DATE: 2024·10·08 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

MICHAEL KATZ

Before Justice Michael Waby Reasons for Sentence released on 8 th October, 2024

A. Ingvaldsen........................................................................................ Counsel for the Crown A. Gold .............................................................................................. Counsel for the Accused

Waby M. J.:

Introduction

[1] On May 10, 2024, the accused, Michael Katz, plead guilty before me to four offences, namely Possession of a Loaded Prohibited Firearm, contrary to s. 95(1) of the Criminal Code, Assault Police Officer with Weapon, to wit, a taser s. 270.01(1)(a), Fail to Remain s.320.16(1) and Impaired Operation of a motor vehicle, s. 320.14(1). He appears before me today for sentencing.

[2] A number of exhibits were filed on the sentencing by counsel, including an agreed statement of facts, various pieces of video footage, victim impact statements, photographs and a comprehensive package of defence materials, including letters of support, a letter of apology from the accused letter and a psychiatric assessment prepared by Dr. Hy Bloom.

[3] The Accused committed these offences on the morning of Christmas Day, 2021. In summary, the Accused was heavily intoxicated as a result of his consumption of marijuana and while driving his car he drove into a parked Toyota vehicle on a city street causing extensive damage to this vehicle and his own. Hearing the crash, the owner of the Toyota went outside, saw the Accused who was pacing up and down and kicking the tires of the vehicle. She confronted him. The accused told her to “fuck off” and he got back into his vehicle and drove away from the scene. A second witness observed these events and followed the accused in his own motor vehicle, he too had a verbal altercation with the accused and took photographs of him and contacted the police and the accused once again drove off.

[4] Police commenced an investigation and attended the registered address of the accused where they located his car with significant front-end damage. Upon attending at the address, the two female officers spoke with a security guard. While doing this, the accused exited the building and attempted to distract the officers by providing them with some false information about “a crazy man upstairs”. The accused then walked off down St. Clair Avenue where the subsequent events took place.

[5] The security guard identified the Accused to the officers who then called out to him to stop and asked him if he was Michael Katz. The Accused denied that was his name and told the officers they had the wrong man. At his point, officers arrested Mr. Katz based upon the information they had received.

[6] A sustained and significant struggle then began between the officers and Mr. Katz during which he became increasingly agitated and consistently failed to comply with the directions of the 2 officers. Some 8 seconds after his arrest, the accused produced a black handgun in his right hand and continued to struggle with the officers while shouting at them. The officers requested assistance over their radio and informed other officers that they were dealing with someone who had a gun. Approximately 16 seconds after this, the Accused discharged the firearm, the magazine was ejected and the gun fell to the ground.

[7] The two female officers continued, without success, to try and take physical control of Mr. Katz who continued to be agitated and failed to follow their directions and an ungainly waltz occurred pending the arrival some 2-3 minutes later of additional officers.

[8] Upon the arrival of additional officers, they also attempted, unsuccessfully, to place Mr. Katz under physical control and to handcuff him. He continued to resist and finally slipped out of his t-shirt and jacket and began to run away. At this point, Mr. Katz was tasered and dropped to the ground. Despite being tasered by more than one officer, Mr. Katz still failed to comply with any directions from the officers. While lying on the ground, Mr. Katz then seized a taser that PC Kirwin had dropped and while pointing it at her, Mr. Katz activated the weapon and attempted to taser the officer. Given that the probes from the device were still embedded in him, this attempt to taser the officer proved unsuccessful and Mr. Katz further tasered himself.

[9] A member of the public recovered the handgun discarded in the street by the accused and upon subsequent inspection, it was found to be a Glock 9mm handgun with one live round in the chamber. An additional spent round was located on the kerb in the eastbound lane of St. Clair Avenue West and the magazine on the ground contained 9 further live rounds of ammunition.

