ONTARIO COURT OF JUSTICE

DATE: 2022 03 11 COURT FILE No.: Toronto 4817-998-21-75002988 4817-998-21-75003002

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KAL TEKOLLA

Before: Justice Bovard

Heard on: July 15, 2021, January 7, 2022 Oral Reasons for Judgment released on: March 2, 2022 Written reasons for Judgment released on: March 11, 2022

Counsel: Mr. A. Cox............................................................................................. counsel for the Crown Mr. S. Goldstein........................................................ counsel for the accused Kal Tekolla

Bovard J.:

Introduction

[1] In the middle of his preliminary hearing, Mr. Tekolla re-elected trial before me and on July 15, 2021, he pleaded guilty to two drug charges and a firearms charge. All the charges arose out of an incident on July 17, 2020.

[2] Specifically, Mr. Tekolla pleaded not guilty to possession for the purpose of trafficking, but guilty to simple possession of:

(1) Fentanyl, s. 4 Controlled Drugs and Substances Act (2) Oxycodone, s. 4 Controlled Drugs and Substances Act (3) Possession of a loaded prohibited firearm contrary to s. 95 (1) Criminal Code

[3] The Crown proceeded by way of indictment on all the charges.

[4] On consent, all the evidence on the preliminary hearing will apply to the sentencing. In addition, the Crown read in facts in court in support of the plea. Therefore, what follows is a combination of the evidence given at the preliminary hearing and facts that the Crown read into the record when Mr. Tekolla pleaded guilty.

The facts of the case

[5] Due to the recent escalation and tensions in certain members of Regent Park Community and outsiders, related to drug abuse and disorderly behaviour, members of 51 Division of the Toronto Police Service conducted surveillance on the area of 25 Wyatt Avenue, on Friday, July 17th, 2020. Officer Ryan Kotzer testified that he set up an observation post at around 7:15 pm.

[6] The area is a densely populated residential area with a number of high and low rise buildings and a community sports complex.

[7] He saw Mr. Tekolla in the front seat of an SUV. He had a large satchel on his lap. Dozens of men came up to the SUV. There was a man in the back seat of the SUV speaking to a man who was standing next to it. Items were being passed around between some of the men. Officer Ryan Kotzer testified that it was evident that they were selling drugs, especially marijuana. One of the men had a digital scale.

[8] Mr. Tekolla was sitting in the front passenger seat with a serving tray on top of the satchel that he had. The tray had a pile of marijuana on it. It appeared that Mr. Tekolla was doing something with it. Mr. Tekolla got out of the SUV with the satchel. Officer Kotzer saw that he had a marijuana cigarette in his mouth. He offered the marijuana on the tray to some of the men that had come over to the SUV.

[9] When Mr. Tekolla was outside of the SUV, he greeted people and appeared to be watching the area. Then he got back into the SUV. Another man arrived and spoke to him and to another man who was in the SUV.

[10] Mr. Tekolla got out of the SUV and took out a bag from his satchel and emptied it onto the serving tray. Officer Kotzer testified that it appeared to be marijuana. Mr. Tekolla gave the tray to the men who were arriving. Then he got back into the SUV and sat in the driver’s seat. Officer Kotzer said that during this time other males were engaged in various activities around the SUV that were related to drugs.

[11] As the evening passed by more men arrived on the scene. Officer Kotzer said that after about two hours of surveilling the scene, had reasonable and probable grounds to believe that Mr. Tekolla and others were trafficking in marijuana contrary to the CDSA. He organized officers and instructed them that they were going to move in and make arrests.

[12] Officer Graham Ellis testified that he arrested Randolph Solomon who ran from the scene when the police converged on them. He had a satchel with a handgun in his possession. The magazine of the gun had 8, .40 caliber bullets and there was one in the chamber. The Crown stated that “Mr. Tekolla is not to alleged to possess that gun, nor is the Crown alleging specific knowledge of that gun” (page 11, lines 3-4, transcript, July 15, 2021).

[13] Officer Popalzai approached Mr. Tekolla who was sitting in the driver’s seat of the SUV. He told him to get out, but he refused. Officer Popalzai pulled him out of the SUV. He put him face down on the ground, arrested him, and put handcuffs on him. He searched the satchel that Mr. Tekolla had and found the firearm in question. The gun contained six bullets: five in the magazine, and one in the chamber.

