Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023.03.03 COURT FILE No.: Toronto # 19-21017

BETWEEN:

HIS MAJESTY THE KING

— AND —

ALEX YIZHAK

REASONS FOR SENTENCE

Heard on: January 25, 2023 Released on: March 3, 2023

Counsel: Ms. L. Kromm........................................................................................... counsel for the Crown Mr. G. Lafontaine and Ms. J. Kushnir.................................................. counsel for Mr. Yizhak

BAND J.:

Reasons for Sentence

I. Introduction

[1] In the fall of 2019, the police were investigating violence that had erupted between rival tow truck operators. Mr. Yizhak was employed in that industry for a time. It was in that context that police obtained a warrant to search his Thornhill condo. Using a ram, they burst into the unit in the early hours of the morning. They found a loaded, prohibited, semi-automatic Berretta handgun and a revolver-like BB gun hidden in a shelving unit near the front door. Mr. Yizhak was also present. He was charged with possession of a firearm contrary to ss. 92(1) and 95(1) of the Criminal Code.

[2] By way of pre-trial motion, Mr. Yizhak challenged the validity of the search warrant, and sought exclusion of the firearm. I dismissed that application. The trial on the merits was short and focused. Mr. Yizhak did not testify or call any evidence. I found him guilty and provided oral reasons for doing so on February 17, 2022. What happened in the ensuing 11 months need not be rehashed here. [1]

[3] On January 25, 2023, I heard the sentencing submissions of the parties and the Crown invited me to stay the s. 92(1) count pursuant to the rule in Kienapple.

II. The Facts

A. The Firearm

[4] The police executed the search warrant in late September 2019. The shelving unit near the front door contained a number of shoe boxes and a larger, open cardboard box with its flaps tucked in. It contained a gray, open-topped plastic bin, akin to a dustbin. In that bin were some tools, cleaning supplies and a cloth Nike bag with drawstrings. In the Nike bag was a hoodie in which the Berretta and the BB gun were wrapped. The Berretta is a prohibited firearm because of its small size, which makes it easier to conceal. It was loaded with seven rounds in the magazine and one in the chamber, ready to fire. The BB gun was a larger weapon with a longer barrel. Mr. Yizhak was arrested without incident.

B. Mr. Yizhak’s Circumstances

[5] Mr. Yizhak is 32 years old. He was 29 at the time of the offence. His family came to Canada from Uzbekistan when he was 10 years old. His parents are small business owners. His father, in his 60s, continues to work. Aside from having been employed in the towing industry, Mr. Yizhak has been steadily employed at a clinic where he is extremely well-liked by patients and highly valued by his employers. He and his girlfriend have recently had a baby. He owns his condo. He has strong support from his family and community.

III. Positions of the Parties and the Central Issues

[6] Citing R. v. Nur, 2013 ONCA 677 (aff’d 2015 SCC 15) and related authorities, the Crown seeks a three-year penitentiary sentence along with s. 109 and DNA orders. Citing cases in which conditional sentences have been imposed, Mr. Yizhak seeks a conditional sentence. He does not quibble with the ancillary orders sought by the Crown.

[7] The Crown acknowledged that the range for this offence includes two years less-a-day in the reformatory. The central issue, then, is whether a conditional sentence is the appropriate sentence for Mr. Yizhak. The parties also disagree about whether some violent circumstances that preceded the offence and a text message that Mr. Yizhak received help explain his decision to possess a firearm and thereby provide some mitigation.

IV. Analysis

A. Applicable Legal Principles

[8] Pursuant to s. 718 of the Criminal Code, the fundamental principle 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….” Just sanctions have one or more objectives listed in ss. 718:

(a) Denunciation. (b) General and specific deterrence. (c) Separation of offenders from society when necessary. (d) Rehabilitation. (e) Reparations. (f) Promoting a sense of responsibility.

[9] It is accepted that the primary objectives of sentencing in cases such as this are general deterrence and denunciation. Of course, rehabilitation is also a relevant objective.

[10] Sentences must be individualized. Arriving at the fit and proportional sentence for a given individual “is a delicate task”: R. v. Morris, 2021 ONCA 680 at para. 66. To do so, sentencing judges must prioritize and blend the different objectives of sentencing in order to properly reflect the gravity of the offence and the moral blameworthiness of the offender. Ultimately, judges must use proportionality as their lodestar (s. 718.1).

