COURT FILE NO.: CR 17-70000484-0000
DATE: 20181214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABADULA BIYA
Defendant
M. Gharabaway, for the Crown
P. Genua, for the Defendant
HEARD: November 5, 2018
REASONS FOR SENTENCE
CAROLE J. BROWN, J.
[1] On August 16, 2018, Abadula Biya was convicted of eight charges as follows: possession of a loaded firearm (section 95(1); careless storage of a firearm (section 86(1); careless storage of ammunition (section 86(1); possession while unauthorized (firearm) (section 91(1); possession while unauthorized (ammunition) (section 91(2); unauthorized possession of firearm knowing possession unauthorized (section 92(1); occupant of motor vehicle knowing there was a firearm (section 94(1); possession for the purpose of trafficking in a controlled substance (MDEA), as well as possession of proceeds of crime in the amount of $1,725.
[2] He had been identified by a person, who appeared to be working at the Drake concert held at Ryerson University, to the police officer as a drug dealer present on the exterior of the fence line for the concert on September 11, 2015 and gave a physical description of that person. The police subsequently saw an individual who fit the description, with two other men getting into a vehicle. The arrest occurred thereafter. The details are described in my reasons for decision of August 16, 2018.
Circumstances of the Offender
[3] At the time of the offence, Mr. Biya was 23 years old. He is now 26 years old. He had one other conviction at the age of 18, when he was convicted of fraud under $5,000 and unauthorized use of credit card data. He received a suspended sentence and eight months’ probation.
[4] He comes from a stable, supportive family. His mother works for the school board and his father is a valet at a bank. His three siblings are all in gifted academic programs. Prior to his conviction and sentencing, he had been enrolled in a four-year advanced diploma program in Child and Youth Care, of which he had completed 3.5 years. He did not commence his last semester, which would have started in September, due to his conviction and pending sentencing.
Positions of the Parties
Position of the Crown
[5] It is the position of the Crown that, taking into account the principles of sentencing, the serious nature of the use of unauthorized firearms in Toronto, the offence of trafficking in a Schedule I drug, and taking into account the aggravating and mitigating factors in this case, a global sentence of 4½ years, with ancillary orders, including a DNA order, section 109 weapons prohibition and forfeiture orders should be imposed.
[6] It is the position of the Crown that the jurisprudence over the last two decades has emphasized the need for exemplary sentences to denounce the prevalence and use of firearms in Toronto. The trafficking of drugs in conjunction with the use of firearms has been identified as an aggravating factor.
[7] The Crown seeks consecutive sentences of 3½ years for the possession of unauthorized firearm and ammunition offences and one year for the trafficking in MDEA. The Crown has broken down the amount of time it seeks for the other five offences, which the Crown submits should be concurrent sentences. Finally, the Crown concedes that one conviction, Count 5 (possession while unauthorized (firearm)), should be subject to the Kienapple principle.
[8] It is the position of the Crown that the Pre-sentence Report (PSR”) is not positive as Mr. Biya minimized his previous criminal record and showed no remorse, and had varied his bail in order to attend Seneca College although, at the time of the PSR, stated that he was not in school.
[9] As regards the defence’s position that credit should be given for pretrial custody in the amount of 51 days, the Crown agrees. As regards the defence’s position that a Downe credit of 223 days (seven months and 13 days) should be given for his restrictive bail conditions of house arrest, the Crown takes the position that, pursuant to the Criminal Code, the offender should provide the court with information concerning the impact on him of the house arrest. The onus is on the defendant to establish facts on the balance of probabilities as regards the impact, which was not done in this case. While the defence submitted that Mr. Biya should be credited with credit of one day for every five days as regards the house arrest, the Crown correctly submitted that there is no formula which has been set down by the courts and that it is left to the discretion of the sentencing judge.