[14] In addition, he found drugs and money in the satchel:

• Fentanyl (1.18 gms.)
• Oxycodone 0.56 gms (1 pill)
• Crystal Meth (8.86 gms.)
• Cannabis (2.50 gms.)
• $195 Canadian currency

[15] He also found a digital scale and a key fob for the SUV in the satchel.

[16] Mr. Tekolla had one cell phone on his person. Officer Popalzai found four other cell phones, but he could not remember where he found them.

[17] When the police moved in and made their arrests there were approximately 30 to 50 people close by. The SUV was within 50 feet of a basketball court occupied by dozens of people, including children. It was close to a neighbourhood sports complex, including a hockey rink, soccer field, running track, baseball court, children’s playground and table tennis tables used by the Regent Park Community.

The parties’ position on sentence

The Crown

[18] The Crown asks for a sentence “in the area of three years”, plus a s. 109 order for 10 years and a DNA order.

[19] If the court sentences Mr. Tekolla to a sentence in the reformatory range, the Crown asks for probation for three years.

Ancillary Orders

[20] The Crown seeks the following ancillary orders:

• DNA order;
• s. 109 weapons prohibition for life;

[21] The Crown submits that the main principles that I must consider are denunciation and deterrence. Gun crime in Toronto is a serious problem. Rehabilitation is important, but to a lesser extent.

[22] The Crown submits that it is aggravating that Mr. Tekolla had a fully loaded firearm. On page 38 of the transcript of January 7, 2022, he submitted that:

Your Honour heard about Mr. Solomon also being armed and you have the reasons for sentence from Mr. Solomon before you. And that increases the danger to the public, where we're not just dealing with one gun here, we are dealing with more than one. Not saying that Mr. Tekolla possessed a gun, but he was involved in, in a situation that was more dangerous by more than one person being armed.

[23] However, asserting this as an aggravating factor seems inconsistent with the Crown’s statement, cited above, that “Mr. Tekolla is not to alleged to possess that gun, nor is the Crown alleging specific knowledge of that gun” (page 11, lines 3-4, transcript, July 15, 2021).

[24] The Crown pointed out that the nature of the neighbourhood in which this incident took place is an aggravating factor. It was next to a community sports field in a densely populated area. There were many persons in the vicinity, including children. This increased the danger that Mr. Tekolla created.

[25] The Crown submitted that Mr. Tekolla was at the centre of the activities around the SUV and was “kind of the lynch pin of that group”.

[26] In addition, there was the potential for Mr. Tekolla to ingest some of the drugs that were at the scene, which would create an increased danger for the public because he had a loaded firearm.

[27] Mr. Tekolla’s resistance to Officer Popalzai when he told him to get out of the SUV is aggravating because it increased the potential danger to the officer who was trying to get him our of the car to arrest him.

[28] In addition, armed persons can move around the city quickly in a motor vehicle. The courts have held that possessing guns in motor vehicles is very dangerous and is an aggravating factor.

[29] The Crown submitted that the strength of the case against Mr. Tekolla lessens the mitigation of his guilty plea.

[30] The Crown cited several cases to support his position.

[31] In R. v. Nur, 2013 ONCA 677, the accused pleaded guilty to one count of possession of a loaded prohibited firearm contrary to s. 95 (1) Criminal Code. As in the case at bar, the Crown proceeded by way of indictment. He had possession of the firearm at a community centre where he attended with three other men. A man inside the community centre told a staff member that they were out to get him.

[32] The staff member called the police, and the four men ran away. As he ran away the accused threw the gun under a parked car. The police caught the accused and retrieved the gun. It was a .22 caliber semi-automatic with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun could fire all 24 rounds in 3.5 seconds.

[33] In paragraph 17, the court stated that the appellant was 19 years old at the time of his arrest and 21 at the time of sentencing. He was born in Somalia. His family fled the armed conflict in that country, going first to the United States. When the appellant was five years old, his family crossed into Canada and claimed refugee status. Since then, the family has lived in Canada. The appellant has permanent resident status.

[34] The Court noted that the trial judge summed up the accused’s personal circumstances as him being “a young man with considerable potential. He also has the good fortune to come from a strong pro-social family who remain very supportive. Finally, he is a first offender with no apparent criminal antecedents” (Para. 22).

[35] The court characterized the accused’s possession of the gun as posing “an immediate and serious risk to the public” (para. 53).