[10] The Accused was finally brought under control, taken to hospital as a precaution following the use of the tasers and was the subsequently released and returned to the police division for booking and processing. I am not aware of any specific injuries suffered by the accused beyond some abrasions and minor bruising.

Position of the Parties

[11] Ms. Ingvaldsen for the Crown asks the Court to sentence Mr. Katz to a total period of incarceration in the penitentiary of 4 years, less credit for pre-sentence custody, in addition to ancillary orders including a section 109 order and DNA.

[12] Mr. Gold, on behalf of Mr. Katz, submits that once appropriate credits have been applied a conditional sentence in the range of 6-9 months is the appropriate sentence in this case. Defence counsel does not oppose the ancillary orders sought by the Crown.

[13] Crown and defence acknowledge that pursuant to section 270.03, any sentence imposed for the charge of assault peace officer with a weapon is to be served consecutively to any other punishment that is imposed for the other offences arising out of these events.

Sentencing Principles to be Applied

[14] The determination of a proper sentence calls for consideration and balancing of the principles of sentencing which are set out in s. 718 to 718.2 of the Criminal Code as well as the aggravating and mitigation factors which exist. Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

i. Denounce the unlawful conduct; ii. Deter the offender, and others, from committing such an offence; iii. Separate the offender from society, where necessary; iv. Assist in the rehabilitation of the offender; v. Provide reparation for harm done to "victims", or the community; and vi. Provide a sense of responsibility in the offender, while acknowledging the harm done to the victims and the community.

[15] Imposing a sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender and the harm caused by the crime (see: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, para. 43).

[16] The fundamental principle of sentencing is proportionality. The sentence must be proportional to the gravity of the offence and the offender's degree of responsibility.

[17] Proportionality “ensures a sentence reflects the gravity of the offence and is closely tied to the objective of denunciation, promoting justice for victims and ensuring public confidence in the justice system" while also ensuring “that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender, serving a limiting or restraining function, ensuring justice for the offender. In our criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other”. (see: R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, at para 37)

[18] A sentencing judge must also have regard for s. 718.2, which provides in s. 718.2(a)(i) that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

[19] Further, a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2 (b)); an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[20] As articulated by West J. in R. v. Booker, 2021 ONCJ 6853, “It should be emphasized that these sentencing principles do not include a principle of revenge. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case”.

[21] The principle of parity under s. 718.2(b), which states a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances is an important and laudable objective but it is important to note that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at paragraph 92:

“Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction.”

[22] Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence, they should not dominate the sentencing process.

[23] In R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 (C.A.), at paras. 29 and 30, the Ontario Court of Appeal cautioned that: It goes without saying that a fit sentence must be ascertained on an individual basis.” It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.”

Availability and Appropriateness of a Conditional Sentence

[24] Ms. Ingvaldsen for the Crown submits that a conditional sentence is inappropriate and that it would not adequately address the overriding principles of sentencing in this case, namely specific deterrence and denunciation, in what is a significant series of events involving a firearm. Mr. Gold submits that in the circumstances of this particular case and this particular offender a conditional sentence is appropriate and ultimately, he argues for a conditional sentence of 6-9 months duration.

Law

[25] In Proulx, the Supreme Court of Canada, at paragraph 127, set out the following summary with respect to the imposition of conditional sentences:

1. The conditional sentence provisions were enacted to reduce reliance on incarceration as a sanction and to increase the use of restorative justice in sentencing.
2. A conditional sentence is different than probationary measures, which are primarily a rehabilitative sentencing tool. Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty as the norm, including house arrest.
3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment. There are no presumptions in favour of or against a conditional sentence for specific offences.
4. Section s. 742.1(a) does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Such an approach, although suggested by the text of s. 742.1(a), is unrealistic and could lead to unfit sentences in some cases. Instead, the sentencing judge should apply a purposive interpretation of s. 742.1(a). In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
5. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
6. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.
7. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament's clear message to the judiciary to reduce the use of incarceration as a sanction.
8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.
11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender's best interests to establish elements militating in favour of a conditional sentence.
13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”.