Position of the Defence
[10] It is the position of the defence that Mr. Biya should receive a sentence of two years, in addition to the credit sought for purposes of pretrial custody (51 days) and for restrictive bail conditions during 1,117 days, such credit totaling nine months. The defence thus submits that a complete sentence of two years and nine months (less the nine months credit) is still in the range of an appropriate sentence for a conviction for possession of firearms, as observed in R v Nur, 2015 SCC 15, 2015 1 S.C.R. 773. While, in that case, the minimum sentence of three years was struck down, it was observed that, for firearm offences which constitute true crime activity and not regulatory offences, a sentence of three years or more would still be appropriate.
[11] The defence does concede that a penitentiary sentence at the low end of the range is appropriate.
[12] The defence agrees that the appropriate sentencing principles in this case are denunciation and deterrence, but that rehabilitation in a case involving a person such as Mr. Biya should also be considered.
[13] As regards the issue of consecutive or concurrent sentences, it is the position of the defence that six of the seven counts should be subject to the Kienapple principle.
[14] It is the position of the defence that the PSR is positive. The prior criminal record was unrelated to the offences for which he is currently being sentenced. He was a youthful offender. There are numerous letters of support which are positive and described him as a person with a generous, supportive character and a person who is helpful to and caring as regards his family. He comes from a stable supportive family, was attending school until the fall term and the impending sentencing, and has a good future ahead of him, making rehabilitation important.
[15] As regards caselaw cited by the defence in support of its lower range of penitentiary sentence, it was the position of Mr. Genua for the defence that, in all of those cases, a lesser sentence than the defence is seeking was imposed.
Sentencing Principles
[16] The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences that have one or more of the following objectives:
to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
to deter the offender and other persons from committing offences;
to separate offenders from society where necessary;
to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[17] The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be had regarding the principles set forth in section 718.2.
[18] The principle of parity is a governing principle which must be considered. It requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is, however, an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R v Cox, 2011 ONCA 58 (Ont. C.A) and R v L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).
[19] The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: M.(C.A.), [1996] 1 S.C.R. 500 at para 42, (S.C.C.). If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.
[20] In this case, I am of the view that the principles of general and specific deterrence, denunciation, the protection and safety of society and the maintenance of a just, peaceful and safe society are of significance. I accept, as well, that consideration must be had for the rehabilitation of Mr. Biya.
Aggravating and Mitigating Factors
Mitigating Factors
[21] Mr. Biya was a young offender with a minimal criminal record, which is not related to the present offences. He was charged when he was 18 years old with fraud under $5,000 and unauthorized use of credit card data.
[22] Mr. Biya is from a stable, supportive family. His parents are both hard-working; his mother in the school board and his father as a valet for a bank. His siblings are all in gifted programs. While he had some difficulty at school and was, for a time, diagnosed with ADHD, he was, until his conviction, in a four year advanced diploma program for Child and Youth Care, of which he had completed 3.5 years. He did not continue with his last semester, as the commencement of the fall semester coincided with the original date for his sentencing. He is intent upon finishing his program once his sentence is served.
[23] He had no concerns with the community in which he was raised and expressed no safety issues. He had never experienced trauma or witnessed violence in the community or in his home.
[24] In letters of support from family and friends, he is described as a generous, supportive person who enjoys helping others and has helped to raise his younger siblings.
[25] During the time that he was on house arrest, he complied with his bail conditions. The conditions of his house arrest were modified in February 2016 in order that he could pursue his advanced diploma program at Seneca College. His conditions permitted him to be at Seneca College for a full-time course, which counsel for Mr. Biya estimated to be 4 to 8 hours per day, 4 days per week.
[26] The defence urged that I consider application of the principles set forth in R v Morris, [2018] O.J. No. 4631 regarding taking into account systemic discrimination against and overrepresentation of blacks in the prison communities as a mitigating factor in sentencing. I will address that issue below.