[36] The court stated that handguns “pose an added danger to the public. They become even more dangerous when loaded or when useable ammunition is readily available to the person in possession of the firearm” (para. 54).

[37] In paragraph 204, the court asserted that Parliament’s intention in enacting s. 95 of the Criminal Code was to “emphasize the objective of …. the deterrence and denunciation of gun-related criminal activity”.

[38] In paragraph 206, the court declared that,

Individuals 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. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

[39] In R. v. Marshall, 2015 ONCA 692, the court dealt with an appeal by the accused from his conviction at trial for possession of a loaded prohibited firearm. The court noted that he was “enmeshed in the world of drugs”.

[40] The trial judge sentenced him to three and a half years in prison. On appeal, the accused argued that “given his youth at the time of sentencing (23 years old), his lack of a criminal record, his candour at trial in acknowledging his involvement in the drug trade, and his positive rehabilitative prospects, a sentence of between two and one-half to three years in jail is appropriate” (para. 44).

[41] In rejecting this submission, the Court of Appeal referred to paragraph 206 of Nur cited above. The court in Marshall noted that the accused was trafficking in drugs and had possession of “of a prohibited loaded handgun at a location where drug deals were occurring, several individuals were present …. and the potential for violence was high” (para. 48).

[42] Marshall held that “There can be no doubt that this type of crime, in the circumstances described above, is an offence at the “true crime” end of the s. 95 spectrum of offences described by this court in Nur. Denunciation, deterrence and protection of the public are unquestionably the paramount principles of sentencing implicated for such a crime” (para. 49).

[43] I acknowledge that in Marshall there were aggravating factors that do not exist in the case at bar. For example, the accused minimized and rationalized his crime and did not see a need to change his life-style. He was not amenable to counselling. And while on bail for the offence he committed the offence of possession for the purpose of trafficking in cocaine and breached his recognizance of bail twice. This weakened his claim that the sentence appealed from would undermine his rehabilitation.

[44] But in upholding the sentence of three and one-half years, the court noted in paragraph 53 that,

The trial judge considered the appellant's youthfulness. While the sentence imposed would be the appellant's first penitentiary sentence, his crime was serious and committed in the course of his commission of other admitted drug-related crimes. Although the courts should impose the shortest possible sentence in cases involving a youthful first time offender, the sentence must be consistent with the relevant sentencing principles, including proportionality to the gravity of the offence. As I have already said, the appellant's offence was on the true crime end of the s. 95 spectrum. A sentence of three and one-half years is fit in the circumstances.

[45] The court in Marshall noted that in Nur the Supreme Court of Canada upheld a sentence of 40 months for a 19-year old first offender that pleaded guilty and had good rehabilitative prospects (para. 55).

[46] The court in Marshall concluded that three and one-half years in prison “is well within the range of sentences upheld by this court for weapons offences committed in association with drug crimes” The court found that the sentence was “entirely fit” (para. 56).

[47] R. v. Mansingh, 2017 ONCA 68, reflects the same sentencing approach as prescribed in Nur and Marshall.

Time spent on house arrest (Downes credit)

[48] Regarding credit for the time that Mr. Tekolla spent on bail, the defence stated “I’m not going to go into the Downs (sic) case and what time you should adopt. I think it’s appropriate to deduct some time, but I’ll leave that in your – Your Honour, ….” (transcript, January 7, 2021, page 126, lines 11-14).

[49] R. v. Adamson, 2018 ONCA 678, [2018] O. J. No. 4104 CA, in paras. 107, 117, stated the following concerning the credit that should be allowed for time spent on bail:

107 …. The amount of credit to be given, if any, lies within the discretion of the trial judge. Unlike s. 719(3) in relation to predisposition custody, there is no formula the sentencing judge must employ. The amount of credit is variable, a function of several factors, including but not limited to:

i. the period of time spent under house arrest; ii. the stringency of the conditions; iii. the impact on the offender's liberty; and iv. the ability of the offender to carry on normal relationships, employment and activity.

See, Downes, at paras. 33, 34 and 37. See also, Ijam, at paras. 37 and 63.

