Ontario Court of Justice

Date: 2024 12 30 Court File No.: 23-39102393

Between:

HIS MAJESTY THE KING

— AND —

CHAD FLARO

Before: Justice Julien R. Lalande

Heard on: October 30th and November 22nd 2024 Reasons for Judgment released on: December 30th 2024

Counsel: Isabel Blanchard................................................................................. counsel for the Crown Jeff Langevin...............……………………..….…….counsel for the accused, Mr. Flaro

Lalande J.:

Overview

[1] Mr. Flaro was convicted after trial of 11 firearms-related offences under sections 86, 88, 92 and 95 of the Criminal Code. Essentially, he was found in a detached garage with a number of guns, including a handgun, a shotgun and two rifles. Some of the guns, including the handgun, were loaded. Mr. Flaro explained that he was armed and consuming crack or cocaine to stay alert as he was fearful that some debt-collectors would attempt to harm him or his family over some drugs that were seized during an unrelated arrest.

Principles of Sentencing

[2] My task is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives in Part XXIII of the Criminal Code (R. v. Morris, 2021 ONCA 680 at para 13).

[3] To accomplish this task, I am guided by the purpose and principles in section 718 of the Criminal Code:

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.

[4] I also consider the fundamental principle of sentencing in s. 718.1 of the Criminal Code, which provides that:

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

[5] In applying these principles, I recognize that the illegal possession of firearms is a serious crime. Offenders who possess firearms for criminal purposes outside of the licensing and registration requirements, particularly loaded handguns, should attract exemplary sentences that emphasize deterrence and denunciation (R. v. Nur, 2015 SCC 15).

Positions of the Parties

[6] Mr. Langevin, on behalf of Mr. Flaro, seeks a sentence of 18 months jail and asks that the 12.5 months served to date be credited to Mr. Flaro at a rate of 1.5:1. He asks the Court to consider that Mr. Flaro is a pro-social individual who came into to some unfortunate circumstances.

[7] The Crown seeks four years jail, casting Mr. Flaro as an anti-social individual whose evidence did not make any logical sense. Ms. Blanchard relies on the authorities of R. v. Ferrigon, 2007 ONSC 16828 at paragraph 25, Chivanga, 2020 OJ No 3292 (OCJ) at paragraphs 7-10 and Jean, 2015 OJ No 349 (SCJ) at paragraph 16-20, in support of her argument that the illegal possession of guns for a criminal purpose must attract an exemplary sentence. The Crown also argues that Mr. Flaro is not entitled to any presentence custody.

Circumstances of the Offence

[8] The circumstances of the offences are described in detail in my judgment from the trial and I will not repeat them here except for some new information that surfaced in the presentence report as well as in Mr. Flaro’s testimony at his sentencing hearing.

[9] Mr. Flaro explained that on March 20, 2023, he was convicted of possessing cannabis for the purpose of selling it. He was sentenced to conditional jail for a period of two years. During his testimony, Mr. Flaro explained that he was in a truck that had been stopped on Cornwall Island carrying over 300lbs of cannabis. He felt compelled to accept responsibility given his view that the onus was on him to know what was in the vehicle. He testified that he pleaded guilty to the charge under the Cannabis Act despite not having actual knowledge of the drugs in the vehicle.

[10] The driver of the truck later disappeared, according to Mr. Flaro. Some unknown persons then began to inform him that he owed $300,000 for the seized cannabis. The nature of the threats was vague in the evidence of Mr. Flaro but, as I understood it, he was told to “be ready” as someone would show up.

[11] Mr. Flaro explained that, despite these threats, he was determined to abide by the house arrest condition stemming from his conditional sentence. He also did not call police. Instead, he began using cocaine and then smoking crack daily to stay alert. He had already been using those drugs for a few months before his arrest while living in the detached garage at his mother-in-law’s residence and in a period of deep depression.

[12] With respect to the firearms, Mr. Flaro explained that he had been previously licensed to possess the long guns. However, some eight years ago, he lost his wallet and his license expired. Since, Mr. Flaro has been too busy to do the course required to have his license reinstated and took to simply possessing the guns illegally and using them to hunt.

