ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4-476/11
DATE: 20121212

BETWEEN:

HER MAJESTY THE QUEEN – and – ROGER ROBERT ALI, DANIEL RODRIGUEZ MARTINEZ, and EDGAR ALLAN QUIDAYAN Defendants

Henry Poon , for the Crown

Ostap Melnik , for the Defendant, Edgar Allan Quidayan

HEARD: November 23, 2012

SPIES J.

REASONS FOR SENTENCE – QUIDAYAN

Overview

[ 1 ] On September 26, 2012 the defendant, Edgar Allan Quidayan, pleaded guilty, at the conclusion of the Crown’s case in a jury trial in this proceeding, to the following charges:

Count 11 – That on or about May 24, 2010, in the City of Toronto in the Toronto Region, he without lawful excuse carried a firearm namely a Sig Sauer .22 caliber handgun in a careless manner contrary to section 86(1) of the Criminal Code ;

Count 14 – That on or about May 24, 2010, he was an occupant of a motor vehicle in which he knew that there was a firearm namely the Sig Sauer .22 caliber handgun, contrary to section 94(1) of the Criminal Code ; and

Count 16 – That on or about May 24, 2010, he carried a concealed weapon, namely the Sig Sauer .22 caliber handgun, contrary to section 90(1) of the Criminal Code .

[ 2 ] I withdrew Mr. Quidayan’s case from the jury and convicted him of these charges as there was ample evidence by this point in the trial to support these guilty pleas. In exchange for these guilty pleas, the Crown withdrew Count 10 which charged Mr. Quidayan with possessing this Sig Sauer handgun without being the holder of a licence, contrary to section 91(1) of the Criminal Code ; Count 12 - that Mr. Quidayan did without lawful excuse store ammunition in a careless manner contrary to section 86(1) of the Criminal Code ; Count 13 which charged Mr. Quidayan with possessing a loaded restricted firearm, namely the Sig Sauer handgun without being the holder of an authorization or licence, contrary to section 95(1) of the Criminal Code ; and Count 15 – that Mr. Quidayan had this firearm in his possession for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code .

[ 3 ] Mr. Quidayan now appears before me for sentencing.

The Facts

(a) Circumstances of the Offences

[ 4 ] In summary, the jury trial in this matter dealt with an incident that occurred between 10 and 11 p.m. on the night of May 24, 2010; Victoria Day, in a housing complex called the Maze, at 1901 Shepherd Avenue and ultimately at the home of the defendant, Daniel Rodriguez, Martinez where the defendants were stopped by police in the car being driven by Roger Ali. The theory of the Crown, which was accepted by the jury, was that Mr. Ali had a .38 caliber handgun in his possession and after someone shot fireworks at him, while he was standing near a playground in the Maze, he discharged the firearm into the air a few times. Mr. Ali was with Mr. Quidayan, Mr. Martinez and Mr. Martinez’s girlfriend, Chanele Tangco at the time. She pleaded guilty in Provincial Court and was a Crown witness at the trial. After the incident in the Maze, all four of these individuals left in Mr. Ali’s car and eventually ended up in the driveway of Mr. Martinez’s home with the police in pursuit. Ms. Tangco ran into the house with the .38 caliber handgun, which was ultimately thrown into the backyard where it was recovered by police. Mr. Ali, Mr. Quidayan and Mr. Martinez all exited the vehicle and were dealt with individually by officers arriving on scene. The Sig Sauer was found on Mr. Quidayan by Officer Moore and he was then arrested.

[ 5 ] On September 24, 2012, Mr. Poon advised me, in the absence of the jury, that although he still believed there was a prospect of a conviction on Count 13 [1] which charged Mr. Quidayan with possessing a loaded restricted firearm, namely the Sig Sauer handgun, contrary to section 95(1) of the Criminal Code ; he was prepared to withdraw that charge if Mr. Quidayan pleaded guilty to the other charges that were before the jury. His explanation was that although there was a prospect of conviction for the section 95(1) offence as the evidence established that the Sig Sauer was loaded when it was seized from Mr. Quidayan, he had no evidence as to where the baggie of .22 caliber bullets was found. An officer who might have been able to speak to that was not available to testify. Mr. Poon expressed a concern that the unexplained presence of bullets in a baggie created a possible conflict in the evidence. Mr. Quidayan agreed to this proposal and so I took his pleas in the presence of the jury on September 26, 2012 and advised the jury that as a result they would not need to return any verdicts with respect to Mr. Quidayan.