[26] With respect to the issue of whether a conditional sentence is available in the circumstances of this particular case three prerequisites must be satisfied:

a) whether there is no minimum term of imprisonment; b) whether the fit sentence is less than two years; and c) whether the safety of the community would not be endangered by the offender serving the sentence in the community.

[27] Once these three questions have been answered in the affirmative, the sentencing Judge must give serious consideration to imposing a conditional sentence. Whether one is appropriate is determined by assessing whether a community-based sentence would be consistent with the purposes and principles of sentencing, above.

[28] However, in R. v. Gray, 2021 ONCA 626, at para. 44, the Court of Appeal held: The fact that a conditional sentence is available does not mean that one will necessarily be imposed. The sentencing judge is still required to conduct an individualized analysis, considering all the relevant principles of sentencing and weighing the appropriate factors to determine a fit sentence.

[29] At para. 22 of Proulx, the Supreme Court held a conditional sentence can be a “punitive sanction capable of achieving the objectives of deterrence and denunciation” for many offences. However, in paragraph 127, #8, the Court held:

“A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.”

[30] I am grateful to both Ms. Ingvaldsen and Mr. Gold for the case law and other substantial materials that they have provided me with and which I have reviewed. Mr. Gold provides a detailed and helpful analysis of a number of firearms cases in his materials and I accept that there are some distinguishing features between this case and several that the Crown seeks to rely upon, including R. v. Harutyunyan 2012 ONSC 58, R. v. Velez-Lau, 2011 ONSC 4805, R. v. Walters, 2023 ONCA 4 and R. v. Samaniego, 2020 ONCA 266.

[31] Those cases all involved penitentiary sentences of 4 years that were imposed after a trial and most of which possessed some additional aggravating feature or features when compared to the facts in this case. Mr. Katz’s remorseful plea of guilt also distinguishes his case from many others.

[32] The specifics of each case inevitably inform where cases have fallen on that spectrum. Ranges of sentence are intended to serve as guidelines, not straitjackets, and are meant to assist sentencing judges: see R. v. Lacasse, 2015 SCC 64.

[33] Mr. Gold submits that the case law suggest a sentence in the middle reformatory to minimum penitentiary is appropriate and that the extenuating facts of this case should reduce it further.

[34] Cases where a first offender's gun possession connects to other criminal activity can attract a range of between 3 and 5 years: see R. v. Elvira, 2017 ONCA 500 supra at para. 27; R. v Graham, 2018 ONSC 6817 at para. 38.

[35] The court of Appeal in Smickle suggested a lower range for gun possession offences unconnected to other criminal activity. At para. 19, they said “[o]ffences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of a sentence at or very near the maximum reformatory sentence, even for first offenders”.

Mitigating Factors

[36] I have identified and considered the following mitigating factors.

[37] I accept that you have entered guilty pleas for these offences and you have expressed remorse. I do accept that you have some insight into your actions and the role you played and the harm and significant risk you caused.

[38] You come before this court with no criminal record and as a first-time offender. You are a relatively young man of 37 years of age. You do not currently report any significant mental health issues or notable involvement with mental health professionals as an adult. Mr. Katz does not report any suicidal ideation or depressive thoughts. He advised Dr. Bloom that as a child and subsequently as an adult he was on medication for ADHD. The only other significant mental health issue identified was that relating to the recurring panic attacks flowing from his cannabis usage.

[39] You have strong family and community support and I have reviewed the numerous letters of support from your family and community members. They speak positively about many aspects of your character.

[40] You have a varied and variable employment history and are currently engaged in University education programming at Ryerson.

[41] These proceedings have been lengthy and a considerable amount of time has passed since you were arrested, charged and released on bail. I accept that your bail was strict, although rightly so. However, it imposed very significant restrictions on your liberty and it has also impacted the lives of your parents who are your sureties.

