COURT FILE NO.: CR/17/40000488/0000 DATE: 20181116 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - JOSE PATRICIO SERRANO and VICTOR SAMANIEGO

Kasia Batorska, for the Crown Margaret Bojanowska, for Mr. Serrano Uma Kancharla, for Mr. Samaniego

HEARD: November 2, 2018

B. L. CROLL J.

Reasons for Sentence

[1] Jose Patricio Serrano and Victor Samaniego were each found guilty by a jury of possession of a loaded restricted firearm, without being the holder of an authorization or license permitting such possession and the holder of a registration certificate for the said firearm, contrary to section 95(1) the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Criminal Code”). The offence occurred on August 17, 2015 in Toronto.

Circumstances of the Offence

[2] Mr. Serrano and Mr. Samaniego were at the Las Brisas nightclub in Toronto on August 17, 2015. Mr. Samaniego became angry because he was not allowed entry to the club due to a prior interaction with the doorman/bouncer, Mr. Mateo-Ascencio. He was threatening Mr. Mateo-Ascencio with both vulgar and aggressive words, which included threats to shoot him; and threatening gestures, such as pointing his fingers in the style of a gun. Mr. Samaniego tried repeatedly to enter the club, but was not allowed in. At one point during the evening, as Mr. Samaniego continued to act in a threatening manner, he raised his shirt and pulled a black and silver gun from his waist ‑ all the while continuing to make threats ‑ and then he passed the gun to Mr. Serrano.

[3] After that gun exchange, Mr. Serrano went back into the club. When Mr. Serrano was then exiting the club a few moments later, he dropped the gun. Mr. Serrano picked it up, left the club, and began walking with Mr. Samaniego out of the parking lot in the direction of Sheppard Avenue.

[4] When the gun was dropped, the police had been called. Upon their arrival at the club, the two officers quickly saw Mr. Serrano and Mr. Samaniego at the north-west corner of Sheppard Avenue and Rivalda Road, about a minute’s walk away from Las Brisas club. As they approached the men and yelled “police”, they observed Mr. Serrano toss a black gun behind him with a very quick motion with his right hand.

[5] A number of admissions were made at trial about the firearm that was retrieved that night by the police. These admissions include the following:

1. A firearm and a detachable box cartridge magazine were seized.
2. The handgun was loaded with one 9 mm Luger cartridge in the chamber and one 9 mm Luger cartridge in the magazine.
3. On September 10, 2015, the Ruger Model – P89, 9mm Luger semi-automatic handgun that was seized was tested by an examiner of firearms for the Toronto Police Service. The serial number on the firearm had been removed and could not be restored. The handgun functioned correctly and was found to be a restricted firearm as defined by the Criminal Code.
4. On September 10, 2015, the detachable box cartridge magazine that was seized was also tested by an examiner of firearms for the TPS. It was found to be capable of holding 15 cartridges of 9 mm Luger caliber centre-fire ammunition and is a prohibited device as defined by the Criminal Code.
5. On September 10, 2015, the two cartridges of 9 mm Luger caliber centre-fire ammunition found loaded in the handgun were tested. The cartridges are classified as ammunition as defined by the Criminal Code.

[6] This was a jury trial, and Mr. Samaniego and Mr. Mateo-Ascencio both testified. In determining the circumstances of the offence, Mr. Samaniego submits that the first time the bouncer Mr. Mateo-Ascencio saw the gun was when it was dropped by Mr. Serrano outside the club. In other words, Mr. Samaniego now appears to repeat his trial evidence that he was not seen with the gun. With respect, this submission is inconsistent with the jury’s finding that Mr. Samaniego was in possession of a loaded firearm. There is no ambiguity in the factual basis for the finding of guilt against Mr. Samaniego: it was the evidence of Mr. Mateo-Ascencio that he saw Mr. Samaniego with the gun.

[7] However, I am not prepared to accept as a fact that both Mr. Serrano and Mr. Samaniego knew about the gun throughout the day of August 17th, and knew that it would be brought to the club that night. Although the two men were together for a number of hours before going to the club, there is no evidence from which to conclude that there were discussions about the gun, or that it would be brought into the club that night.