[ 6 ] On this sentencing, there are some important factual issues that I must determine. The most significant is whether or not the Crown has proven beyond a reasonable doubt that the Sig Sauer in Mr. Quidayan’s possession was loaded. There was no admission of this since the section 95(1) charge was withdrawn. Mr. Poon submits that it was and that this is a significant aggravating factor.

[ 7 ] I turn then to the evidence on this issue. Officer Moore, who was the officer that arrested Mr. Quidayan, testified that when he approached Mr. Quidayan and before doing a pat down search, he asked Mr. Quidayan if he had anything on him that could hurt anyone. Mr. Quidayan said “Yes, I have a gun” and when asked where, responded that it was in the front of his pants tucked into his underwear. This is the version of what Mr. Quidayan said that is in Officer Moore’s notes. Officer Moore pulled the gun out very gingerly as he was not sure if it was loaded and passed the gun to Officer Vo. He admitted that he did not see if the magazine was in the gun. Officer Moore did not know who proved the gun safe after he removed it from Mr. Quidayan.

[ 8 ] Officer Marks testified that at this point she was right beside Officer Moore and that she heard Mr. Quidayan tell Officer Moore that he had a “loaded” gun in the waistband of his pants. She made no mention of the gun being loaded in her notes or in her evidence at the preliminary inquiry, but said that she had an independent recollection of this. I do not accept the evidence of Officer Marks, given her earlier omission in evidence on this important point and the fact this fact is not in her notes. I prefer the evidence of Officer Moore. I find that Mr. Quidayan did not admit at the time that the gun he had in his possession was loaded.

[ 9 ] Officer Moore testified that Mr. Quidayan was very compliant. He asked him where they were coming from and he responded that they were buying weed at 1901 Shepherd. As for why he had the gun, Mr. Quidayan told Officer Moore that it was for protection because he was buying weed.

[ 10 ] Officer Coleman testified that he was approached by the officer who found the second firearm and was asked to prove it safe. He identified Mr. Quidayan’s .22 caliber firearm as the one he proved safe that night. Officer Coleman testified that he removed a small magazine from the gun and determined that there were rounds in the magazine but no chambered round; the gun was not ready to be fired. The slide would have had to have been racked back in order to fire this gun. Officer Coleman testified that the bullets appeared to be live rounds as dummy rounds are usually a different color, but he fairly admitted that he could not say for sure.

[ 11 ] When Officer Moore returned to the station he put property tags on the Sig Sauer gun, which had been proven safe by that point as well as 10 bullets which were in the magazine and a baggie of 12 bullets. Officer Moore did not know where this baggie of bullets had been found.

[ 12 ] At trial Mr. Quidayan admitted that the Sig Sauer .22 caliber handgun was a restricted firearm as defined in the Criminal Code . It was registered with the RCMP with the registration certificate issued to Mr. Quidayan and at the material time he was the holder of an authorization or licence to possess this firearm but he was not authorized nor licensed to possess it in the place and in the manner in which the evidence disclosed, namely in the waistband area of his pants while he was travelling to and from the Maze. Mr. Melnik advised me that Mr. Quidayan acquired his firearms licence in 2008 and that he purchased the firearm from a store outside of Toronto. It is a small caliber handgun. Mr. Quidayan apparently also surrendered a shotgun following his bail hearing that police had seized which has been confiscated.

[ 13 ] Given the evidence, although I accept the evidence of Officer Coleman that he proved the Sig Sauer safe and that there were rounds in the magazine and as such the gun was loaded, given his concession that he could not be sure the rounds were live rounds, as opposed to dummies, and as this firearm was never test fired, I am not satisfied beyond a reasonable doubt that it was loaded and operable with live bullets at the time it was seized from Mr. Quidayan. I agree with Mr. Poon that it likely was, given Mr. Quidayan’s reason for having the firearm with him, but that is not the test. I will therefore proceed on the basis that the Sig Sauer was not loaded with live bullets.

[ 14 ] I should say on this issue that I do not accept the argument Mr. Poon made that I should find that the jury would not have accepted such a technical defence given they obviously did not accept a technical defence for Mr. Ali who was found guilty of possessing his firearm knowing the serial number had been removed. Mr. Quidayan’s case was not decided by the jury.

[ 15 ] Another factual issue that must be decided is whether or not Mr. Quidayan knew Mr. Ali had a firearm and whether he saw Mr. Ali discharge the firearm. He was meeting up with Mr. Ali who had his own firearm based on the verdict of the jury. Mr. Poon submitted that Mr. Quidayan must have seen Mr. Ali discharge the firearm and even if he did not know whether or not Mr. Ali ditched the gun at that time or not, he could have at that time decided to disassociate himself and leave Mr. Ali. Alternatively, he could have done that when they stopped at Mr. Ali’s house. He relied on this course of conduct as an aggravating factor.