[42] I note that your bail was ultimately varied to allow you to attend both school and your counsel’s offices while unaccompanied. I accept that securing consent to these variations took some time. Although I note that it would have been open to you to seek a bail review earlier had you so wished.

[43] While your family and counsel have spoken of the embarrassment that the compliance checks caused, I have no information before me to suggest that these were inappropriate or unnecessary and any embarrassment created was an incidental result of the charges you faced. Four of which you have now plead guilty to. I accept that you have diligently and successfully complied with your bail conditions throughout these proceedings.

[44] I have also considered Mr. Gold’s submissions that I should treat the manner of Mr. Katz’s arrest and the subsequent events in the sallyport at the police division as further mitigating factors on sentence in this case.

Collateral Consequences – Force used on Arrest

[45] Although it was originally anticipated that a s.7 Charter argument was to be brought with respect to allegations of excessive force against Mr. Katz at the time of his arrest, Mr. Gold has elected not to bring that application but to seeks to raise the issue of excessive force as a collateral consequence on sentencing. The materials provided by Mr. Gold are helpful on this issue. Excessive force can be raised as a Charter violation but also as a collateral consequence in mitigation of sentence.

“...Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.” R. v. Suter, 2018 SCC 34, at para. 46

[46] The use of excessive force by the police when arresting an offender is a circumstance relating to the offender because it amounts to a form of extra-judicial "punishment" that the court must account for in arriving at an appropriate sentence. R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at para. 92.

[47] It is not disputed that the objective reasonableness of the officer's conduct must be assessed from the standpoint of the reasonable person standing in the officer's shoes, but objective reasonableness is required. R. v. Tran, 2007 BCCA 491 at para. 12

[48] Once it has been shown that the police used force to arrest an accused, the burden shifts to the Crown to justify that use of force. In other words, once the accused demonstrates that force was used against him by a police officer without consent, the Crown must meet the evidentiary burden to show that the use of force was justified.

R. v. Davis, 2014 SCC 4 R. v. Jarrett, 2021 ONCA 758, at para 61 R. v. Dube, 2024 ONCJ 10, at para. 47

[49] Mr. Gold further submits that deficiencies or inconsistencies in the officers’ notes and the body-worn camera footage compound the collateral consequences issue. Defence counsel also asserts that officers did not comply with Toronto Police Service protocols with respect to the use of Tasers, specifically that they were administered more than required, Mr. Katz was not notified about the intention to use them and that officers did not communicate among themselves as to the use and manner of use of their tasers.

[50] It is apparent that a very considerable amount of time and effort was spent on the part of defence counsel and then with the Crown on analysing the video footage in this case. It was conducted on a still-by-still basis which was extracted from the body-worn camera footage. Doing so enabled Crown and defence to arrive at a mutually satisfactory basis upon which to enter guilty pleas before me. A volume of 289 still photographs and accompanying commentary was filed as an exhibit on these proceedings by defence counsel.

[51] This considerable effort undoubtedly saved considerable court time and helped to focus attention where counsel felt it needed to be focused and the Courts should always be grateful to counsel for this degree of diligence and effort.

[52] Nevertheless, in my view what may have become apparent to the Crown and Mr. Gold after a painstaking review of the body-worn camera footage many months after this incident was certainly not apparent to the officers involved at the time of the incident itself. I am also similarly of the view that it would not have been apparent from the standpoint of the reasonable person standing in the officers’ shoes.

[53] I have reviewed the body-worn camera footage and other video footage in this case extensively and on a number of occasions. We quite rightly expect police officers to maintain high standards and not apply excessive force to those with whom they engage in their duties. The incident involving Mr. Katz on the street was dynamic, chaotic and fraught. It is important when the courts are considering real time events and the actions of all those involved that they apply a realistic and practical lens to those events. It would be artificial for the court to approach or dissect the events shown on the video footage in the same way that counsel were able to in coming to their agreed statement of facts. An objectively reasonable and practical approach much be adopted.