117 …. Time spent on pre-trial release does not always deserve weight as a mitigating factor. In some cases, a sentencing judge "should give mitigation effect to pre-trial bail." In other cases, "this factor should attract little, if any, weight": Ijam, 2007 ONCA 597, 87 O.R. (3d) 81 at para. 37. This case fell into the latter category, given the trial judge's unequivocal and reasonable finding that the appellant did not suffer any significant hardship because of compliance with his bail conditions. That finding justifies the trial judge's decision not to give mitigation effect to the appellant's time on pre-trial release, either through an explicit award of credit or by assigning it weight when determining an appropriate sentence.

[50] In Downes (para. 37), the court stated that,

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[51] The evidence before me indicates that Mr. Tekolla’s time on house arrest was not very onerous. There is no evidence before me that he suffered unduly from being on house arrest. His bail order was not adduced by counsel, so I do not know the exact conditions, or how long he was subject to the bail order. On page 77 of the transcript of January 7, 2021, the Crown stated that Mr. Tekolla was allowed to “be outside of the house with a surety, there was a counseling exception here ….”

[52] As will be seen below when I address Mr. Tekolla’s statement to the court, he used the time to contemplate his situation, and the support letters that he adduced indicate that he spent a considerable amount of time at his employment and in doing volunteer work for his church. It appears to me that he was allowed a lot of freedom pursuant to the bail order and that he used that freedom to his advantage.

[53] The Crown suggested that I give Mr. Tekolla credit for a month or a month and a half. Considering the circumstances of this case and pursuant to the jurisprudence cited above, I will give him credit for 60 days.

Defence submissions

[54] The defence asks for a conditional sentence of two years less a day.

[55] No presentence report was ordered or asked for. However, defence counsel did a very good job in describing Mr. Tekolla’s background and current circumstances. I find that his work is an adequate substitute for a presentence report. Mr. Tekolla is 24 years old. He does not have a criminal record. He did not breach his bail while waiting for the resolution of his case.

[56] Defence counsel introduced various letters and other materials in support of Mr. Tekolla. I will address them here.

1. An undated Grade Report from James Madison High School that indicates that Mr. Tekolla achieved a 3.25 GPA in six subjects. There is no date on the document, but I assume from other evidence that he took the courses while awaiting sentence.

2. An undated letter from PCDICanada that confirms that Mr. Tekolla is enrolled in an online program at James Madison High School to earn his high school diploma. The letter states that he enrolled on July 19, 2021, and that he is still active in the program. It is hard to tell if he is active in the program as of the date of sentencing, however, because the letter is not dated.

3. An undated letter offering a character reference from Sword Security. The author, Mr. Ali, states that he has known Mr. Tekolla since 2013. He learned of the charges before the court and was shocked and disappointed with Mr. Tekolla. Nevertheless, he hired him on October 26, 2020. Mr. Tekolla has performed very well and earned a promotion due to his many positive qualities. Mr. Tekolla has received many commendations from clients. The company awarded him the “Employee of the Year” award for 2021 “due to his rapid transformation and affirmations into the workforce considering his background”.

   Mr. Ali stated that Mr. Tekolla “has been the leading force behind the labour department, being promoted to the senior trainer for all onboarding staff in the summer of 2021, followed by a senior supervisor promotion”. Mr. Ali stated that “His dedication, noted on the clients’ end, is the main reason the labor contract increased from 6 laborer’s daily, to a massive 92 laborer’s spread amongst 3 locations. Kal is hoping to obtain a security license and continue his journey of growth with our company”.

   Mr. Ali ended his letter stating that “His dedication, noted on the clients’ end, is the main reason the labor contract increased from 6 laborer’s daily, to a massive 92 laborer’s spread amongst 3 locations. Kal is hoping to obtain a security license and continue his journey of growth with our company.

   I note that Mr. Tekolla no longer works for this company, though. Defence counsel advised that he went to work for another company because it was more permanent work (pages 133, 134, transcript, January 7, 2022).

4. An undated letter from the Halton Industry Education Council, Ms. Bakyta, an employment specialist, confirms that Mr. Tekolla participated in the Avenues to Apprenticeship Employment Preparation Program from October 17, 2021, to November 26, 2021.

5. A letter dated December 29, 2021, from Mr. Zenebe, program coordinator, youth mentor and officer administrator of the Ethiopian Orthodox Church of Canada, Saint Mary Cathedral in Toronto, confirms that Mr. Tekolla has a long history of involvement with the church, although it waned during the past few years. However, his enthusiasm has been renewed and he is again an active participant in the church’s activities and does a lot of volunteer work for the congregation.