[ 16 ] I ruled a statement that Mr. Quidayan gave to police to be admissible at the trial. In his statement to police, Mr. Quidayan said that he did not know Mr. Ali had a firearm when he met him at the Maze and that the first time he realized Mr. Ali had a gun was after the fireworks, but he did not specify when. He then said that although he heard shots he did not know who they came from and that he did not see Mr. Ali discharge the gun. He said the shots could have been fireworks. He said he was the furthest one from Mr. Ali, behind the girl, a reference to Ms. Tangco, who was closer to the car. He then told the officer that he first found out Mr. Ali had a gun when they got back to Mr. Martinez’s house.

[ 17 ] Ms. Tangco testified that as they were walking back to the car, she was first in line followed by Mr. Quidayan. She testified that she saw someone shooting off fireworks towards them and that she saw Mr. Ali’s arm in the air and that she saw him firing off that gun. She did not see what Mr. Ali did with the gun after that. There were a lot of cautions given to the jury about Ms. Tangco’s evidence. Although I find Mr. Quidayan’s denial of any knowledge of Mr. Ali’s firearm while in the Maze difficult to believe, I am not persuaded beyond a reasonable doubt that he knew Mr. Ali had a handgun before Mr. Ali said there was a “stash in the whip”. By then they were stopped by police at Mr. Martinez’s house.

[ 18 ] The other relevant factual question is why Mr. Quidayan had the firearm with him. He was a legal gun owner and testified that he would go to the shooting range, although he had not used this gun in a long time. In his statement to police, Mr. Quidayan said that they were going to get some weed and he bought $40 worth in the Maze complex. He denied being a gang member and there is no evidence to the contrary. Mr. Quidayan said that this was the first time that he took his gun out. When asked if he had the gun because of the area he was going into and the reason he was going in, he answered that “could be the reason”. There is no dispute that his gun never came out of his waistband until it was seized by Officer Moore. Given what Mr. Quidayan said to Officer Moore and his statement to Officer Bois, I find that he had the firearm with him for protection because he was buying a small amount of marijuana and because of the area he was going to.

(b) Impact on the community

[ 19 ] Much has been said by this court about the serious and continuing concern over the proliferation of firearms and their illegal use resulting in many deaths and serious injuries, particularly in the City of Toronto in cases involving young men and innocent bystanders. Although I am not satisfied that the firearm in Mr. Quidayan’s possession was loaded with live ammunition or that he had accessible live ammunition in his possession, he was carrying this handgun for protection. Had Mr. Quidayan felt the need to pull this handgun out, it would have clearly appeared to be a real firearm to anyone nearby. Anyone who was armed would feel threatened and likely pull out any weapon in their possession in response. Although Mr. Quidayan would have been the likely target, this would have put innocent people at risk of being injured or killed in any cross-fire, particularly in the Maze which was crowded with adults and children on the May Victoria Day long weekend. In fact when Mr. Ali discharged his firearm into the air, someone ran from the shots into a pole and suffered a head injury.

(c) Circumstances of Mr. Quidayan

[ 20 ] A Pre-sentence Report (“PSR”) dated November 8, 2012 was filed and, as Mr. Poon fairly conceded, the report for Mr. Quidayan is positive. Mr. Quidayan is a first time offender who is now thirty years old. He is single with no dependents. Mr. Quidayan recalls a childhood free of abuse or neglect. He felt loved and cared for by all members of his family. Mr. Quidayan completed Grade 12 and graduated from high school. He reported that he was suspended from school for one week at some point as a result of fighting. He has been in a relationship with his present girlfriend for the past four years.

[ 21 ] Based on the PSR, as he is the eldest of four children, and closest to his mother, Mr. Quidayan has felt required to stay and care for her following the separation of his parents in 2006. Mrs. Quidayan reported that her health is poor and there were days when she was in pain and that her son would take care of her and take care of the home for her. Mrs. Quidayan reports that given her health issues she has come to rely on Mr. Quidayan for many duties in the home.

[ 22 ] Fortunately his parents’ separation had little impact on Mr. Quidayan and he maintains a close relationship with his father. Presently he is residing with his father as he is his surety for court. Mr. Quidayan may wish to return to live with his mother if allowed to do so.

[ 23 ] When still in school, during the summers Mr. Quidayan worked at various warehouse jobs. After graduation he worked for Rogers as a cable technician for one year. He then enrolled in broadcasting courses at Seneca College but left after two semesters. It was at this point his parents were separating and he was not totally focused on his schoolwork. He returned to his job with Rogers as a cable technician. He began to work for Teleperformance in 2008 which is a call centre. In June 2012, he was laid off from that job.