[54] Body-worn camera, sallyport and cell video footage all reveal that Mr. Katz was profoundly and resolutely uncooperative through the entirety of his dealings with police officers. The body worn camera footage is the best evidence available in this case and a testament to its advantages. It comprehensively captures many of the key events and in my view adequately compensates for any perceived deficiencies in the officers notebook notes in this case.

[55] With the passage of time, Mr. Katz moved from violent and actively resistant to bordering on the inert. By the time Mr. Katz was in the sallyport and the custody suite, the video footage makes it clear that the probable effect of the drugs were rendering him almost insensible.

[56] However, I do not accept the suggestion made by defence counsel or Dr. Bloom that Mr. Katz did not know or appreciate that he was engaging with police officers on St. Clair Avenue after they encountered him. I find that is patently not the case both when he first encountered the officers and throughout the balance of the incident on the street.

[57] Mr. Katz’s attempt to divert and mislead the officers when he first encountered them was clear and unambiguous. He asked them to act in their role as police officers to deal with a confected incident in his apartment building.

[58] When officers called out to him and walked towards him on the street, Mr. Katz continued in his attempts to deceive them when you falsely claimed to them that you were not Michael Katz and that they had the wrong name. This is a fiction you calmly sought to maintain until you were placed under arrest and the officer placed her hand on your arm.

[59] During the lengthy struggle with officers, he called out “just shoot me”. I am also satisfied that this was at the very least because he appreciated he was dealing with police officers who were armed. Mr. Katz also had no difficulty in quickly identifying, seizing and using the Taser that fell to the ground during your struggle.

[60] Throughout the entire incident on the street, you were clearly in full possession of your mechanical skills. The BWC footage shows that, among other things, while still pulling away from the officers, the accused:

• produces a black handgun in his right hand;
• repeatedly told officers to “stop” and tells them that he has “asked them kindly”;
• repeatedly told officers they have the wrong person He claims his name is Michael Hayden and that Michael Katz was in the building and attacked him and he asks officers to go and get him;
• repeatedly refused direction from the officers including to get on the ground;
• yells “stop and no one gets hurt”. Female officers repeatedly tried and failed to gain physical control of accused who struggles and resists throughout;
• in his continued struggle with additional officers Mr. Katz finally slipped out of his jacket and t-shirt and began to run away, at which point he is tasered.

[61] I accept that the engagement with the accused and the police while he is on the ground appears unedifying. However, as officers continued to issue directions to the accused, he continued to ignore officers as he lay on his back. His hands and arms continued to flail around in an officer’s face and he refused to comply with directions and as noted officers administered a distracting kick and then briefly pin the accused to the floor by placing a boot on his neck and the side of his face.

[62] Their actions are deliberate and measured and upon reviewing the body-worn camera footage a number of times, I observed nothing gratuitous in the officers’ actions or anything that exceeded the reasonable application of force within the context of this incident. That context was a physically strong male who had voluntarily consumed drugs who was very physically resistant, who consistently refused to comply with appropriate directions and who had tried to flee from officers after producing and discharging a handgun in the middle of a major Toronto street moments earlier while officers were investigating a fail to stop accident.

[63] I accept entirely that Mr. Katz was under the influence of marijuana that he had clearly consumed earlier in the day. It is also apparent throughout the entirety of this incident that the effects of drugs he had consumed had an increasingly obvious effect on Mr. Katz, after his eventual restraint and this is particularly noticeable at the division and in the Sallyport. The only thing stopping Mr. Katz from complying with the officer’s directions on the street was his own determination to do so.