Aggravating Factors
[27] Mr. Biya was convicted of possession of a firearm in conjunction with possession for the purpose of trafficking in MDEA, a Schedule I drug. The trafficking in drugs in conjunction with the possession of a firearm is an aggravating factor: R v Dass [2008] O. J. No. 1161 at paragraph 32-33. The firearms offences of which he was charged were on the true crime activity end of the scale as regards firearms offences and not simply regulatory offences, which is at the other end of the scale: R v Nur, 2013 ONCA 677 117 O.R. (3d) 401. He had a significant amount of cash ($1,725), suggesting that that he had sold a significant quantity of MDEA and/or other drugs prior to his arrest. It is of note that MDEA is typically sold at EDM parties, nightclubs and concerts like the Drake concert at Ryerson (see above).
Case Law Applicable to the Issues
Context of the Offences
[28] In the case of R v Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, the Supreme Court of Canada stated that, in sentencing, it is open to a trial judge to take judicial notice of the prevalence in the community in which the crime occurred of the crimes in question in the case. At paragraph 102, the Supreme Court stated:
[102] “… the fact that trial judges normally preside in or near the communities that have borne the consequences of the crimes in question is one of the factors in support of deferring to their sentencing decisions, and it is not necessarily necessary for them to have knowledge of the situations in other judicial districts. They are accordingly aware of the frequency of various offences in their communities and for that reason in particular, they are in the best position to determine what weight to attach to this and “to properly assess the particular combination of sentencing objectives that is just and appropriate for the protection of the community”: R v Pelletier, 2008 QCCA 1616 at paragraph 3.
Firearms
[29] As regards the use of firearms in Toronto, the courts have been explicit in denouncing their use and calling for exemplary sentences. In the case of R v Danvers, [2005] O.J. No. 3532, the Ontario Court of Appeal at paragraph 77 and 78 stated as follows:
[77] In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:
It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.
[78] There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.
[30] In the case of R v Lambert [2011] O.J. No. 3389 at paragraph 48, Kelly J stated as follows:
[48] In the six years since Danvers was decided, “the concern [over gun violence] is still unfortunately very much alive and un-satiated.” If anything, an even stronger message needs to be sent that the possession of illegal firearms will simply not be tolerated:
In my view, the paramount sentencing objectives in this case are denunciation and deterrence. The citizens of this city must be protected from individuals who choose to illegally possess weapons and even more importantly, who choose to use those weapons especially in such a premeditated and merciless manner. Individuals who choose to engage in such behaviour must be given the strongest possible message that such conduct simply will not be tolerated and if it is committed it will attract the severest of consequences. Severe consequences are also necessary to serve as a clear deterrent to others who might be inclined to engage in such conduct given the manifest danger that it poses for the lives and safety of others.
R v P.P.J., [2010] O.J. No. 5440 (S.C.J.) Nordheimer J. at paras 27 and 32-34.
[31] Akhtar J, in R v Thavakularathnam 2018 ONSC 2380, [2018 O. J. No. 2038 at paragraph 21 stated:
[21] Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crimes; spouses, romantic parties, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences.
[32] He thereafter cites numerous other cases which also recognize that exemplary sentences must be imposed in cases of the possession of unauthorized firearms in Toronto. And see: R v Mansingh 2016 ONSC 94, [2016] O.J. No. 92 at paragraphs 22-24 and R v Marshall 2015 ONCA 692, [2015] O.J. No. 5348 paragraphs 47-49, 53.
[33] In R v Mark [2018] O.J. No. 270, Campbell J, at paragraph 24, stated as follows:
[24] Courts have repeatedly observed that the criminal possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others living in the greater Toronto area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as drug trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. See R v Danvers (2005), 199 C.C.C. (3d) 490, 201O. A.C. 238 (C.A.) at paragraph 77-78; R v Brown, 2010 ONCA 745, 277 OAC 233 at paragraph 14; R v Morris, 2011 ONSC 5206, [2011] O.J. No. 3995 at paragraph 10, 58, affirmed, 2013 ONCA 233, 305 OAC 47; R v Chambers, 2012 ONSC 817, [2012] O.J. No. 462 at paragraphs 15-17, affirmed, 2013 ONCA, 311 OAC 307.