Circumstances of the Offender(s)

Mr. Serrano

[8] Mr. Serrano is 36 years-old. He has a minor and rather dated criminal record. In 2001, he was found guilty of assault with a weapon and possession of a weapon; in 2003 fail to comply with undertaking; in 2005, mischief and uttering threats and in 2011, driving with more than 80mgs of alcohol in his blood. The longest sentence served was 90 days intermittent in 2001.

[9] Mr. Serrano has a college education, where he earned a business degree; however, since 2009 he has changed his focus and been employed in construction craftwork. On March 6, 2018 he was in a car accident, which caused injuries to his head, neck, shoulders, back, knees and wrists, but prior to that date, Mr. Serrano had been steadily employed.

[10] Mr. Serrano has a 16 year-old child, whom he supports and an almost 2 year-old child. Unfortunately, the younger child suffers from a very serious heart condition which requires constant monitoring and will require serious surgery.

[11] Mr. Serrano has close family support. His mother and sister have each written letters describing the help he provides to his mother such as cleaning, grocery shopping and other chores. Mr. Serrano has also filed a letter of support from his union shop steward, stating that Mr. Serrano has demonstrated strong leadership skills in his ability to manage a crew, and describing him as valued by co-workers and management.

Mr. Samaniego

[12] Mr. Samaniego is 29 years-old, and came to Canada as a child from Ecuador when he was 7 years-old to live with this sister’s family. He went back to Ecuador at age 14 because his mother, who had remained there, was ill. He returned to Canada at age 17, where he went to school and worked.

[13] Mr. Samaniego does not have a criminal record. He has worked steadily in the window fastening industry. As of September 2016, his mother has been in Canada as a student. She has provided a letter that states, among other positive things about her son, that Mr. Samaniego always financially supported her and his two siblings in Ecuador.

[14] Mr. Samaniego has two children, a 6 year-old from a prior relationship and a 3 month-old from his current relationship.

[15] The letters filed by his sister and current spouse both describe how Mr. Samaniego enjoys playing soccer. Counsel advises that Mr. Samaniego has volunteered at the Salvation Army.

Sentence Sought

[16] The Crown seeks a sentence of 4 years for Mr. Serrano and 5 years for Mr. Samaniego. The difference is largely rooted in what the Crown describes as the different levels of culpability between the two men. Mr. Samaniego was armed when he engaged in threats and ominous gestures towards Mr. Mateo-Ascencio.

[17] It is Mr. Serrano’s position that an appropriate sentence is in the range of 2 years, 7 months, with some 7 months’ credit being given to recognize the terms of his house arrest, resulting in a net sentence of 2 years.

[18] It is Mr. Samaniego’s position that an appropriate sentence is in the range of 2 years, 8 months, with some 7 months’ credit being given to recognize the terms of his house arrest, and 1 month credit for pretrial custody, resulting in a net sentence of 2 years.

Aggravating Factors

[19] There are aggravating factors that relate to both Mr. Serrano and Mr. Samaniego. I will address these first, before I turn to each man’s particular situation.

[20] This offence occurred in a public place ‑ a busy club and its surrounding parking lot. The firearm was loaded and ready to fire, creating a real, and potentially fatal, danger to other patrons and the staff who worked there. The firearm had an over capacity magazine and the serial number had been removed. According to Mr. Samaniego’s evidence at trial, both men had consumed alcohol by the time they arrived at the club that night. The alcohol consumption in conjunction with the possession of a loaded firearm exacerbates an already potentially perilous situation.

[21] In addition to the aggravating factors applicable to both Mr. Serrano and Mr. Samaniego, there are aggravating and mitigating factors that are specific to each man.

[22] I start with Mr. Serrano.