[13] As for the loaded 9mm Glock handgun, Mr. Flaro explained that his grandfather gave it to him at some point prior to passing away in 2017. Mr. Flaro used it for protection while hunting near Monkland as he was concerned about coyotes and other animals while out walking near dusk. I note that the handgun is a restricted firearm and did not have a serial number.

[14] On 18th of December 2023, Mr. Flaro testified that he had been awake for two days. At around 3:30 or 4:00am, he heard noises that he thought to be someone near the fence or boards piled outside. He pulled out his guns and began loading them, prepared for the worst. A while later, he heard a noise that he thought sounded like an iPhone alarm coming from outside the garage and worried that someone was trying to lure him outside. About 30 minutes after that, he heard the alarm sound again and then some rustling. Closer to morning, he heard other noises, including alerts from a motion detector outside. When pressed in cross-examination, Mr. Flaro said for the first time that he saw someone’s legs come into view on his security camera at one point.

Circumstances of the Offender

[15] I have the benefit of knowing a significant amount of information about Mr. Flaro, who testified at his sentencing hearing and submitted to cross-examination. I also have a presentence report and some information from Mr. Flaro’s mother-in-law, Ms. Ferguson, who gave evidence at trial.

[16] Mr. Flaro was raised in a pro-social environment. His parents owned a towing business and two of his uncles were members of the Canadian Forces. By all accounts, he had strong bonds with his family, good role models and a positive upbringing.

[17] As a child, Mr. Flaro was diagnosed with Oppositional Disorder and Attention Deficit Hyperactive Disorder. He was able to overcome those challenges while in school and obtain a certification in auto mechanics and diesel mechanics.

[18] Prior to the pandemic, Mr. Flaro operated a successful diesel mechanic business in the Cornwall area after working as a foreman for a larger company for 11 years.

[19] Mr. Flaro was in a relationship with his former co-accused, Kathleen Ferguson, for over 17 years. The two had four children who were, at the time of the presentence report, 6, 9, 12 and 15 years old. The family lived with Mr. Ferguson’s mother, Constance, and raised their children in her home.

[20] Since his early adulthood, Mr. Flaro has struggled with substance abuse. His initial addiction was to opiate painkillers. With some assistance from the Change Health Care organization and the controlled use of suboxone, he was able to eventually quit the opioids. Then, in 2023, Mr. Flaro had started using cocaine and crack. He disclosed this in his evidence and to the probation officer. As mentioned, he came to use them in an effort to stay alert as he was the subject of threats from criminal associates.

Aggravating and Mitigating Factors

[21] There are several factors which I consider as aggravating:

• Mr. Flaro possessed a number of firearms illegally for a lengthy period;
• He also consumed hard drugs around the guns intentionally and on a regular basis leading up to the offences;
• Mr. Flaro loaded the firearms, showing that he was prepared to use them. This increased the level of danger significantly; [1]
• There were children present in the home and the garage was next door to a school. It was near 8:30am on a school day when police arrived, and I take judicial notice that would be near the start of the school day and therefore many personnel and students would be in the vicinity; and
• Finally, while Mr. Flaro wanted some help when he felt that he was in danger, he sought to dissuade his mother-in-law from calling police and encouraged her to call back and lie to them in order to avoid their detection.

[1] Section 95 requires that the firearm be loaded or to be near readily accessible ammunition and I do not consider the loaded handgun as aggravating to the extent that it is an element of the offence.

[22] I do not consider Mr. Flaro’s breach of his conditional sentence as aggravating as I am aware that he will be punished in a separate forum.

[23] There are also important mitigating features. Mr. Flaro deserves credit for his hard work. For a long while he made an honest living, despite significant challenges he faced with ADHD, Oppositional Defiance Disorder and dependence on painkillers. He provided for his family and did well by them. He also has the unflinching support of his parents, who have faithfully attended Court and his mother provided very helpful information for the presentence report.

[24] Although I am skeptical about some things he said during his evidence, I recognize that Mr. Flaro does accept responsibility for his actions. I can tell listening to him that he is a smart man and has reflected a lot about what happened. I am convinced that he has some insight. I can also understand his frustration with his situation and the fact that he wants to be out of custody and caring for his children. That he accepts responsibility during these difficult circumstances is meaningful in my view.