   Mr. Tekola has expressed genuine remorse for his crimes. He apologized to his family and to the church for the distress that he caused them.

   Mr. Tekolla is committed to changing his ways and at achieve this goal he plans to:

   • Meet regularly with the church’s priests for spiritual counsel;
   • Attend bible study sessions;
   • Participate in the church’s youth groups to make new friends;
   • Search for career foundation centres to help him upgrade his skills.

   Mr. Zenebe commends Mr. Tekolla for his commitment to become a better person and for the work that he has done so far. He has full confidence in him to overcome the challenges that he faces and will continue to offer him any assistance that he needs.

[57] The defence also called Mr. Tekolla’s father, Mr. Fesseha Tekolla, to testify.

[58] Mr. Fesseha Tekolla said that before his son got arrested, he was out of control. He was like a rebel. He found it hard to communicate with him. He did not finish school. He said that he spoiled him and that it is his fault that his son got into trouble.

Well, I’m the father and I’m blaming myself because I was not very hard on him when he’s not going to school, when he’s making trouble in the house, not taking action. So I am blaming for what happed (page 29, transcript, January 7, 2022).

[59] After he was arrested, he changed completely. He tried to find a job and to finish high school. He could not find work due to the pandemic. But he asked his father how he could help. He wanted to try to be a normal citizen.

[60] After he pleaded guilty, he saw “a lot of differences”. Their relationship improved. He thinks of other persons over himself. He got a job with IKEA for seven to eight months. He also did sporadic delivery and construction work.

[61] He thinks that his son will finish high school and he took a course or wants to take a course for training in a trade. He is looking for work in construction.

Mr. Tekolla’s statement to the court

[62] Mr. Tekolla, the accused, addressed the court as follows (pp. 34-36, transcript, January 7, 2022):

MR. KAL TEKOLLA: First and foremost, I would like to thank Your Honour for providing me with the opportunity to speak right now. I will not downplay the events that led to my arrest or find any excuses for the crimes that I'm committed. I'm completely aware of my actions and how also serious risk to society being in possession of an illegal weapon and drugs going as (indiscernible) as a dangerous weapon to society, (indiscernible) used to hurt people.

But I sincerely want to apologize to the court. I also want to apologize to my family for the constant stress and harm I have caused them throughout this whole case. Without much feelings to worry about my future, I allow myself to believe - to believe the world was against me. I began to be a part of the wrong crowd. I started heading down the wrong path, knowing it would not lead towards bigger or better things.

When I was placed on house arrest for the past year, I've had no choice to but sit on my own thoughts for hours contemplating all the decisions I made over the course of my life that have led me to be in this awful position that I'm in today.

Actually, I want to be a better version of myself at that time. And I haven’t moved forward. Examples of that in my life are shown through the focus I currently have towards obtaining my high school diploma and the multiple jobs I have worked through this pandemic. (Indiscernible) and spending more time with my family.

I also found a passion in masonry and the carpentry field (indiscernible). (Indiscernible) do anything (indiscernible) and the mistakes I have made for the crimes I have committed. This situation has been my most painful, but my most important life lesson to learn from.

Your Honour, I hope that I was able to explain the personal growth and provide examples that justify leniency (indiscernible) on your behest. Thank you.

[63] I was not clear why Mr. Tekolla committed the offences, so I asked about this. His answer is difficult to synopsize. I will reproduce the exchange.

THE COURT: …. And I'm still not completely clear on why he wound up committing these offences. He said that he felt like he was a victim where he felt people were against him, but there was no further explanation about that. How does that feeling lead to possessing a loaded firearm and drugs and everything else?

MR. GOLDSTEIN: Kal?

THE COURT: I feel like I'm missing something here in terms of the motivation for having committed the offences. And I think that's important because, you know, I need to see what it is so that I can maybe draw some kind of conclusion with regard to how things are different now.

MR. KAL TEKOLLA: I have to say it was just around - the surrounding was I was putting myself in.

THE COURT: I'm sorry?

MR. KAL TEKOLLA: The surroundings that I was putting myself in.

MR. GOLDSTEIN: The what?

MR. KAL TEKOLLA: The people I was putting myself around, my surroundings.

MR. GOLDSTEIN: Can you elaborate?

MR. KAL TEKOLLA: When I should be with my family, my cousins, with people at church, I wasn’t. I was somewhere else. My mind wasn't - my mind wasn’t what is - like how it is right now.