1. While Mr. Serrano has a criminal record, given its dated and rather minor nature, I do not consider it to be an aggravating factor for today’s sentencing.
2. However, it is aggravating that when Mr. Serrano took the gun from Mr. Samaniego, he did not divest himself of it, but rather, took it into the club. Stated differently, Mr. Serrano could have chosen to give the gun to Mr. Mateo-Ascencio or other security at the club, but instead, he willingly entered the crowded club with a loaded firearm.
3. I note that Mr. Serrano takes issue with the Crown categorization of his tossing of the gun as an aggravating factor. Mr. Serrano submits that it was reasonable not to want to have the gun in his possession when stopped by armed police officers, and that the firearm was easily found. With respect, I am not persuaded by this submission. In my view, Mr. Serrano could have voluntarily offered up the gun to the police, just as he could have voluntarily offered up the gun to the security at the club. Further, the fact that the police readily located the firearm is not the critical issue. The aggravation comes from the risk that had the police not found the gun, if Mr. Serrano’s toss had been successful in concealing it, any member of the public could have found a loaded firearm. As was the case in R. v. Mansingh, 2016 ONSC 94, [2016] O.J. No. 92 (S.C.J.), the result could have been deadly and tragic. (See R. v. Mansingh at para. 32; see also R. v. McCue, [2012] O.J. No. 6382 (C.A.) at para 15.) That there was not a disastrous result does not detract from the aggravating nature of Mr. Serrano’s effort to dispose of the firearm.
4. There are, as well, mitigating factors to be considered. Mr. Serrano has expressed his remorse in open court. He has apologized for his actions, stating that he has learned his lesson and that he will not engage in this type of conduct again. Except for this offence, he has largely lived his life in a responsible manner ‑ going to college, working, supporting his children and his mother. Although he took the loaded firearm into a busy nightclub, the videotaped evidence establishes that he was in the club for only some 30 to 40 seconds. Overall, Mr. Serrano had the firearm in his possession for less than 4 minutes. He was inside the club for 30 to 40 seconds, the 911 call was made at 1:01 a.m., when he was seen to drop the gun, and the police secured the gun at 1:04 a.m.

[23] I turn now to the aggravating and mitigating factors that are particular to Mr. Samaniego.

1. Mr. Samaniego took the loaded firearm to the club that night. He tried to enter the club many times, instigating aggressive conversation with Mr. Mateo-Ascencio, all the while knowing that he had a loaded firearm on his person. He issued threats, both verbal and by gesture, and displayed the firearm in a crowded area. The hostility and intimating conduct displayed by Mr. Samaniego aggravates his possession of a loaded firearm.
2. That said, Mr. Samaniego is a first time offender. He has expressed his remorse for the criminal conduct, noting that it has impacted his family, especially his two children. Like Mr. Serrano, Mr. Samaniego has strong family support, as evidenced by the presence of his mother, aunt and spouse in court when sentencing submissions were made and here again today. He has maintained employment, and supports his family.

Case Law

[24] All counsel have provided me with case law, for which I am grateful. However, as is always the case, and as all counsel acknowledged, sentencing is necessarily case specific. I do not propose to review in detail all the cases cited, but all have been considered.

[25] The Crown has provided a number of firearm cases where the range of sentence was between 40 months (3 years, 4 months) and 5 years.

• In R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878, varied 2013 ONCA 677, [2013] O.J. No. 5120, aff’d 2015 SCC 15, [2015] S.C.J. No. 15, the accused was 19 years-old, with no criminal record. He was sentenced to 40 months’ imprisonment for possession of a loaded prohibited firearm. Mr. Nur pled guilty and did not engage in threatening conduct in the manner of Mr. Samaniego.
• In R. v. McCue, supra, the Court of Appeal allowed an appeal from a sentence of two years and imposed a sentence of 4 years’ imprisonment, less pretrial custody, for weapons offences involving a loaded handgun. In that case, Mr. McCue had a serious criminal history, and had fled from police.
• In R. v. Mansingh, supra, Mr. Mansingh, a first offender, was sentenced to 43 months’ imprisonment on the charge of possession of a loaded firearm. Aggravating factors included his involvement in drug trafficking, his flight and as already cited, Mr. Mansingh’s attempt to discard the gun in a dumpster.
• In R. v. Duale, 2018 ONSC 3658, [2018] O.J. No. 3141 (S.C.J), Mr. Duale carried the loaded gun on the TTC, and as in this case, into a club. His gun, however, was described as a tool of his drug trafficking business, which, along with his lengthy record, were considered aggravating factors. Mr. Duale was sentenced to 5 years’ imprisonment on the possession of a loaded firearm charge.
• In R. v. Gobire, 2013 ONSC 3073, [2013] O.J. No. 2431 (S.C.J), when Mr. Gobire was patted down by police in a stairwell of an apartment building, a loaded firearm was found. He was sentenced to 4 years’ imprisonment. He had breached his bail on the charges twice, which was considered aggravating.
• In R. v. Mahamet-Zene, 2018 ONSC 1050, [2018] O.J. No. 1003 (S.C.J), Mr Mahamet-Zene, who had no criminal record, was found guilty of possession of a loaded restricted firearm and was sentenced to 42 months’ imprisonment. This was not a case where there was any threatening conduct reported; the shape of a gun had been noticed in Mr. Mahamet-Zene’s knapsack.
• In R. v. Thavakularatnam, [2018] O.J. No. 2018 (S.C.J), Mr. Thavakularatnam pled guilty. The firearm was found after a violent struggle with police at a busy mall. He was sentenced to 40 months’ imprisonment.