Range of Sentence

[25] The most serious offence committed by Mr. Flaro is count 11, which is the possession of a loaded, restricted firearm, being the Glock handgun. My review of the law suggests that, in general terms, sentences imposed for section 95 offences can be categorized into three ranges: sentences (including conditional sentence orders) under three years, sentences ranging from three to five years and sentences over five years. I emphasize that these ranges are general in nature and not strict categories. I also recognize that sentencing is an individualized process that should not be treated as a mathematical exercise (R. v. Lacasse, 2015 SCC 64 at para 54, 57, R. v. M.(C.A.), 1996 SCC 230 at para 92). I consider these ranges as context for the positions of the parties in this case.

1) Sentences Below Three Years (including conditional sentences)

[26] The sentences imposed in these cases often share one of the following features:

• They are reduced to account for totality where longer sentences are imposed alongside them (R. v. Talbi, 2020 ONCA 388, R. v. Johnston, 2020 NSPC 12, R. v. Leach, 2019 BCCA 451) or reductions are imposed to account for state misconduct (R. v. Morris, 2021 ONCA 680).
• The cases have significant mitigating factors, such as evidence of systemic racism and discrimination (R. v. Anderson, 2021 NSCA 62, Morris, supra), young first-time offenders with significant rehabilitative potential (Morris, supra at para 178) or personal circumstances such as health issues (Morris, supra, R. v. Sellars, 2017 BCSC 2236, R. v. Sellars, 2018 BCCA 195, R. v. Boussalas, 2015 ONSC 1536, R. v. Devink, 2016 BCSC 1658); or,
• The offenders fall outside of the “true crime” spectrum or at the low end of the “criminal” range (R. v. Holt, 2015 BCCA 302 at paragraph 19).

[27] I am also aware through experience that many cases resolve by way of guilty plea and often with joint positions for sentences under three years. I recognize that these cases are not well represented in the indexed reports which I rely on.

2) Sentences in the Range of 3-5 Years

[28] A majority of cases seem to fall close to the three-year mark. Often, these cases include additional elements of criminal activity like drug dealing (R. v. Aubichon, 2015 ABCA 242, R. v. Bedi, 2015 ABCA 361, R. v. Do, 2019 BCCA 191, R. v. Crevier, 2015 ONCA 619, R. v. Endean, 2017 BCCA 125, R. v. Maskell, 2019 BCCA 352, R. v. Marshall, 2015 ONCA 692, R. v. Griffith, 2019 ONSC 358 and R. v. Patel, 2019 ONSC 6302). They also see offenders who are subject to a firearms prohibition at the time of the offence (Aubichon, supra R. v. Kachuol, 2017 BCCA 292 R. v. Vroom, 2016 NBCA 43, Patel, supra, R. v. Abdullahi, 2014 ONSC 272) or being in possession of multiple firearms (R. v. Bedi, 2015 ABCA 361, R. v. Khiar, 2015 ONSC 352).

[29] Sentences in this range include first-time offenders (Nur, supra, R. v. Do, 2019 BCCA 191, Mohiadin, supra, Marshall, supra,) and offenders with significant unrelated criminal records (Aubuchon, supra, Abdullahi, supra, Bedi, supra, Patel, supra, Vroom, supra, Crevier, supra, Khiar, supra, Griffith supra,). Some offenders have records that are dated (Maskell, supra) or minor (Patel, supra). Of note, while many offenders in this range have a prior criminal history, those with a prior conviction for a firearms-related offence usually receive a sentence in the high end of the range, described below.

[30] Also noteworthy is that the age of offenders in the 3–5-year range is mixed. There are both mature recidivists (Do – 43) and relatively youthful offenders with little-to-no criminal history (Bury – 19, Mohiadin – 19, Marshall – 23, Patel – 25, Lee – 27).

[31] As was the case in Nur, many offenders in this range enjoy community support and significant rehabilitative prospects.