[11] Proportionality requires that the court consider the gravity of the offence and the moral blameworthiness of the offender. It is determined both on an individual basis – that is in relation to the accused and the offence they committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances.

[12] The latter principle, known as parity, requires that “material differences between the circumstances of the offence or offender” be “reflected in the sentences imposed:” ibid at para. 108. Sentencing judges must also exercise restraint, particularly when dealing with a first offender. This means imposing the least restrictive or severe punishment that is consistent with the principle of proportionality: ibid at paras. 111-112.

B. Gravity of the Offences

[13] The offence Mr. Yizhak committed is very serious. Guns like the one Mr. Yizhak possessed exist to maim or kill other human beings. While it was hidden, it was easy to access and in no way secure. It was small, easy to conceal and ready to fire at the simple pull of the trigger. Having chosen to possess an illegal handgun, Mr. Yizhak decided that there were circumstances in which he would be willing to use it. He presented a real risk to public safety. Firearm offences are, and have been, a great concern in Toronto and its surroundings. Sentences for such crimes must have strong deterrent and denunciatory effects.

C. Mr. Yizhak’s Degree of Responsibility

[14] Motive, or the reasons animating an offender’s decision to possess a firearm, can be a relevant consideration on sentence. That said, it has only a limited impact: ibid at para. 101. In October 2018, an associate of Mr. Yizhak in the towing industry was shot at by rivals near Mr. Yizhak’s place of employment. A short time later, someone shot out some windows at one of the clinic locations. On December 24, 2018, Mr. Yizhak’s friend Cadi was shot and killed. Prior to the first shootings, Mr. Yizhak had received a text message that can be interpreted as threatening him and Cadi.

[15] Mr. Yizhak remained silent throughout the proceedings, as was his right. The text message was admitted into evidence because it had been on Mr. Yizhak’s phone, which had been seized by police. However, the Crown argued that the violence and the text messages should carry no weight in this proceeding, because Mr. Yizhak did not explain what role, if any, those events played in his decision to possess the firearm nine months later.

[16] I take into consideration the gun violence to which Mr. Yizhak and his associates were exposed, and the text message he received, because objectively, they are extremely frightening; they are also sufficiently close in time to the offence before this court. Mr. Yizhak’s degree of responsibility, while high, is somewhat attenuated by those circumstances. That said, as a society, we cannot tolerate persons choosing to possess loaded illegal firearms out of concern for their safety.

D. Aggravating and Mitigating Factors

i. Aggravating factors

[17] The aggravating factors in this case are that Mr. Yizhak possessed a loaded, prohibited, easily concealable pistol that was ready to fire in a condominium building. In doing so, he posed a real risk to public safety.

ii. Mitigating factors

[18] Mr. Yizhak has no prior criminal record. He enjoys strong support from his family and community. The eleven people who wrote character letters gave extremely positive descriptions of him and his character. He is a good candidate for rehabilitation.

[19] Mr. Yizhak spent 26 days in pre-trial custody (which is the equivalent of 39 days). He was bound by house arrest conditions for approximately one year, and then by a curfew for approximately 18 months. The Crown argues that he should receive little credit for his time under house arrest for two reasons. First, many exceptions permitted him to be out of his home to work or while in the company of sureties or persons approved by them. Second, during certain parts of the pandemic, “we were all on lockdown.”

[20] I find that some credit must be given for the house arrest and time spent with a curfew, pursuant to R. v. Downes, 2006 ONCA 3957, [2006] O.J. No. 555 (C.A.). With or without exceptions, such a bail is a restriction of liberty while someone is presumed innocent. The COVID lockdown argument is specious and must be rejected. We were not all susceptible to being arrested and detained in a correctional facility for disobeying COVID restrictions.