[34] Unfortunately, the dicta of the Court of Appeal in 2005 in R v Danvers, and the many cases thereafter, continue to be true today. Gun violence continues to be a plague in the Greater Toronto Area. Severe or exemplary sentences must continue to be imposed in order to clearly signal and reinforce to the public at large and to the criminal community that resort to the use of prohibited handguns for unlawful purposes will not be tolerated in our society and in our City.
Firearms in conjunction with trafficking in drugs
[35] It has further been recognized in the jurisprudence that the confluence of drug and weapons offences constitutes an aggravating factor to be considered in sentencing: R v Dass, supra. at paragraphs 32, 33 and 114.
Consideration of Morris
[36] While the defence urged that I should consider application of the principles set forth in Morris, supra regarding taking into account systemic overrepresentation in prisons in sentencing, having read and considered the case, I do not find that the circumstances before me as regards Mr Biya are applicable. Kevin Morris was raised in a poor family, experienced a difficult childhood, raised by his mother who worked numerous jobs, had difficulty in school and changed schools many times, did not graduate from high school, was critically stabbed and injured in 2013, displayed anger, anxiety and impulsiveness and ultimately was incarcerated in a Youth Centre and lived in a dangerous, inner-city public housing complex. In contrast, Mr. Biya lived in a stable, supportive family, had a good education, indicated that he had no concerns about his neighbourhood or the community in which he was raised and did not witness violence either in the community or at home. He also did not provide any evidence of any such impact on him, although it was his onus to establish such facts on the balance of probabilities. As a result, I do not find that this is a case in which the Morris considerations set forth by Nakatsuru J. would be applied.
Concurrent versus Consecutive Sentences
[37] Where there is a reasonably close nexus between the offences in time and place, and where they appear to be part of “one continuing crime operation”, the sentences should be concurrent.
Kienapple Principles
[38] As observed by the Supreme Court of Canada in R v Prince, [1986] 2 SCR 480:
The rule against multiple convictions is applicable when there is a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences which form the basis of two or more charges. In most cases the factual nexus requirement will be satisfied by an affirmative answer to the question: does the same act of the accused ground each of the charges? It will not always be easy to define when one act ends and another begins but when such difficulties arise they can be resolved having regard to factors such as the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events, and whether the accused’s actions were related to each other by a common objective.
No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender’s accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted. The requirement of sufficient proximity between offences will therefore only be satisfied if there is no additional and distinguishing element that goes to guilt in the offences for which a conviction is sought to be precluded by the Kienapple principle.
[39] The Supreme Court of Canada further observed, in R v Wigman, [1987] 1 S.C.R. 246 that for the Kienapple rule to apply, there must be both a factual and legal nexus between the charges. Multiple convictions are only precluded under the Kienapple principle if they arise from the same “cause”, “matter”, or “delict”, and if there is sufficient proximity between the offences charged. The requirement of sufficient proximity between the offences will only be satisfied if there is no additional and distinguishing element contained in the offences for which a conviction is sought to be precluded by the Kienapple principle.
[40] In R v Stephens, [2009] O.J. No. 6102, R. A. Clark J. addressed the issue of concurrent versus consecutive sentences as follows:
[21] Dealing first with the Kienapple issue, in R v Prince, Dixon CJC stated, at paragraph 21, that the rule against multiple convictions is subject to the clear expression of Parliament to the contrary. At paragraph 36, Dixon C.J.C. went on to say:
In the absence of some indication of parliamentary intent that there should be multiple convictions or added punishment in the event of an overlap, the particular designation of an element ought not to be taken as a sufficient distinction to preclude the operation of the Kienapple principle.”
[22] This question was addressed in R v RK, [1] O.J. No. 2434 (C.A), where at paragraph 28, Doherty J.A. stated:
Dixon C.J.C., in Prince, at pages 51 to 54, further elucidated the legal nexus inquiry by referring to three factors that will defeat any claim that different offences have a sufficient legal nexus to warrant the application of the Kienapple rule. These factors do bear repeating in these reasons. First where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule. Second, where the offences allege personal violence against different victims, Kienapple will not foreclose convictions for offences relating to each victim. Third, where the offences proscribed [sic] different consequences, the Kienapple rule will not bar multiple convictions.