[ 24 ] Mr. Quidayan reported to the author of the PSR that at one time he was smoking marijuana on a daily basis. Shortly after his arrest, he reported that he stopped smoking all drugs. He described himself as a social drinker and does not drink to excess. He feels he does not have any substance abuse issues.

[ 25 ] Mr. Quidayan presented as being cooperative and forthcoming with the probation and parole officer. His father reported that Mr. Quidayan has always been responsible and reliable and that he believes he made a bad mistake and used poor judgment on the day of the offences. His behaviour then was out of character.

[ 26 ] Mr. Quidayan has complied with the conditions that were imposed at the time of his release following his arrest for the charges before the court and there are no outstanding charges. At the time of the preparation of the PSR he was unemployed. However, a letter dated November 14, 2012 from Sendus Express Inc. confirms that as of November 12, 2012, Mr. Quidayan has been employed as a full-time broker which requires him to be available for deliveries in Ontario from Monday to Friday from 8 a.m. till 5 p.m.

[ 27 ] The probation and parole officer concludes the PSR by recommending that given this is Mr. Quidayan’s first conviction and that he has been complying with his conditions of release, that he would be a suitable candidate for community supervision, now or in the future. He recommends that Mr. Quidayan should be encouraged to seek and maintain employment, refrain from possessing or consuming any non-prescribed drugs. He adds that performing a period of community service work would help Mr. Quidayan appreciate and value the community where he resides.

[ 28 ] A letter from Teleperformance dated August 17, 2012 confirms that Mr. Quidayan was employed with them from January 2008 to June 2012 as a full-time customer care representative. A letter from Mr. Quidayan’s supervisor at Teleperformance Canada dated September 19, 2010 describes Mr. Quidayan as “very dependable, hard working, reliable and a courteous person”. His supervisor considered him at the time to be a valued employee who had put himself in a leadership position within his team. He is described as an excellent customer relations associate.

[ 29 ] A letter from the Ontario Masonry Training Centre dated October 1, 2012 confirms that Mr. Quidayan was then enrolled in a brick and stone pre-apprenticeship program which was to end in January 2013. Mr. Quidayan completed his 20-week in-school training at the end of September 2012 and still needs an 8-12 week paid work placement in order to successfully complete the program. He apparently did not pursue this as he does not believe there are jobs in this area.

[ 30 ] Mr. Quidayan spoke directly to the court. He told me that he was really sorry for what happened, that it was a big mistake, that he exercised poor judgment and that he realizes now that little mistakes can change one’s whole life. He saw how many people were affected by this mistake, which I presume referred to his parents. He concluded his remarks by stating that he never wants to make this type of mistake again in his life. My sense was that his expression of remorse was sincere.

Legal Parameters

[ 31 ] The conviction on Count 11 for careless use of a firearm carries a maximum sentence of two years pursuant to s. 86(3) (a)(i) of the Criminal Code . The conviction on Count 14 for unauthorized possession of a firearm in a motor vehicle carries a maximum penalty of ten years pursuant to section 94(2) (a) of the Criminal Code . The conviction on Count 16 for carrying a concealed weapon, carries a maximum penalty of five years pursuant to section 90(2) (a) of the Criminal Code . There are no mandatory minimum sentences for any of these convictions.

Positions of Crown and Defence

[ 32 ] Mr. Poon asked for a custodial sentence in the range of 12-18 months less any credit for onerous bail conditions and pre-trial custody. Mr. Poon submitted that the sentences should be as follows: 18 months on Count 16, 18 months concurrent on Count 14 and 9 months concurrent on Count 11. Mr. Poon’s position is that Mr. Quidayan should not be granted a conditional sentence. Mr. Poon also asked for a forfeiture order of the Sig Sauer and ammunition, a mandatory section 109 order and a DNA order. In addition he submitted that there should be twelve months of probation with terms requiring no contact with Mr. Ali or Mr. Rodriguez, no association with anyone with a criminal record, no firearms, not to apply for a firearms acquisition certificate and to live at an address approved of by the probation officer.

[ 33 ] Mr. Melnik submitted that I should impose a conditional sentence with house arrest subject to limited exceptions for a period of 18 months to two years less a day. He argued that Mr. Quidayan is not a danger to the public and is not the type of person who will re-offend especially given the positive strides he has made since he was charged. He submitted that Mr. Quidayan would not let all of that go to waste. In the alternative, Mr. Melnik submitted a global sentence of 6-8 months is appropriate. After a credit based on restrictive bail conditions pursuant to R. v. Downes , 2006 3957 (ON CA) , [2006] O.J. No. 555 (Ont. C.A.), he submits that that would leave a one to three month sentence which could be served intermittently so Mr. Quidayan can continue his employment. Mr. Melnik took no issue with a section 109 order for ten years. However, he submitted that a DNA order was not appropriate or necessary as there was no pattern of offending.