E. The Applicable Sentencing Range

[21] It is important to plot Mr. Yizhak’s possession of a firearm on the spectrum described by Justice Doherty in R. v. Nur, 2013 ONCA 677 at para. 51 (aff’d 2015 SCC 15, at para. 82). At one end stands the outlaw who possesses a firearm as a tool of his or her criminal trade; at the other, a person who commits what is essentially a regulatory offence. Mr. Yizhak’s offence is serious and lies between the two extremes. However, he is not the “outlaw” that Justice Doherty described. There is no evidence that he was engaged in any other criminality or that he carried the firearm as a tool of the trade. Cases falling in the middle of the spectrum – that do not involve additional criminal activity – can and do attract sentences in the upper reformatory or low penitentiary range: Morris at paras. 125 and 131. As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49 at para. 19, "[m]ost s. 95 offences will attract a penitentiary term even for first offenders," and even "less serious" versions of the crime than are typically committed "will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders."

[22] In R. v. Johnson, 2022 ONSC 2688, a case relied upon by the Crown, Justice Goldstein found that the range for a first offender in a gun possession case was two to four years (at para. 38); see also R. v. Blagrove-Robinson, unrept’d August 9, 2022 (S.C.J.) at para. 60. I agree: see also R. v. Edwards, 2023 ONCJ 53.

[23] Having considered the gravity of the offence, Mr. Yizhak’s degree of responsibility, the aggravating and mitigating circumstances, the objectives and principles of sentence and the leading authorities, I find that the appropriate sentence for Mr. Yizhak is a sentence of imprisonment of two years less one day. I am therefore required to consider whether a conditional sentence is appropriate in this case: Morris at para. 125; see also R. v. Desmond-Robinson, 2022 ONCA 369.

F. Appropriateness of a Conditional Sentence Order

[24] In Morris at para. 126, the Ontario Court of Appeal explained that “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.”

[25] The Crown did not argue that a conditional sentence would endanger the public in this case, and I am satisfied that it would not. Mr. Yizhak is of prior good character. There is no evidence that he has ever used the handgun or that he was involved in any other criminality. He has strong support in the community and is a good candidate for rehabilitation.

[26] While a conditional sentence would foster Mr. Yizhak’s rehabilitation, I find that it would not be sufficiently responsive to the needs of denunciation and deterrence. I also find that a conditional sentence in this case would violate the principle of parity.

[27] Mr. Yizhak relied on the following cases in which conditional sentences were imposed: R. v. Beharry, 2022 ONSC 4370, [2022] O.J. No. 3409 (S.C.), R. v. Desmond-Robinson, 2022 ONCA 369, R. v. Lewis, 2022 ONSC 1260 and R. v. McClarty-Mathieu, 2022 ONCJ 498. With respect, those cases bear no useful resemblance to Mr. Yizhak’s. They all involved individuals whose moral responsibility was attenuated by the impacts of anti-black racism. Lewis and McClarty-Mathieu also involved guilty pleas and their attendant remorse, which are powerful mitigating factors. In Lewis, the accused had also been subjected to harsh conditions of pre-trial detention.

[28] Cases that are more like Mr. Yizhak’s attract upper reformatory sentences, even where the accused has pleaded guilty: see R. v. Marsan, 2020 ONCA 638, R. v. Bokhari, 2018 ONCA 183, R. v. Filian-Jimenez, 2014 ONCA 601, R. v. Ishmael, 2014 ONCJ 136, R. v. Shomonov, 2016 ONSC 4015, R. v. Boussoulas, 2014 ONSC 1536, R. v. Doyle, 2015 ONCJ 492 and R. v. Wright, 2018 ONSC 4209.

[29] I find that the fit and proportionate sentence in this case is a jail sentence of two years less-a-day. I would reduce that period to 20 months to reflect Mr. Yizhak’s pre-trial custody and restrictive bail conditions.

[30] Mr. Yizhak will also be placed on probation for a period of 18 months, during which he will be prohibited from possessing any weapons as those are defined by the Criminal Code.

[31] Mr. Yizhak will be bound by a s. 109 order. He will be ordered to provide a sample of his DNA for the DNA database. The firearm and BB gun will be forfeited.

[32] The s. 92(1) count will be stayed at the Crown’s invitation.

Released: March 3, 2023 Justice Patrice F. Band

[1] It is explained in reasons found at 2022 ONCJ 360, 2022 ONCJ 377 and 2022 ONCJ 476.