[64] Mr. Katz refused to be calmed down by officers, despite repeated efforts by them to do so. It took 5 minutes from his arrest and first encounter with officers for the Accused to finally be brought under control and handcuffed and it required multiple officers to accomplish this. The interaction was thoroughly chaotic, and dynamic in every sense. While control of Mr. Katz may have theoretically occurred sooner this belies the reality of the situation the officers found themselves dealing with. Once Mr. Katz was finally under control, there is no suggestion of any unnecessary or gratuitous physical force being applied to him and the officer’s behaviour on the street was professional with no suggestion of anything untoward occurring. Accordingly I find there is no basis for any sentencing discount to be applied in these circumstances.

Sallyport

[65] Repeated exhortations over the course of the 4 minute video by officers show them addressing accused by his first name and clearly trying to engage him in cooperating with his removal from the police can in the sallyport.

[66] All of the physical engagement occurs at the rear of the vehicle and none of the physical interaction can be observed although the audio of the encounter is also captured on the video footage.

[67] I listened to the audio recording on a number of occasions. While the audio is occasionally muffled it is possible to hear a male voice using profanity. It appears that three individuals engage with Mr. Katz in the sallyport as they try and remove him from the police van. Two males and a female. The female and one male are repeatedly solicitous of Mr. Katz and try and persuade him to cooperate. It seems from the available audio that the other male who is present becomes intermittently frustrated with Mr. Katz.

[68] I accept that there are increasingly loud noises made by Mr. Katz as he repeatedly continued to not comply with the officers’ entreaties and that there is a degree of weariness was on the part of officers who repeatedly request his cooperation. I am not able to conclude whether Mr. Katz was unable to get up and exit the police van as suggested by Mr. Gold or simply unwilling. On the booking video I accept it appears Mr. Katz is increasingly unable to follow directions as a result of his drug use.

[69] I do find that a male individual used profanity towards Mr. Katz and that he clearly fell below the standards of professionalism that are rightly to be expected. These are standards that his colleagues maintained. Although at this stage Mr. Katz may not have appreciated what was being said, this individual’s behaviour was obviously unacceptable and no frustration on his part justified it. That said, I do not find that this lapse is such that a specific sentence reduction is merited because of it.

Aggravating Factors

[70] I have identified and considered the following aggravating factors in this case.

[71] The offences you have plead guilty to are serious. While I accept that there may be a spectrum to such offences, all firearm offences are serious and must be treated as such by the Courts. I accept that this was not an illegal firearm and does not conform to some of the stereotypes of gun crime with which the courts are sadly all too familiar.

[72] Nevertheless, the circumstances under which you possessed this firearm were unlawful and were compounded by the fact that you discharged the firearm that you were in possession of. The firearm was discharged by you on a major Toronto street at a time that many people are normally beginning their day.

[73] It is further aggravating that you discarded the loaded firearm and its magazine on a public street while continuing to engage the officers in a prolonged struggle lasting several minutes. Once again, it was fortuitous that a good Samaritan took control of this firearm and handed it to the police and that the weapon was not located by someone less civically-minded. Once Mr. Katz has finally been restrained, a female officer can be seen running along the street shouting “where’s the gun?” before she encounters the member of the public who retrieved it.

[74] It is unquestionably only a matter of sheer good fortune that neither the officers you wrestled with, nor any passing member of the public was struck by the round that was discharged from your gun and killed or injured. I am confident that the fact that these events occurred on a Christmas Day morning meant St. Clair Avenue was quieter than normal and thankfully reduced the risk of catastrophe.

[75] I have heard much about the tragedy you and your family have experienced and the profound loss you have suffered. I accept the significance of the death of your brother and its significant impact on you and your family. However, many families in our communities also continue to experience tragedy and loss from the irresponsible possession and illegal of use of guns.

[76] The entitlement of anyone to possess a firearm in our society is an extremely significant privilege, not a right. It is a privilege that comes with very significant responsibilities which you completely ignored. The accompanying risk that flowed from your actions was grave in the extreme.