[ 34 ] Mr. Quidayan is entitled to 11 days credit for pre-trial custody. Mr. Melnik did not ask for enhanced credit for that period of time. Upon his release, Mr. Quidayan was under house arrest from June 3, 2010 to June 20, 2011; just over one year, unless in the company of his surety or at work. On June 20, 2011, the house arrest was lifted and replaced with a curfew from 11 p.m. at night. At that time it became a fairly lenient set of conditions to the present, namely a period of 17 months.

[ 35 ] Mr. Melnik submitted that should Mr. Quidayan be incarcerated he should be given a credit of four months for the 12½ months of house arrest pursuant to the principles in Downes . He pointed out that the conditions in the case at bar were similar to the conditions in Downes and that the period of house arrest had a pretty significant impact on Mr. Quidayan because he could not go out with friends or date. For the other 17 months, Mr. Melnik submitted that a one month credit be given. This would result in a total of five months credit for restrictive bail. Mr. Poon conceded that a four month credit based on Downes would be acceptable given the onerous bail conditions.

Case Law

[ 36 ] Counsel advised me that the sentences in this area are “all over the map” and that they found it difficult to find analogous cases since Mr. Quidayan was not convicted of possessing a loaded firearm which would result in a mandatory minimum sentence of three years in this case. In addition he was a legal gun owner at the time.

[ 37 ] Mr. Poon referred me to the following cases:

(a) R. v. Morin , [1998] O.J. No. 2040 (O.C.J.) , Salhany J. rejected a conditional sentence for an offender convicted of carrying a concealed weapon and possession of a restricted weapon. A revolver was found in his pant pocket after he was involved in a single car collision and being attended to by ambulance attendants. All five chambers were loaded. Salhany J. sentenced the offender to one year imprisonment for carrying a loaded pistol because of his involvement with a criminal sub-culture. The offender had an extensive and varied criminal record although it was somewhat dated. The offender maintained he was a former biker and that his days of criminal activity as a biker were over. The court concluded that the offender was a potential danger to law-abiding members of the community who might be caught in the cross-fire. Furthermore, the court could not condone the idea of ex-bikers arming themselves for defensive measures. The fact the offender has been a biker for over 20 years and still at risk that someone would try to harm him were critical factors in the decision. This factor, the offender’s criminal record and the fact the gun was loaded make the case of little relevance here.

(b) R. v. Archibald , [1998] O.J. No. 1914 (Ont. C.A.) , very little of the facts are known. The offender was convicted of careless storage of firearms and of being an occupant of a motor vehicle in which he knew there were restricted and prohibited weapons. The offender was of previous good character and employed at the time. His co-accused was the principal offender. The Court of Appeal reduced the offender’s sentence to 18 months. There are insufficient facts to determine the relevance of this decision.

(c) R. v. Canepa , 2011 ONSC 1406 () , [2011] O.J. No. 924, (S.C.J.) the offender pleaded guilty to unauthorized possession of a firearm. The offender was arrested in his apartment and the officers located a loaded revolver under a table. The offender was 18 at the time of the offence, had no criminal record and was released on strict bail consisting of house arrest unless with his surety. He had abided by these terms. Justice Nordheimer imposed a 12 month conditional sentence. Although the firearm was loaded and was in the offender’s apartment, I find this case of assistance.

[ 38 ] Mr. Melnik distinguished the Crown’s case on the basis that I should not consider that the firearm that Mr. Quidayan had in his possession was loaded. I agree although his cases also deal with loaded firearms. Mr. Melnik relied on the following cases:

(a) R. v. Veranski , [2010] B.C.J. No. 739 (B.C.C.A.) , the offender had pleaded guilty to possession of a semi automatic handgun and a cartridge magazine without a licence. The offender was arrested in the elevator of his apartment building, carrying the handgun, which was loaded as well as ammunition in a bag. He had no criminal record and had co-operated completely with the police. The court concluded that he would not pose a risk to community safety and imposed a 21 month conditional sentence.

(b) R. v. MacDonald , 2012 NSCA 50 () , [2012] N.S.J. No. 252 (N.S.C.A.), the offender was sentenced for careless handling of a firearm and possessing a weapon for a dangerous purpose. The offender was licensed to possess the gun and when police responded to a noise complaint and kicked at his door he became alarmed and placed the loaded gun behind his back and opened the door. On appeal his sentence was reduced to time served of 14 days for the careless handling offence and time served of 18 days for the possession offence plus two years’ probation. The offender had no criminal record, was gainfully employed and was a gun enthusiast who participated in shooting competitions.