3) Sentences Above 5 Years

[32] The main factors common to sentences in the highest range are offenders with significant and related criminal records (R. v. Hebrada-Walters, 2019 MBCA 102, R. v. David, 2019 ONSC 3758, R. v. Aurelus-Marmontel, 2019 QCCQ 4613), combined with one of more firearm prohibitions in effect (R. v. Showbeg, 2023 ONCA 549, R. v. Morris, 2023 ONCA 816, R. v. Barton, 2017 ONSC 4039, R. v. Omar, 2015 ONCA 2017, R. v. Owusu, 2019 ONCA 712, Hebrada-Walters, supra, David, supra, Aurelus-Marmontel, supra, R. v. Phinn, 2015 NSCA 27) and usually, but not always, prior firearms convictions (Barton, supra, Omar, supra, David, supra, Phinn, supra). In some cases, the firearms-related priors are registered on youth records (Owusu, supra and Aurelus-Marmontel, supra)

[33] The highwater mark in this subset appears to be around 8-9 years (Graham, supra, Barton, supra). The offenders in these cases had multiple prior convictions for firearms offences and were under multiple prohibitions. For example, the offender in Barton had three priors and was under two prohibitions while the offender in David had two priors and was bound by three prohibitions.

Analysis

Presentence Custody

[34] When he was arrested on December 18th 2023, Mr. Flaro was serving a conditional sentence (CSO) for the Cannabis Act offence. The CSO was imposed on March 20th, 2023, for a period of two years. Mr. Flaro was two days shy of completing his ninth month of the sentence at the time of his arrest.

[35] A breach allegation was commenced for the offences before me. The Crown also informs me that, immediately after his arrest, Mr. Flaro was detained following a bail hearing both on the breach allegation as well as the offences before me.

[36] Defence explained in submissions that the breach allegation remains outstanding in the Superior Court. It was agreed by defence counsel and the federal Crown agent that if Mr. Flaro was acquitted of the offences at this trial, that the breach allegation would be withdrawn.

[37] This has some significance to the sentencing hearing as Mr. Langevin, on Mr. Flaro’s behalf, has sought credit for his presentence custody at a rate of 1.5:1, which would amount to more than 18 months. Mr. Langevin submits that Mr. Flaro should be sentenced to the time he has served to date with no further custody. The Crown, relying on section 742.6(12) of the Criminal Code, argues that Mr. Flaro is not entitled to any presentence custody as the Code mandates that, once an accused is detained, the CSO resumes in custody.

[38] Defence have asked that I not comply with section 742.6(12) and give credit to Mr. Flaro at this hearing. It was submitted that the Court had some discretion on the matter. I invited defence to submit some authority on the issue and I was provided with the recent case of R. v. Menezes, 2023 ONCA 838. I note that at paragraph 46 of Menezes, ACJO Fairburn describes the mechanism in section 742.6(12) as one that is rooted in fairness as it ensures that the time an offender spends in custody after failing to obtain bail is not lost time for purposes of the CSO. The Court in Menezes also makes it clear that section 742.6(12) is automatic and can apply even where an offender does not apply for bail in a reverse onus situation. A similar conclusion is found in R. v. Atkinson, 2003 ONCA 17467 at paragraphs 20-1.

[39] Based on the authorities I’ve considered and the plain language of the Criminal Code, I am not persuaded that I have any discretion to credit Mr. Flaro with any time served as the legislation is clear that the clock has been running on his CSO during his time in custody in accordance with subsection 742.6(12).

[40] Defence also suggested that a solution may be found in section 742.7(1) of the Criminal Code. That section allows a sentence of imprisonment to effectively supersede a conditional sentence:

If an offender who is subject to a conditional sentence order is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence order is suspended during the period of imprisonment for that other offence.

[41] Mr. Langevin encourages me to rely on that section to characterize the time served presentence as part of the sentence of imprisonment and therefore avoid the application of section 742.6(12).

[42] I have considered section 742.7(1) and conclude that it cannot apply to retroactively deem presentence custody otherwise captured by 742.6(12) to be “a sentence of imprisonment”. This would run counter to the statutory scheme for several reasons and I provide three examples below.

[43] First, section 742.7 is intended to apply to conditional sentences being served in the community and not those which have been terminated (R. v. Marcelli, 2012 NSSC 44 (Summ Conv App) at para 19, s.742.7(4)) or where an offender is detained pending a breach hearing. As pointed out in Marcelli, this is clear when reading section 742.7(1) alongside section 742.7(4), which states that, “The running of any period of the conditional sentence order that is to be served in the community resumes upon the release of the offender from prison” (Emphasis added).

