the appellant was a youthful first-offender; (2) while there was no evidence that the appellant was involved in gang activity, there was also no evidence of any direct threat to the appellant; (3) the appellant had witnessed gun violence, his older brother had died in gun violence, and he lived in a part of Toronto where gun violence is commonplace; (4) the appellant had prospects for rehabilitation; and (5) although the appellant did not plead guilty, he saved several days of court time by effectively inviting a guilty verdict after losing a preliminary Charter challenge.

[16] The Court reduced the sentence to the three years sought by the Crown less pre-sentence custody.

Sealy-Ward

[17] In the 2020 Ontario Superior Court decision in Sealy-Ward (2020) OJ 47, Justice O’Bonsawin sentenced a 19 year old first offender to 21 months in jail and probation following his conviction after trial of 11 offences including possessing a loaded sawed off shotgun and possessing crack cocaine and methamphetamine. He had a minor unrelated criminal record. Justice O’Bonsawin noted the importance and need for denunciation and deterrence but also the goal of rehabilitation. She referred to case law including the Supreme Court’s decision in Lacasse which spoke of the highly individualized balance undertaken in sentencing.

Morris

[18] The recent Ontario Court of Appeal decision in Morris discussed the relevance of anti-black racism in sentencing but, more generally, the proper approach when sentencing for firearms offences.

[19] Morris was found guilty after trial of possessing a loaded weapon in a car and related offences. He had no record and had been exposed to serious violence growing up. He himself been shot which the trial judge found was part of the reason he carried a loaded gun. Morris was 23 at the time of the offence and 26 at the time of sentencing. The trial judge held that Morris’ life experience including the anti black racism he experienced reduced the seriousness of the offence and held that he should be sentenced to 15 months imprisonment less pre-sentence custody and deductions for Charter violations. The Crown sought a three year sentence. The Crown appealed.

[20] The Court of Appeal noted that the fundamental purpose of sentencing is to protect society.

[21] Sentencing judges must craft individualized sentences that are proportionate to the seriousness of the offence and the moral responsibility of the offender.

[22] The seriousness of the offence is measured by its normative wrongfulness and the harm posed by the conduct in the circumstances in which it occurred.

[23] An offender’s personal background, including anti black racism as in Morris, does not minimize the seriousness of the offence but may affect the degree of personal responsibility of the offender if there is some connection between the background and the offence.

[24] At this point, I refer specifically to s. 718.

[25] S. 718 provides that “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(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.

[26] The Court noted that blending and weighing the sentencing objectives in s. 718 is the essence of sentencing. An accused’s background and life experiences can be factored in when gauging the moral responsibility for the offence and to assist in choosing between available sanctions where the background is in some way linked to the offence. The individualization of the process helps the sentencing judge decide how to weigh those various objectives when determining a fit sentence. No matter how the sentencing objectives are weighed, the ultimate sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

[27] The Court held that, where the gravity of the offence demands that denunciation and deterrence be emphasized, a proportionate sentence will most often require jail and, in the vast majority of possession of loaded gun cases, a three year sentence will be appropriate In Morris itself, the Court held that a sentence of two year less a day would have been appropriate but then stayed the sentence in light of the passage of time.

[28] With those principles in mind, the main thrust of the defence submission is that Karapetrov’s extensive injuries has and will continue to deeply affect his life and would render any time in jail particularly hard. He had no record and has been under strict state control for three years without incident. As both counsel note, he has demonstrated that he can and will comply with Court Orders.

[29] In the 2018 Supreme Court of Canada decision in R. v. Suter, the Court held that, in unique circumstances, mitigating factors, collateral consequences or other attenuating circumstances can warrant a sentence outside the usual range but not to the point where the sentence becomes disproportionate to the gravity of the offence or moral responsibility of the offender. It held that collateral consequences to the offence, the conviction, or the sentence itself can be taken into account in determining the sentence. They also noted that injuries suffered are properly seen as part of the individual who is being sentenced. The collateral consequences must relate to the offence or the offender.

Aggravating and Mitigating Factors

[30] The offence itself is very serious and the manner in which it was committed is extremely aggravating. Karapetrov possessed a loaded handgun in a car, in public, with others, in a residential complex. At the hospital, he had $5,000 cash and ammunition.

[31] The shootout that occurred illustrates the very dangers of possessing loaded guns.

[32] The gravity of the offence and degree of Karapetrov’s responsibility are both very high. It is also important not to conflate the serious offences for which he was convicted with the actual shootout for which he was acquitted.

[33] By way of mitigation, Karapetrov does not have a criminal record. He did not benefit from a stable upbringing to say the least. He has seen considerable tragedy at a very young age which likely contributed to his not finishing high school, to his alcohol abuse and instability. While he did not plead guilty, the trial was focussed, and he was acquitted of the most serious charges. And then there are the considerable collateral consequences from this offence, namely his serious injuries and the impact on the rest of his life, but those are more properly collateral consequences rather than mitigating factors.

[34] The sentence for this first offender must be exemplary. But the absence of any record, his compliance with three years of strict conditions and his injuries are also factors. He does not need to be specifically deterred. His rehabilitation should be emphasized as well to a degree.

[35] The three cases I have referred to above would suggest a range from between 21 months and three years.

Conditional Sentence

[36] As Morris reminds us at paragraphs 124-125:

The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over-incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.

[37] After Nur struck down the mandatory minimum, a conditional sentence is statutorily available for offences under s. 95. As persuasively laid out in Anderson (NSCA), a carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender, can, in some situations, be a fit sentence for a s. 95 offence.

[38] Accordingly, a conditional sentence may be appropriate where it contains strong terms that are responsive to the needs of denunciation, deterrence and the rehabilitative potential of the offender.

[39] Pursuant to s.742.1(a), the Court must be satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[40] Karapetrov’s demonstrated compliance with three years of strict bail leads to the conclusion that he can and will comply with Court Orders and his being in the community will not endanger the community. The bigger question is whether serving the sentencing in the community is consistent with the fundamental purpose and principles of sentencing.

[41] I agree with the Crown that the gravity of the offence demands a jail sentence. However, as the Supreme Court and the Ontario Court of Appeal have noted, a conditional sentence is a jail sentence. It is not nearly as harsh or restrictive as actual jail but the threat of it turning in to an actual sentence looms throughout. Further, it can be lengthier than a sentence in actual jail.

[42] The Supreme Court of Canada’s decision in Proulx provides that a conditional sentence, if lengthy and with onerous terms, can provide significant denunciation and deterrence and carry the added force of the possibility of imprisonment if its terms are not followed.

[43] In my view, given his adherence for 34 months to a very strict house arrest bail, combined with almost three months of pre-sentence custody which together I am considering as equivalent to one year of pre-sentence custody, and the fact that he had no record, his tragic and traumatic background and the significant injuries he has suffered, a sentence of two years less a day served in the community on strict terms is the appropriate sentence. That will then be followed by three additional years of probation. This sentence represents 5 years of sanction going forward in addition to three years backwards would represent 8 years of significant state control with threat of incarceration upon Mr. Karapetrov, who has shown he can comply with such control.

[44] I will hear submissions now as to the terms.

[45] There will be a DNA Order, an Order of forfeiture in relation to the firearm and ammunition, and a 10 year section 109 Order.

Released: December 15, 2021

Signed: Justice H. Borenstein