MR. GOLDSTEIN: So why did you go to, why did you gravitate to those people who were negative influences as opposed to gravitate towards the positive people?

MR. KAL TEKOLLA: I just don't want to say – I don't, I don't want to say I don't - I never, like - I guess it was just what, like, when I, when I kept like putting myself too, I wasn't me. Like, it wasn't me before, like I was something - like I wasn't Kal. I was somebody else. I can't even tell. I wouldn't even be able to tell you about why exactly I was around these people.

MR. GOLDSTEIN: What age do you think it started up? How long ago?

MR. KAL TEKOLLA: Five, maybe five, maybe even – five/six years. I came off track.

MR. GOLDSTEIN: So like 17 – sorry – five years, what, you're 18/19 years old?

MR. KAL TEKOLLA: Right when that touch that the 18, like 17, I say.

[64] It is still not very clear to me. Perhaps Mr. Tekolla just has difficulty expressing himself, or maybe he does not have much insight into why he committed the offences.

[65] Concerning the case law, the defence referred to the following cases.

[66] The first case was R. v. Solomon (unreported, Information #4817-998-21-75002988-02. College Park, Toronto). Mr. Solomon pleaded guilty to possession of a loaded restricted firearm and failing to comply with a release order before Justice Rutherford on September 16, 2021, at the College Park courthouse. Mr. Solomon was co-accused with Mr. Tekolla. He was the person who fled when the police converged on the scene and that Officer Graham Ellis chased down and arrested. He had a satchel with a handgun in his possession. The magazine of the gun had 8, .40 caliber bullets and there was one in the chamber. It was an over-sized magazine.

[67] When he was arrested, he was on a bail order with a condition not to possess weapons. He was on a peace bond that prohibited him from possessing weapons. He was 21 years old. He had a criminal record. He was in pre-trial detention for 14 months.

[68] He had a supportive family. He planned to live with his parents upon his release from custody. He converted to Islam while in custody. He did not finish high school. While incarcerated he worked on completing his high school diploma.

[69] Just before his arrest he was working doing drywalling and helping his mother clean gyms. His mother and sister were concerned about his use of marijuana. Before his arrest he had withdrawn from them and often kept to himself.

[70] In 2019, he was shot at while at a neighbourhood barbeque. From that time until he was arrested, he struggled with paranoia, anxiety and difficulty sleeping. He had a seizure just before he was arrested. A psychiatrist diagnosed him with post traumatic stress disorder, depressive disorder, and cannabis use disorder.

[71] While he was in pre-trial detention, he attended programs. A pre-sentence report stated that he performed above average while on probation.

[72] Justice Rutherford found that Mr. Solomon “was mentally ill at the time of the commission of the offences” (page 14, lines 9-10).

[73] Her Honour found that while in pre-trial detention,

He was triple bunked at the Toronto East Detention Centre for 95 days. He could not pray. The small toilet in the cell was shared by three people. At times while on the floor his head was by the toilet. He got very little sleep.

[74] He experienced multiple lockdowns. His access to showers, fresh air and telephone calls was limited. All of this occurred during the pandemic. This was an important consideration for the court.

[75] Her Honour granted Mr. Solomon credit for his 399 days of pre-trial custody on an enhanced 1:5:1 basis. This equaled 598 days, just shy of 20 months. She was of the view that in all the circumstances, a sentence of 24 months, less one day was the appropriate sentence. That left three months and 29 days of carceral time to serve. Her Honour decided that in all the circumstances he could serve this as a conditional sentence.

[76] This case is easily distinguishable from Mr. Tekolla’s case. Consequently, it does not assist me in deciding the appropriate sentence for Mr. Tekolla.

[77] Second was, R. v. John Filin-Jimenez. At the outset, I should clarify the origin of this case. The face page of the case report that counsel gave me states “BEFORE THE HONOURABLE JUSTICE M. McLEOD on September 23, 2013, at Old City Hall Toronto, Ontario”. However, both counsel referred to it as a case originating in Brampton. I note that there were two judges in Brampton named McLeod: Donald, and Katherine. However, I do not think that the case submitted to me is either of their decisions. The decision appears to be that of Justice Malcom McLeod of Old City Hall.