[44] Second, this approach also works against the expedited nature of breach hearings by encouraging offenders to delay their hearings in order to hedge on the outcome of a trial, contrary to the statutory scheme and instruction from our Court of Appeal that they begin within 30 days and complete in expedited fashion (s.742.6(3-3.3), Menezes, supra at para 73).

[45] Third, this approach also conflicts with section 742.6(13) which instructs that time served by an offender while detained on a breach allegation does not attract remission under the Prisons and Reformatories Act. By using section 742.7(1) in the manner proposed, it would essentially provide an option to increase that credit by re-casting the time as part of a sentence. This is obviously contrary to the intention of Parliament when considering the overall statutory scheme.

[46] I therefore conclude that Mr. Flaro’s presentence custody must count towards his conditional sentence. To be clear, if there was some discretion plainly available on the authorities or in the Criminal Code, I would have exercised it to credit Mr. Flaro with 18 months as requested. Given my conclusion, I do intend to at least consider his time served as part of the conditional sentence in conjunction with the principle of totality in imposing Mr. Flaro’s sentence.

[47] As a corollary to this conclusion, I note that, if Mr. Flaro had acknowledged the breach expeditiously as the law demands, he would have been entitled to credit at 1.5:1 for his time served. Instead, he is bound by section 742.6(13) which deprives him of earned remission. Practically, this puts him at a significant disadvantage as he has now served nearly 13 of the remaining 15 months of his CSO since his arrest date at a rate of 1:1 at the detention centre.

[48] I learned this information after I inquired with counsel in this matter about whether any potential presentence custody was available to Mr. Flaro if his detention was attributable to the CSO as dictated by section 742.6(12). Unfortunately, it became clear that if the breach had been acknowledged early in the proceedings, Mr. Flaro would have considerable presentence custody available for the offences before me. For example, if the Superior Court chose to impose the strictest penalty available in section 742.6(10) and ordered him to serve the remainder of his CSO in custody, Mr. Flaro’s entire conditional sentence could have been completed at the 10-month mark of his detention, as he would have been eligible for earned remission and statutory release. He therefore would have accumulated at least three months of presentence custody towards the offences for which he is being sentenced by this Court. Section 719(3.1) would have also potentially allowed him a credit of five months at 1.5:1.

[49] As I’ve come to understand it, Mr. Flaro’s breach allegation was delayed with good intentions and with the encouragement of the Crown. His current disadvantage was obviously unintended by the parties according to the information provided to me. This issue will need to be considered and resolved by the Superior Court with respect to its impact on his breach allegation. Having said that, I am prepared to consider, as a matter of fairness to Mr. Flaro, that to the extent he was unintentionally deprived of presentence custody on this case, I consider it as part of the overall circumstances when determining the appropriate sentence.

The Appropriate Sentence

[50] In imposing sentence, I first consider the gravity of the offences, particularly the possession of a loaded handgun. On this point, Ferrigon, the case submitted by Ms. Blanchard, is instructive. Reproduced below is an extract from paragraph 25:

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. … 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 … a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[51] I adopt these comments. Given the prevalence and seriousness of gun crime, I am of the view that the sentence which I impose must be exemplary and prioritize the principles of denunciation and deterrence.

[52] In assessing Mr. Flaro’s moral culpability, I consider the circumstances of the offence. Again, I am skeptical about some details he provided in his testimony, such as how he obtained the handgun, or the vague threats described. However, I do accept that Mr. Flaro possessed the firearms in question on December 18th, 2023, for the purpose of protection as he described. I also accept that he possessed them for a significant period prior to his arrest, including the long guns which were initially used for hunting.