[26] Both defence counsel have provided cases where the sentence imposed was less than the range suggested by the Crown authorities.

• In R. v. Boussoulas, 2015 ONSC 1536, [2015] O.J. No. 1104 (S.C.J), Mr. Boussoulas received a sentence of 21 months’ imprisonment for charges relating to possession of a loaded handgun. Mr. Boussoulas had rented a home to people who used the property for a sophisticated marijuana grow operation. He was a potential witness in that criminal case and had been threatened with violence and acts of intimidation. Mr. Boussoulas felt that the police could not protect him and his family, so he bought a firearm. He had no criminal record and had always been a good family man. It was this unique and rather compelling factual background that justified the sentence imposed.

• In R. v. Caidenhead, [2015] O.J. No. 3125 (S.C.J.), Mr. Caidenhead was sentenced to 2 years less a day and 2 years’ probation for possession of a loaded prohibited firearm. However, again, there were mitigating factors different from those in the case at hand. Mr. Caidenhead had a very tragic personal history, and emotional problems.

• In R. v. James and Dawson, 2017 ONSC 473, both men were sentenced to imprisonment for 2 years less a day for firearms charges. However, this sentence is also distinguishable, given the sentencing judge’s comments in para 56-58:

  56. There is no doubt that the nature and circumstances of these offences would justify substantial terms of imprisonment.
  57. However, in my reasons for decision on Mr. Dawson's application relating to the failure to have them brought before a justice within the time prescribed by section 503(1) of the Criminal Code, I indicated that there should be a ‘meaningful reduction’ in sentence in the event that Mr. Dawson was convicted on some or all of the charges against him.
  58. Mr. James is entitled to similar consideration.

• In R. v. Doyle, 2015 ONCJ 492, Mr. Doyle had a loaded handgun in a public park. He was sentenced to 22 months’ imprisonment. However, it should be noted that he pled guilty; the Court found personally harsh conditions during Mr. Doyle’s pretrial custody; he had a difficult upbringing and had the gun for protection.

[27] What all these cases demonstrate is that the application of the sentencing principles set out in s. 718 of the Criminal Code is a highly individualized exercise, one that must reflect the unique circumstances of each offence, and the unique circumstances of each offender. That said, the universal and strong guidance that emerges from all the case law is that the primary sentencing purpose in firearms cases is denunciation and deterrence. What also emerges as a common principle is that the appropriate range of sentence, even for cases involving a first offender, is an upper reformatory sentence or a penitentiary sentence. As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, “[m]ost s. 95 offences will attract a penitentiary term even for first offenders,” and even “less serious” versions of the crime than are typically committed “will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” See also R. v. Nur, supra, at paras. 6, 107-109 and 206, affirming on this point, at paras. 41-45, 49-52, 70 and 145-149.

Mr. Serrano

[28] I again start with Mr. Serrano.

[29] I have considered all of the circumstances, and in particular, I have tried to measure the very brief time that he had possession of the firearm against his deliberate decision to take it into a crowded club, and his deliberate decision to toss the firearm when stopped by the police. I am satisfied that the gravity of this offence requires a sentence of 36 months, and that that sentence will address denunciation, deterrence and protection of the public. While a significant sentence, given the letter from Mr. Serrano’s co-worker and shop steward, it appears that he will be able to return to gainful employment once released.

[30] Mr. Serrano submits that he should be given Downes credit for the terms of his house arrest release. It is his position that he should be granted 7 months’ credit for the 27 ½-month period of what he describes as an extremely onerous house arrest. (See: R. v. Downes, 2006 ONCA 555, [2006] O.J. No. 555 (C.A.).)

[31] Mr. Serrano was on house arrest from August 20, 2015 until December 8, 2017. During that time, he was able to be outside of his home for work, to meet with his lawyer, go to court and for medical reasons. He could also leave his house with a surety, either his mother or his sister, to attend church.