[ 39 ] Given my finding that the Crown has not proven beyond a reasonable doubt that the Sig Sauer was loaded with live ammunition, the Crown’s cases have limited relevance although I do find the decision of Canepa to be helpful. In addition, the decisions relied upon by Mr. Melnik, and for that matter the position of Mr. Poon as to the length of the custodial sentence that I ought to impose, suggest that I should give consideration to a conditional sentence in this case. There is no statutory bar to a conditional sentence in this case.

Principles of Sentencing

[ 40 ] The principles of sentencing are set out in ss. 718 , 718.1 and 718.2 of the Criminal Code and I am guided by those principles. The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence committed and the degree of responsibility of the offender, see Criminal Code s. 718.1. Subsections 718.2 (d) and (e) embody the principle of restraint in sentencing. Sentencing judges should not deprive an offender of his or her liberty if less restrictive sanctions may be appropriate in the circumstances.

The Determination of a Fit Sentence

[ 41 ] With these principles in mind, I turn to what is a fit sentence in this case.

[ 42 ] The main aggravating factor in this case is the circumstances of these offences: Mr. Quidayan took a handgun out of his home despite very strict conditions that he was required to follow to transport a firearm, which as a legal gun owner he was fully aware of. In addition, he brought the gun to a Victoria Day celebration where he must have known there would be a lot of people, including children, present. Although I have not found that the Crown has proven the gun was loaded, the fact Mr. Quidayan had the gun in his possession for protection because he was buying weed; an illicit purpose, is also an aggravating factor. He must have intended to at least brandish the gun if he felt threatened and that would have put him and others at risk. Furthermore, because he was a licenced gun owner, when he decided to use the firearm for criminal purposes, it was easier for him to access the firearm for that purpose which could be considered an aggravating factor.

[ 43 ] I find that the following are mitigating factors relevant to sentence:

(a) Mr. Quidayan has no criminal record.

(b) Mr. Quidayan is still young; he was 28 at the time of these offences.

(c) The PSR shows that Mr. Quidayan has a good support network. He takes care of his mother and is otherwise a very respectable and responsible adult. Since graduation from high school Mr. Quidayan has been steadily employed for the most part.

(d) Although it came late in the trial, Mr. Quidayan pleaded guilty to these charges. It was reasonable for him to defend notwithstanding his admitted possession of the gun given his defence that it was not loaded and given the mandatory minimum he would have been liable to if convicted of possessing a loaded firearm. In addition Mr. Quidayan expressed remorse for his actions when he addressed the Court.

(e) Mr. Poon very fairly accepted that the decision to bring the gun was a bad judgment call on Mr. Quidayan’s part and was an isolated incident. On the evidence I find it was out of character.

(f) Mr. Quidayan did not acquire the firearm for a criminal purpose; he purchased it legally so that he could shoot at a firing range.

(g) Mr. Quidayan was aware of the strict rules with respect to transport and that he would need a permit every time he transported the firearm to the range or anywhere else and obtained a permit to transport the firearm on two occasions when he changed his address. According to Mr. Melnik this shows that for some period of time at least Mr. Quidayan was diligent in terms of his responsibilities with respect to this firearm. As I have said, this cuts both ways.

(h) Because Mr. Quidayan was a licensed gun owner and purchased this firearm in a store, he is not the more typical criminal offender with a stolen firearm.

(i) Mr. Quidayan did not take the firearm out of his waistband at any time and he did not make threats with the firearm to anyone. He also did not make any effort to get rid of it when police arrived on scene.

(j) Mr. Quidayan was very upfront when investigated by Officer Moore and volunteered that he had the gun.

[ 44 ] I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, are important considerations given that these offences involve a restricted firearm. I have already commented on the impact of firearms offences have. However, given that Mr. Quidayan is a young first time offender, rehabilitation is also an important goal.

[ 45 ] In considering the submissions of counsel and in determining whether or not to impose a conditional sentence, I am guided by the decision of the Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 () , [2000] 1 S.C.R. 61. In that case the court confirmed that conditional sentences were introduced by Parliament to reduce reliance on incarceration and to increase the use of restorative justice principles in sentencing.

[ 46 ] The basic requirements for imposing a conditional sentence as set out in section 742.1 of the Criminal Code are met in this case. The appropriate sentence is one of less than two years, there are no minimum sentences, and the offences involved are not serious personal injury offences. The issue then is whether permitting Mr. Quidayan to serve his sentence in the community would endanger the safety of the community and would a conditional sentence be consistent with the fundamental purpose and principles of sentencing set out in s.718 to s.718.2 of the Criminal Code .