[78] In Filin-Jimenez, the police executed a search warrant at Mr. Filin-Jimenez’s home and found a loaded .40 calibre handgun with an over-capacity magazine in the drawer of a nightstand in his bedroom.

[79] They also found nine rounds of .40 caliber ammunition in a shoe box in the closet. Also in the shoe box were five rounds of .45 caliber ammunition. They found five more rounds of .45 caliber ammunition in the pocket of a jacket in the closet.

[80] Mr. Filin-Jimenez pleaded guilty at a “relatively early stage in the proceedings”. Regarding his criminal record the court stated that when he was younger, he was arrested while carrying a firearm. He did not admit to trafficking but admitted to having a criminal history that occurred largely when he was 16 or 17 years old. This is a vague recounting of his criminal history. It appears that his record was a youth record.

[81] He said that he was scared for his and his family’s life because someone had shot approximately five bullets into his house recently, so he obtained the handgun to protect himself and his family.

[82] The court observed that Mr. Filin-Jimenez, maintained that he had reformed and rehabilitated. He pursued online learning, worked at a variety of jobs, and landed a full-time job. His family and members of the community supported him. The court said that society should encourage this change in behaviour.

[83] Justice McLeod observed that “a plea of guilt is an acceptance of responsibility which serves as a powerful indicator of the offender’s potential for reform and rehabilitation.” Justice McLeod thought that “when an offender enters a plea of guilty to a serious criminal offence, accepts that the consequences may be harsh and places his faith in the hands of the Court, he is deserving of substantial credit. It is in the interests of society that the justice system takes all reasonable steps to encourage offenders to do this” (page 33). I note that he said this in part as an expression of his disagreement with mandatory minimum sentences for these offences, which have now been struck down.

[84] Defence counsel argues that Mr. Tekolla is in an exceptional circumstance in that he has taken significant steps to reform himself and it is appropriate for the court to acknowledge this by extending leniency to him.

[85] When comparing Filin-Jimenez to the case at bar it is noteworthy that Justice McLeod said that “the fact that the gun was left in a drawer in a private residence is a less aggravating factor than if the gun had been on his person, particularly where there is no evidentiary basis to conclude that Mr. Filin-Jimenez ever actually carried this gun in public, or did anything with it other than get it and keep it in drawer. In short, this was a very serious offence but perhaps not as serious as it would have been had there been any evidence that the gun left the drawer in the bedroom” (pp. 35, 36) (emphasis added).

[86] Justice McLeod also observed that he believed that “a properly instructed sentencing judge dealing with this kind of situation where the offender has entered a plea of guilty at an early opportunity should discount the sentence substantially to one that could be served in a correctional institution” (p. 36). He sentenced Mr. Filin-Jimenez to 18 months in jail.

[87] In an endorsement, the Court of Appeal upheld Justice McLeod. But as can be seen, there are significant distinguishing factors between Filin-Jimenez and the case of Mr. Tekolla, which render the case of limited use to me in sentencing Mr. Tekolla.

[88] Regarding other jurisprudence that deals with the appropriate sentence in cases involving firearms, in R. v. St. Clair, 2018 ONSC 7028, para. 47, Justice K. L. Campbell stated in para. 47 that:

The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. …. the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences.

• [52] …. the courts have repeatedly emphasized, that the combination of loaded, illegal firearms and the sale of illicit, addictive drugs is a very dangerous and toxic mix that makes the criminal conduct of the accused significantly more serious, [and] requires the imposition of serious penitentiary terms of imprisonment.

[89] In R. v. Vernie Junior Ferrigon para. 25, Molloy J. observed that,

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.

The Criminal Code

[90] The Criminal Code provides the following directions with respect to sentencing that are relevant to the case at bar.

718 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.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Mitigating Factors

[91] I find that the following are mitigating factors in this case.

1. Mr. Tekolla pleaded guilty. Although it was not an early plea because it was in the middle of his preliminary hearing. But he did save the system a lot of time, money, and resources by entering his plea then rather than completing the preliminary hearing and pleading guilty in Superior Court, or pursuing his defence until the end of a trial in the Superior Court.
2. Mr. Tekolla is 24 years old. He does not have a criminal record.
3. Mr. Tekolla used his time while on bail in a positive manner and improved himself and took meaningful steps towards his rehabilitation. His prospects for rehabilitation are good if he continues down this path.
4. Mr. Tekolla has the support of a loving family and community.
5. Mr. Tekolla abided by his bail order. He was not charged with additional offences.