[53] Based on the available evidence, I conclude that the offences in this case fall on the “true crime” end of the spectrum. Specifically, Mr. Flaro took to living in the garage and consuming crack or cocaine daily for some time prior to his arrest. He intentionally kept the weapons ready and accessible to shoot any trespassers that may attend at his residence to threaten or cause harm in relation to the drug debt he described. I wish to make it clear that I accept how some years ago Mr Flaro’s possession of the firearms after his licence expiry would have fallen on the regulatory end of the spectrum. However, the nature of things had changed by December of 2023. Mr. Flaro demonstrated a clear willingness to use the firearms and engage in a gunfight in a residential neighborhood while consuming hard drugs, rationalizing that this was necessary to comply his house arrest condition. In fact, on the night in question, he had been awake for two days using crack or cocaine and did not hesitate to load the guns when he heard some noises. It was clear that he was in a state of paranoia. Whether or not any debt-collectors did attend to harm or harass him, the criminality in question here involved Mr. Flaro deliberately creating an extremely dangerous situation with the firearms for himself, his partner, his children and nearby community members, including the students and staff at the school next door.

[54] Considering the range of sentence that I’ve outlined, at first blush Mr. Flaro’s behaviour seems to fit squarely in the mid-range of 3-5 years. He has a recent criminal record, possessed multiple firearms and was ready to engage in a gunfight in a residential setting.

[55] Most factors which are typically seen in the lower end of the range are absent here, including significant mitigating factors or exceptional personal circumstances. Mr. Flaro was not a first time or regulatory-type offender on the date in question and his culpability is significant. However, there are concerns with respect to totality and restraint, which I address below.

[56] Conversely, I note that this is also not a case that would attract a sentence at the high end of the range, nor is the Crown seeking one.

[57] I remind myself in narrowing the range of appropriate sentence that the punishment which I impose must be tailored to the circumstances of this case and is not a mathematical exercise. While the offences here were dangerous, I consider it as significant that Mr. Flaro accepts responsibility for his actions and has a long history as an upstanding citizen and businessman in the community. His achievements are even more significant in light of his struggles with an addiction to opiate painkillers, Oppositional Defiance Disorder and ADHD. Moreover, outside of his criminal behaviour, Mr. Flaro appears to be dedicated in his role as a father. His sense of urgency to be released and attend to his children is palpable when he speaks.

[58] While in these circumstances I would otherwise agree with the Crown’s suggestion that a lengthier period of custody is warranted due to the dangerous situation created by Mr. Flaro, I am persuaded that a slightly lower sentence is appropriate owing to the principles of restraint and totality as well as Mr. Flaro’s significant disadvantage given the unusual development of his case with respect to the breach hearing and presentence custody.

[59] Specifically, while he obviously did not abide by all of his conditions, Mr. Flaro did serve nine months of conditional jail between March and December of 2023 in the form of house arrest. That was followed immediately by a year in presentence custody following his arrest on December 18th, 2023. It is possible that he serve further time, still, on that breach allegation. The sentence which I impose today will be immediately consecutive to the time which he has served.

[60] Considering the overall time that Mr. Flaro has and will spend in custody, I am mindful of the principle of totality which guards against the imposition of an effectively crushing sentence. I also consider that Mr. Flaro facing his first penitentiary sentence which should be as short as possible (R. v. Borde, 2003 ONCA 4187).

[61] As a result of these circumstances, I will impose a sentence that is somewhat tempered to account for totality and restraint. This would be a sentence of three years. However, I recognize that, owing to an agreement with the federal Crown that sought to preserve resources and potentially withdraw the breach allegation, Mr. Flaro was deprived of at least three months of presentence custody in this matter. I am prepared to credit him for that portion of time. In my view, a three-month reduction to account for his lost presentence custody would not overwhelm the outcome such that it would render the overall sentence inappropriate.

[62] Therefore, I conclude that a sentence of two years and nine months is warranted. I stress that this is not an outcome that should be relied on for its precedential value, given the rather unique circumstances which I have outlined. As mentioned, I would not hesitate to impose a higher sentence absent my concerns for totality, restraint and the difficulty regarding the presentence custody.

[63] Mr. Flaro will be sentenced to two years and nine months jail on the section 95 offence (count 11), two years concurrent on the section 92 offences (counts 6-10) and 6 months concurrent on the section 88 and 86 offences (counts 1-5). I grant the Crown’s request for DNA on counts 6-11 and impose a weapons prohibition under section 109 of the Criminal Code for a period of 10 years.

Signed: Justice J.R. Lalande