[ 47 ] With respect to determining whether permitting Mr. Quidayan to serve his sentence in the community would endanger the safety of the community, the court in Proulx noted:

…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. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence.

[ 48 ] As already stated Mr. Quidayan was under house arrest for just over one year, unless in the company of his surety or at work and since June 20, 2011, he has been subject to a curfew from 11 p.m. at night. He has not breached any of these conditions for what is now a period of about 2 ½ years. He has acknowledged that he made a serious mistake in taking the firearm out and I have found that his actions were out of character. On all accounts he has otherwise been a productive and law-abiding young man. In all of the circumstances, I find the risk of re-offending is very low, particularly if strict supervisory terms are imposed on Mr. Quidayan. It is not outweighed by the risk of harm should Mr. Quidayan re-offend, given the circumstances of these offences. Although one can never rule out the possibility of re-offending, I am satisfied that Mr. Quidayan does not pose any danger to the safety of the community that would preclude him from being a candidate to serve his sentence in the community.

[ 49 ] I turn then to a consideration of whether a conditional sentence would achieve the goals of sentencing. As already stated, these offences warrant an emphasis on the principles of denunciation and deterrence, both general and specific but rehabilitation is also important.

[ 50 ] Mr. Poon submitted that because this is a firearms case, I must be careful not to set a bad precedent and that Mr. Quidayan will have to take “his lumps”, namely a period of incarceration. However, this submission ignores the words of Chief Justice Lamer in Proulx when he stated:

The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. …

Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empirical evidence suggests that the deterrent effect of incarceration is uncertain. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive. [citations omitted]

[ 51 ] In my view the ultimate interests of both the community and Mr. Quidayan in this case are best served by a restorative sentence. I see no purpose in incarcerating Mr. Quidayan as I am satisfied it is unlikely that he will re-offend. Although a conditional sentence may be considered by some to be a more lenient sentence than an equivalent jail term, Mr. Quidayan must appreciate that incarceration will likely result if any of the conditions are breached.

[ 52 ] For these reasons, I have concluded that a conditional sentence is consistent with the fundamental purpose and principles of sentencing, and more appropriately achieves the objective of assisting in the continued rehabilitation of Mr. Quidayan and his ability to remain a responsible member of this community. By imposing a conditional sentence, I in no way intend to minimize the seriousness of these offences. The stringent conditions that I have imposed will reduce any risk to the community of Mr. Quidayan re-offending. I am also confident that these conditions will deter not only Mr. Quidayan but also others from committing these types of offences.

[ 53 ] I sincerely hope that this conditional sentence will help ensure that Mr. Quidayan will continue to be a productive and law-abiding member of his community and live a crime-free life. In my view, an appropriate sentence, taking into account a credit for pre-sentence custody and the strict bail terms, is 18 months to be served in the community.

[ 54 ] As for the ancillary orders, these convictions do not attract a mandatory section 109 order. However, in my view, I have the discretion to make such an order pursuant to section 110 (b) of the Criminal Code if I conclude that a weapons prohibition is desirable in the interests of safety of Mr. Quidayan or any other person. In my view such an order is warranted in this case to give Mr. Quidayan more time to mature and to ensure that if and when he acquires a firearm again he will use it strictly for legal purposes and in a legal manner. Accordingly, a section 110 order will be imposed for a ten year period. A forfeiture order of the Sig Sauer pursuant to section 491 has already been made on consent; the order was signed at the time of the sentencing hearing.

[ 55 ] That leaves the request for a DNA order. Two of the convictions for Mr. Quidayan attract sentences of five years or more and are secondary designated offences and so I have discretion to make a DNA order if I am satisfied that it is in the best interests of the administration of justice to do so. Pursuant to section 487.051(3) there are a number of factors to consider in making such an order. In this case I decline to make the order. Mr. Quidayan has no criminal record, the nature of the offences in this case would not have been more easily investigated had Mr. Quidayan’s DNA been on file and by the very nature of the order I can presume it would have some impact on Mr. Quidayan’s privacy and security of the person. I agree with Mr. Melnik that such an order is not necessary in this case.

Final Disposition

[ 56 ] Mr. Quidayan would you please stand.

[ 57 ] With respect to Count 14 – being an occupant of a motor vehicle in which you knew that there was a firearm namely the Sig Sauer .22 caliber handgun, contrary to section 94(1) of the Criminal Code ; and Count 16 - carrying a concealed weapon, namely the Sig Sauer .22 caliber handgun, contrary to section 90(1) of the Criminal Code, I sentence you to 18 months to be served concurrently, in the community, on the following conditions.