[32] As of May 2017, Mr. Serrano was also allowed to go to medical appointments for his children, provided he was with a surety. This provision was added in light of the health issues of his younger child.

[33] This was not a case where Mr. Serrano was subject to strict house arrest. He was not required to remain in his residence at all times, except when in the presence of a surety.

[34] Significantly, Mr. Serrano was allowed to go to work on his own. Counsel suggests that his inability to attend the medical appointments of his younger child, who was born in November 2016, until the May 2017 variation, was a difficult and stressful restriction, and even then, he could only attend with a surety. However, there is no evidence to suggest this variation was sought before May 2017 and was not granted.

[35] While there should be some recognition for the 27 ½ months of house arrest, given these circumstances, in my view it should be modest.

[36] I credit Mr. Serrano with 4 months for the conditions of his judicial release.

[37] Mr. Serrano is also credited for the 4 days he spent in pre-trial custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068 (C.A.). Enhanced at 1.5 days for each day, he will be given credit for one week.

[38] In conclusion, Mr. Serrano is sentenced to 31 months and 3 weeks’ imprisonment.

[39] I also make the following ancillary orders:

1. Mr. Serrano will be subject to a weapons prohibition order for life pursuant to s. 109 of the Criminal Code.
2. I make a DNA order, pursuant to ss. 487.051(3) of the Criminal Code, authorizing the taking of a DNA sample from Mr. Serrano.
3. I have already made and signed the a forfeiture order, pursuant to s. 491(1) of the Criminal Code with respect to the gun and ammunition seized,
4. Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting Mr. Serrano from communicating directly or indirectly with Mr. Mateo-Ascencio or Mr. Samaniego during the custodial period of his sentence.

Mr. Samaniego

[40] I turn now to Mr. Samaniego.

[41] I have considered all the circumstances, and in particular, his deliberate threatening behaviour towards Mr. Mateo-Ascencio while armed. While I am mindful that Mr. Samaniego is a first time offender, I am also guided by the need for an exemplary sentence to achieve the sentencing objectives of deterrence and denunciation.

[42] I am satisfied that the gravity of Mr. Samaniego’s conduct requires a sentence of 48 months to address denunciation and deterrence as well as protection of the public.

[43] Mr. Samaniego also submits that he should be given Downes credit for the terms of his house arrest release.

[44] Mr. Samaniego was on a house release bail from September 2015 to August 2017. He was allowed to be out of the home to go to work. If not at work, he was allowed to be out of the home in the presence of one of 7 people named. He submits that these restrictions impacted his ability to see his 6 year-old child from a previous relationship, and overall impacted quality time with his children. There is, however, no evidence to explain why the children could not come to Mr. Samaniego to alleviate this hardship, and no evidence of any effort to vary these terms that was resisted.

[45] In my view, this is not an onerous form of house arrest. As I have just stated, Mr. Samaniego could go to work and leave his home with any one of 7 people. It is quite distinguishable from R. v. Vallada, 2016 ONSC 887 submitted by Mr. Samaniego, where Mr. Vallada was not permitted to work, even though he had four children, and where a broader variation that would have allowed him to work had been resisted by the Crown.

[46] In all the circumstances, I find that Downes credit in the amount of 2 months is appropriate.

[47] Mr. Samaniego is also credited with the 19 days he spent in pre-trial custody, on a 1.5 to 1 basis. He is given credit for 1 month.

[48] In conclusion, Mr. Samaniego is sentenced to 45 months’ imprisonment.

[49] I also make the following ancillary orders:

1. Mr. Samaniego will be subject to a weapons prohibition order for life, pursuant to s. 109 of the Criminal Code.
2. I make a DNA order, pursuant to s. 487.051(3) of the Criminal Code, authorizing the taking of a DNA sample from Mr. Samaniego.
3. Finally, I make an order, pursuant to section 743.21 of the Criminal Code, prohibiting Mr. Samaniego from communicating directly or indirectly with Mr. Mateo-Ascencio or Mr. Serrano during the custodial period of his sentence.

B.L. Croll J.

Released: November 16, 2018

COURT FILE NO.: CR/17/40000488/0000 DATE: 20181116 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - JOSE PATRICIO SERRANO and VICTOR SAMANIEGO REASONS FOR SENTENCE B. L. Croll J. Released: November 16, 2018