Aggravating Factors

[92] I find that the following are aggravating factors.

1. Mr. Tekolla had a loaded handgun with a bullet in the chamber, ready to be fired.
2. Mr. Tekolla had possession of drugs and some paraphernalia of drug trafficking.
3. Mr. Tekolla pleaded guilty to possession of fentanyl and oxycodone.
4. Mr. Tekolla was one of, if not the, central figure in a type of drug fair distributing marijuana to many persons who approached the scene. In doing what he did in the way that he did It, Mr. Tekolla demonstrated that he was “enmeshed in the world of drugs”.
5. Mr. Tekolla engaged in drug related activities while armed with a loaded handgun and while in an extremely vulnerable area. There were approximately 30 to 50 people close by. The SUV that he was in was within 50 feet of a basketball court occupied by dozens of people, including children. It was close to a neighbourhood sports complex, including a soccer field, running track, baseball court, children’s playground and table tennis tables used by the Regent Park Community. Moreover, it was 7 o’clock on a summer’s evening. This is a time when it can be expected that there would be many persons out and about and using the sports facilities.
6. The situation created by all of this, of which Mr. Tekolla was an integral part, was extremely dangerous to innocent persons. These are exactly the types of situations that have given rise to disastrous consequences for law abiding citizens who are unexpectedly caught in the cross-hairs of shoot outs between persons involved in this type of drug activity.

Disposition

[93] I have not been provided with any appellate authority or authority from the Superior Court in which a conditional sentence was granted in circumstances as exist in the case at bar. Regarding lower court jurisprudence, the Solomon and Filin-Jimenez cases are significantly distinguishable, so they do not assist the defence in its quest to obtain a conditional sentence for Mr. Tekolla.

[94] Moreover, I do not think that a conditional sentence in this case would communicate sufficiently the denunciation that the appellate courts have stated must be expressed in cases such as Mr. Tekolla’s. In addition, I find that a conditional sentence would not send a sufficiently strong message of deterrence to the public or to Mr. Tekolla.

[95] I understand that after Mr. Tekolla was charged with these offences, he involved himself in laudable endeavours that if continued could lead him to being a law abiding and productive member of society. It would be a positive thing to encourage him to continue these efforts without interruption and to sentence him in such a way that would make that possible.

[96] I acknowledge that there is a danger that if I sentence Mr. Tekolla to a term of straight imprisonment, he might lose his resolve and revert to criminal behaviour. No doubt that in jail he will be exposed to many persons who are experienced in crime. They could rub off on him.

[97] But on the other hand, in jail there is programing through which he can continue his rehabilitative efforts. Although I acknowledge that this programming is limited due to the pandemic.

[98] It is tempting to want to create conditions for Mr. Tekolla in which his life and steps toward rehabilitation will be disturbed to the least possible degree. He and society might benefit from this.

[99] This is an important factor in deciding how to sentence him. However, the appellate and superior courts have declared many times that rehabilitation is secondary to denunciation and deterrence and protection of the public in cases of persons convicted of loaded firearms, especially when simultaneously involved in illicit drug activities. I am bound to apply this sentencing philosophy as it applies in the whole of the circumstances of the case before me.

[100] After considering all the circumstances, the jurisprudence, and counsels’ submissions, I find that the appropriate global sentence is 30 months in the penitentiary. I will deduct two months for the time that he spent on house arrest bail. This leaves 28 months.

[101] I will also deduct two months because he will be serving his time during the pandemic, which I acknowledge is harder time than usual. This leaves 26 months.

[102] For the possession of the loaded firearm, I sentence Mr. Tekolla to 24 months in the penitentiary.

[103] For the possession of fentanyl, I sentence Mr. Tekolla to one month in jail to be served consecutively.

[104] For possession of oxycodone, I sentence Mr. Tekolla to one month in jail to be served consecutively.

[105] I waive the victim fine surcharge.

[106] Finally, it is important to say that were it not for Mr. Tekolla’s positive efforts to rehabilitate himself while on bail I would have concluded that the appropriate global sentence would have been 36 months. I think that as important as it is to send a message of denunciation and deterrence to society, it is also important to Mr. Tekolla that the court acknowledge and give him credit for the good work that he did while on bail.

Oral reasons released: March 2, 2022 Written reasons released: March 11, 2022 Justice J. Bovard