(a) You are to keep the peace and be of good behaviour;

(b) You are to appear before the Court as and when required;

(c) You are to report to a supervisor within two working days of today and thereafter when required by the supervisor and in the manner directed by the supervisor;

(d) You are to remain within the province of Ontario unless written permission to leave the Province is obtained from your supervisor or approval is given by the Court;

(e) You are to live with one of your parents at an address approved of by your supervisor;

(f) You are to make reasonable efforts to maintain your employment with Sendus Express Inc.;

(g) You are to perform 200 hours of Community Service Work as directed by your supervisor. The work is to commence within 60 days from today and shall be completed at a rate of not less than 10 hours per month in consecutive months and shall be completed to the satisfaction of your supervisor, which will include providing your supervisor with proof of attendance and completion of community service assignments;

(h) For the first twelve months of this order, you shall remain in your home, under house arrest 24 hours per day, seven days per week, and not leave your home at any time except for the following reasons:

(i) court attendances and reporting to your supervisor;

(ii) attendance at your place of employment or for employment purposes only;

(iii) attendance as required to perform your community service hours;

(iv) attendance at scheduled medical or dental appointments for yourself or your mother

(v) dealing with any medical emergency affecting you or a member of your immediate family;

(vi) attendance at a religious institution for the purpose of worship not more than once per week;

(vii) a four hour period weekly, the precise time to be agreed upon by your supervisor during which time you may attend to personal matters such as banking, purchase of groceries and running household errands;

(viii) travel directly to or from any of these activities; and

(ix) at any other time with the prior written permission of the supervisor.

(i) For the remainder of your conditional sentence, you are not to be away from your place of residence each and every night between the hours of 9:00 p.m. and 6:00 a.m., subject to a medical emergency affecting you or a member of your immediate family or any special variation granted by your supervisor for employment purposes;

(j) You are to abstain from the purchase, possession or consumption of any drugs or other substances prohibited by law except in accordance with a medical prescription;

(k) You are to attend and actively participate in treatment program(s) for drug addiction if recommended by your supervisor and sign releases to monitor compliance as needed;

(l) You are to abstain from owning, possessing or carrying any weapon as defined in the Criminal Code ;

(m) You are not to apply for nor possess a firearms acquisition certificate or any other form of gun license;

(n) You are not have any contact with, or be in the company of, or associate with, Roger Robert Ali, Daniel Rodriquez Martinez or Chanele Tangco;

(o) You are not have any contact with, or be in the company of, or associate with anyone known to have a criminal record or who is the subject of criminal charges except for members of your family or fellow employees.

[ 58 ] With respect to Count 11, the conviction for careless use of a firearm contrary to section 86(1) , I sentence you to 12 months concurrent to be served in the community on the same terms as your other sentences.

[ 59 ] In addition, there will be a discretionary weapons prohibition order pursuant to section 110 of the Criminal Code prohibiting you from possessing a weapon for a period of 10 years.

[ 60 ] An order forfeiting the Sig Sauer and .22 caliber ammunition found at the time of your arrest has already been made pursuant to section 491(1) of the Criminal Code .

[ 61 ] Mr. Quidayan, a copy of the weapons prohibition order and this conditional sentence order will be given to you by the court officials who will ensure that the applicable sections of the Criminal Code , which deal with the procedure for amending the non-statutory conditions and the procedure on any breach of conditions, are explained to you regarding the conditional sentence. Please pay very careful attention to all of these conditions and this information.

[ 62 ] Mr. Quidayan, I must tell you that breach of any of these conditions will be taken very seriously by this Court. Our courts have said that if there is a breach of a conditional sentence order, the judge should start with the presumption that you serve the rest of the time in jail. You must, therefore, appreciate that incarceration will likely result if any of the conditions of your conditional sentence are breached. I hope that the conditions that I have imposed will bring home to you the seriousness of your conduct, and assist you in remaining a productive and law-abiding member of our community.

SPIES J.

Released: December 12, 2012

COURT FILE NO.: 4-476/11
DATE: 20121212

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – ROGER ROBERT ALI, DANIEL RODRIGUEZ MARTINEZ, and EDGAR ALLAN QUIDAYAN Defendants

REASONS FOR SENTENCE - Quidayan SPIES J.

Released: December 12, 2012

[1] Note: At the trial an indictment with fewer counts was being used before the jury with the intention that the other counts would be withdrawn by the Crown at the conclusion of the trial. Count 13 was referred to as Count 7 in the indictment before the jury.