[77] It is clear from the report generated by Dr. Bloom that Mr. Katz was aware that his consumption of marijuana adversely impacted his mental health. On page 26 of the report that was prepared for the defence, Mr. Katz advised that he suffered panic attacks that he knew were induced by his consumption of marijuana. He described these incidents as “very unpleasant” and that after each one, it took him some time “to get back to normal.” It is clear that Mr. Katz has been a long-term user of cannabis for some 20 years and his consumption escalated in the weeks leading up to these offences. Dr. Bloom makes it clear that Mr. Katz reported he had been increasing his consumption of cannabis in the weeks leading up to this incident.

[78] It is sheer speculation in Dr. Bloom’s report that Mr. Katz’s change of cannabis supplier may have contributed to the impact of the marijuana on him and may have exacerbated his behaviour. It is clear you were a substantial user of marijuana at the time of this incident and a regular user for years before. I also reject the suggestion in Dr. Bloom’s report that you had last consumed cannabis about a week before this incident page 28. That is clearly not the case. You had obviously consumed cannabis on the day of this incident. Indeed, it is the consumption of cannabis that Dr. Bloom and Defence counsel rely upon to explain, but not excuse, your behaviour.

[79] I accept that you did not arm yourself in anticipation of a planned conflict with police officers. However, as I have indicated, I do not accept that you did not appreciate that you were dealing with police officers for the key part of your involvement with them. I do accept that in the aftermath of your arrest the effects of the drugs on you appeared to become more pronounced.

[80] The assault on Officer Kirwan and its circumstances are also aggravating. You sought to assault this officer by using her own taser on her. Despite your level of intoxication, it is clear to me that this was a deliberate act on your part and the fact that you were unsuccessful does not significantly diminish the seriousness of your actions. Police officers perform an important and valuable role in our communities, and we rightly expect them to be held to high standards.

[81] Recent figures indicate that as of the beginning of October this year some 671 Toronto Police Service officers have been injured in the course of their duties as a result of assaults. Society has a right to expect the courts to take seriously assaults on police officers and other first responders. Being assaulted is not part of a police officers job description and the fact that Parliament has mandated that punishment for this offence is to be served consecutive to any other sentence in this case underscores this.

[82] I have read and considered the Victim Impact Statement (“VIS”) of Officers McRae and Sawan. The VIS of Police Constable McRae makes it clear that this incident had and continues to have a significant physical and emotional impact on her and her family. The incident resulted in a shoulder injury that required surgery and has impacted her ability to work as primary response officer. Unsurprisingly, the officer feared for her safety, her partner’s and that of nearby members of the public. She believed that she may be killed in this incident and that was not an unreasonable fear give the realties of this incident.

[83] I do not accept Mr. Gold’s submission that simply because at one point the firearm is shown in some still photographs to be pointing towards the ground that this reasonably diminished the legitimate concerns the officers had. From nowhere Mr. Katz had produced and brandished a loaded firearm that was subsequently discharged.

[84] The Victim impact Statement of PC Sawan similarly outlines the significant psychological impact this incident had on her and the trauma it has caused her. This has resulted in her seeking support from a psychologist as well as requiring physiotherapy to address the wrist that was injured. It also appears that there was some financial loss suffered by this officer when the preliminary enquiry was vacated as a result of a cancelled trip, although I do not attribute responsibility for this to Mr. Katz.

[85] The principle focus in this case has understandably been on the firearm and assault counts. Nevertheless, it is also clear that your actions in respect of the impaired driving and failing to remain at the scene of the accident were also serious and should not be unaddressed. Not only were you so impaired that you collided with a parked car and caused substantial damage but you also became hostile and confrontational with the victim and another civilian witness when they rightly confronted you.

[86] You sought to evade responsibility for your actions by twice fleeing the scene of these encounters. The risk you created in possessing and discharging firearm was grave. So too was the risk created by you in operating a motor vehicle as you did. Members of our community are killed and injured daily by those who drive while impaired. Your eventual capture was in no small part due to the persistence and dedication of the two civilians involved with your driving.