[23] Having considered those authorities, I conclude that where Parliament’s intent to create different punishments for different offences is clear, that intent can be a proper basis for imposing multiple convictions for offences the essential elements of which are the same. I am further satisfied, for the reasons articulated by the Crown, that Parliament’s intention is clear in connection with the two offences under consideration here.
Analysis and Conclusion
[41] In this case, the offender, Abadula Biya was found guilty of the various firearms related offences, as listed at para 1, above, as well as being found guilty of possession for the purpose of trafficking in MDEA, a Schedule I drug. He was further found in possession of proceeds of crime, namely cash in the amount of $1,725.
[42] From all accounts, he appears to have had a good upbringing by a stable and supportive family and was in the process of completing a four-year degree in Child and Youth Care. He had good prospects for the future.
[43] However, the offences for which he was convicted are serious. As indicated above, the Supreme Court of Canada has recognized that a trial judge, in sentencing, can take judicial notice of the context of the crime, the prevalence of the crime in the area in which it was committed. In this case, the Greater Toronto Area has been plagued for many years by crimes involving illegal handguns and the Ontario Court of Appeal has, since Danvers, supra, indicated that crimes involving handguns must, in order to communicate to the public at large and to offenders that such use of handguns will not be tolerated, have an exemplary sentence imposed. It has further been recognized that where trafficking in drugs is combined with the use of handguns, this may be taken into account as an aggravating factor when imposing a sentence.
[44] The defence urged that I consider the case of Morris, supra, which I have. However, as indicated above at para 37, and for the reasons given therein, I do not find that the considerations in Morris are applicable to the facts of this case.
[45] The defence, while conceding that deterrence and denunciation must be of primary consideration, further urged that I consider as well rehabilitation in this case. I do agree that Mr. Biya appears to have prospects for the future, and that rehabilitation is one factor to be considered. However, I am also of the view that in cases such as this, where there is both trafficking in Schedule I substances, and a firearm is involved, considerations of general and specific deterrence and denunciation, as well as public safety are of great importance.
[46] I do recognize that the handgun in Mr. Biya’s possession was in a gym bag, with ammunition nearby and not in the gun.
[47] Without any consideration for pretrial custody and bail conditions in this case, I am satisfied, having reviewed all of the caselaw relied on by both the Crown and defence, and taking into account the principles of sentencing, including rehabilitation in this case, that a global sentence of four years is appropriate, three years for the firearm-related offences and one year for trafficking.
[48] As regards the pretrial credit, both Crown and defence are in accord that 51 days should be credited. As regards the bail conditions, Mr. Biya was initially confined to house arrest, except where there was a medical emergency involving himself or his family, or where he was in the presence of his surety. This restrictive bail continued from October 14, 2015 to February 12, 2016, when his bail was varied to permit him to attend Seneca College. He was able to leave the house to attend Seneca while carrying a copy of his class timetable on his person. It was estimated that his full-time schedule involved 4 to 8 hours per day for 4 days per week during the semesters from February 12, 2016 to June 2018. This would not include summers. Indeed, it was as a result of this variation in bail that he was able to complete most of his four-year course at Seneca.
[49] While the bail conditions were certainly limiting, I do not find them to have been excessively restrictive. During the first five months, he could only go out if accompanied by his surety or if there were a medical emergency. Once the bail was varied, he was able to attend Seneca College full-time during the semesters while carrying his timetable on his person. He did not attend during the summer months. He did not provide any evidence regarding the impact on himself of the bail conditions. Nevertheless, given the restricted liberty, I would exercise my discretion to award credit of three months, taking into consideration both the initial more restrictive house arrest prior to variation of the bail, and after the variation of bail, the terms the house arrest during summer months when he was not in school.
[50] The Crown has requested that of the eight counts, Count 1 (possession of a loaded prohibited firearm pursuant to section 95(1)) should have imposed a sentence of 3½ years and be consecutive to Count 10 (possession for the purpose of trafficking in a controlled substance (MDEA) pursuant to section 5(2) of the CDSA), with a sentence of one year imposed. The Crown further requests that Counts 2 through 7 be concurrent to Count 11, with the following suggested sentences: Count 2 (careless storage of a firearm (section 86(1)) – one year concurrent; Count 3 (careless storage of ammunition (section 86(1)) – six months concurrent; Count 4 (possession while unauthorized (firearm) (section 91(1))–Kienappled; Count 5 (possession while unauthorized (ammunition) (section 91(2))—6 months concurrent; Count 6 (unauthorized possession of firearm knowing possession unauthorized (section 92(1)) -- 3½ years concurrent; and Count 7 (occupant of motor vehicle knowing there was a firearm (section 94(1)) – two years concurrent.
[51] Having taken into consideration the guidance afforded by the cases of R v Prince, supra and R v Wigman, supra, I find that the firearms convictions (Counts 2 through 7, with the exception of Count 4 which is subject to the Kienapple principle, are to be served concurrently with Count 1. While each Count has a factual nexus, each has distinct elements to be proven and constitutes separate offences of varying gravity. Count 7 is to be served consecutively.
[52] Accordingly, the sentences to be imposed on each Count are as follows:
• Count 1 (possession of a loaded prohibited firearm: section 95(1))– three years
• Count 2 (careless storage of a firearm: section 86(1)) – one year concurrent
• Count 3 careless storage of ammunition (section 86(1)) – six months concurrent
• Count 4 – Kienappled
• Count 5 (possession while unauthorized (ammunition): section 92(1)) – six months concurrent
• Count 6 (unauthorized possession of firearm knowing possession unauthorized: section 92(1)) – three years concurrent
• Count 7 (occupant of motor vehicle knowing there was a firearm: section 94(1)) – two years concurrent
• Count 10 (possession for the purpose of trafficking in a controlled substance (MDEA): section 5(2) CDSA) – one year consecutive
[53] Mr. Biya, please rise.
[54] I have taken into account all of the mitigating, as well as the aggravating factors in this case. I have further taken into account all of the caselaw provided by your counsel and counsel for the Crown. In all of the circumstances of this case, I find that a four-year sentence is appropriate, less the credits given, namely 51 days pretrial custody and three months regarding the bail conditions.
[55] As a result of your offences, I sentence you to four years total, less the credit allocated (three months and 51 days).
[56] I hope that you will, during the time that you are incarcerated reflect upon your life and upon the offences of which you are found guilty.
[57] I further believe, given your stable, supportive family and your love for your family that you will seek any assistance necessary in order to return to the positive person that others believe you to be, that you will continue your studies and will pursue your goal of being a contributing member of your society, dedicated to helping others.
[58] I am confident that you wish to be a good role model to your younger siblings and encourage you to be the best that you can be while you are in prison and after you are released from prison.
[59] I will look for good things from you in the future and hope that you will become a positive role model to your siblings and a positively contributing member of your community.
Ancillary orders
[60] I further impose the following orders: an order pursuant to section 109(2)(a) that Mr. Biya cannot possess any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. An order pursuant to section 109(2)(b) that Mr. Biya cannot possess any prohibited firearm, restricted firearm, prohibited firearm, prohibited device, prohibited ammunition for life; a DNA order, given that Count 10 is a secondary offence, Count 7 is a secondary offence and Count 1 is a generic secondary offence. Further, I have signed a forfeiture order as follows: pursuant to section 491(1), the Bersa 380 semi-automatic handgun is to be forfeited and pursuant to section 462.37, the proceeds of crime in the amount of $1,725 are to be forfeited. Finally, pursuant to section 16(1) of the CDSA, the MDMA/MDEA capsules, marijuana, scale and other drug paraphernalia are to be forfeited.
Carole J. Brown, J.
Released: December 14, 2018