Sentence

[87] Your responsibility for these offences is mitigated by the various factors I have outlined previously. However, I do find that your risk of harm to society is moderate and not low as suggested by Dr. Bloom. It seems clear to me that you struggle with a significant substance abuse problem and that you have only limited insight into those substance abuse issues. I agree with Dr Bloom that much of the future risk you pose will depend on the success that you have in managing those issues.

[88] It is clear Mr. Katz has a long term and adverse relationship with drugs and or alcohol and I am confident that additional support and counselling is necessary to assist with his rehabilitation and to manage his risk of re-offending as part of this sentence.

[89] I disagree with Dr. Bloom that there is anything particularly unique about the circumstances in which Mr. Katz’s behavior occurred. Simply put, Mr. Katz consumed drugs, he did so voluntarily and knowing that they adversely affected him. He then made terrible choices while intoxicated. That model is sadly replicated in our criminal justice system on a daily basis. Mr. Katz is far from unique in that regard.

[90] I question whether it had been appropriate for you to possess a firearm for quite some time prior to this incident. Dr. Bloom reports that in the days leading up to this incident you were experiencing delusional ideas and perceptual disturbances. It is unfortunate that no one noticed this and removed the firearm from your control. Irrespective of that, you had absolutely no business being anywhere near a loaded firearm on the date of these events, let alone being in physical possession of one, in public and on a main city street. Similarly, you had no business getting behind the wheel of a car while being as intoxicated as you were.

[91] The courts have a duty to protect the public from those who unlawfully possess firearms. This also applies to those who carry them irresponsibly and discharge them in public. The Courts have a similar obligation to protect society from those who drive while impaired.

[92] I accept that you are to be treated as a first-time offender. The principle of restraint is therefore an important one. The Supreme Court and Court of Appeal have both recognized that a significant penitentiary sentence is appropriate for those offenders who fall at the so called “true crime” end of the spectrum with respect to firearms offences. I accept you were not engaged in ancillary criminal activity associated with a firearm. You were not robbing a bank or dealing in drugs.

[93] However, it is hard to see how possession of a loaded prohibited firearm, even for a first offender who comes before the court with pro-social attributes and strong family support, can attract anything less than a penitentiary sentence in the circumstances of this case. I am of the view that a conditional sentence is not appropriate and does not sufficiently meet the sentencing principles of denunciation and deterrence clearly required in this case.

[94] I find that the starting point for the total appropriate sentence in this case is a penitentiary sentence of 30 months. However, I accept Mr. Gold’s submission that the strict nature of your bail makes it appropriate for me to reduce this sentence as a result of applying so-called “ Downes Credit.” As such I shall apply a reduction of 4.5 months to that sentence.

[95] In addition to this, your 24 days of pre-sentence custody will be credited at 45 days. The challenging conditions of Toronto South Detention Centre, particularly during the pandemic are well-known to the courts and those who practise in them and I accept that you tested positive for COVID while in custody.

[96] For the reasons I have given above, I do not find that there is a basis to apply any further reductions to the sentence in this case.

[97] The net effect of these credits being applied is that you will be sentenced to 18 months imprisonment for the unlawful possession of the firearm and a further 6 months to be served consecutively for the Assault with Weapon on PC Kirwan. You will be sentenced to 30 days jail for failing to remain at the scene of the accident and this will be served concurrently. This represents a total penitentiary sentence of 2 years imprisonment.

[98] In addition to this, you will be sentenced to a period of 2 years probation.

[99] On the impaired driving, you will be prohibited from driving for a period of 18 months. This 18-month period runs consecutively to your term of imprisonment. You will also be fined the sum of $2,000.00

[100] I also make the following ancillary orders. Pursuant to s.109, you will be prohibited from possessing any weapon as defined by the Criminal Code for a period of 10 years. There will also be an order made for the taking of your DNA.

[101] I shall review the proposed probationary conditions with counsel.

Dated: October 8, 2024

Justice Michael Waby