COURT FILE NO.: 18-70000285-0000
DATE: 20190909
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: her Majesty the Queen, Crown
AND:
Indrit Zaganjori, Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Scott Graham, for the Crown
R. Roots Gadhia, for the defendant
HEARD at Toronto: June 25, 2019
REASONS FOR DECISION - SENTENCING
[1] Mr. Zaganjori is before me today for sentencing. On May 30, 2019, he was convicted by a jury of pointing a firearm contrary to s. 87(1) of the Criminal Code, R.S.C., 1985, c. C-46 and of possession of a weapon for a purpose dangerous to the public peace contrary to s. 88(1) of the Criminal Code. I heard submissions regarding sentencing on June 25, 2019.
Circumstances of the offence
[2] The convictions arise from a jury verdict which of course arrives without reasons. I must confine myself to the facts that the jury must necessarily have found in order to arrive at its decision and – to the extent not inconsistent with these – those that I am able to determine from the evidence at trial that are required for the purpose of sentencing. Aggravating circumstances of course must be subjected to the rigorous standard of proof beyond a reasonable doubt.
[3] The offences arise from an incident at a mid-town Yonge Street bar near Davisville Avenue known as Fionn MacCool.
[4] Early in the morning of June 29, 2016, two groups of patrons remained in the bar following last call. The bartender, Ms. Jabalee, was the only employee on duty and was busy preparing the bar to be closed for the night. The first group consisted of two men: Mr. Zaganjori who was seated with a friend and client he had arranged to meet there. The second group consisted of two couples: the complainants Ms. Dwyer and Mr. Heath and two close friends of theirs named Scott and Gill. The two groups did not know each other.
[5] What happened next is a matter of some controversy that is not directly resolved by the verdict of the jury. Mr. Zaganjori claims to have been on the receiving end of a stream of racist and hateful invective sent his way by Mr. Heath and his friend Scott arising from a dispute about the relative merits of American and European football. The complainant, Mr. Heath, denies making any such racist slurs and claims to have reacted to unprovoked and vile threats uttered by Mr. Zaganjori regarding Mr. Heath’s (absent) mother and sister made while Mr. Zaganjori was engaged in a dispute of some kind with Scott. While more significant subjects of debate have doubtless occurred in the course of human affairs, it is fair to observe that late night bar-room arguments do not often expand the limits of human knowledge materially when examined under the harsh light of sobriety. I do not propose to make any findings about the origins or content of the verbal altercation nor do I consider it necessary to do so. There can be no doubt that there was a verbal altercation involving a degree of heat between Mr. Zaganjori on the one side and Mr. Heath and his friend Scott on the other. I make no findings about its origins beyond that indisputable observation.
[6] In the course of this verbal exchange, Mr. Zaganjori claims to have received a violent shove from Mr. Heath followed by a solid punch to the face. Mr. Heath readily admitted to shoving Mr. Zaganjori but vehemently denied having thrown a punch. While I have latitude to accept Mr. Zaganjori’s evidence in this regard and to reject that of Mr. Heath and Ms. Dwyer, I do not choose to do so. Mr. Zaganjori’s evidence was rejected by the jury in its most essential points – his explicit denial of having committed the crimes charged – and that rejection entails a conclusion that the jury shared my own view that his credibility on essential matters was doubtful. There was inconclusive photographic evidence proffered to corroborate his claim of having received a punch. None of the other witnesses called by either side, including the bartender, Ms. Jabalee (who was certainly a friendly witness for the defence), saw the alleged punch.
[7] While the allegation of a punch in addition to a shove adds to the narrative, it does not change it in a fundamental way. Mr. Heath admits to having shoved Mr. Zaganjori and made no claim to have done so in response to anything more than verbal taunts that he found offensive. Gone are the days when something as banal as “your mother wears army boots” was considered an insult of the very highest order. Nevertheless, the sentiments alleged by Mr. Heath to have been expressed by Mr. Zaganjori were not dissimilar, and violence is never an appropriate response to such a bombastic provocation even if made as described. Whether that act of violence was supplemented by another does not change the fact that the only act of violence that occurred inside the bar that night was the one initiated by Mr. Heath. To that point, Mr. Zaganjori was not alleged to have done more than be excessively impolite. Mr. Heath certainly shoved Mr. Zaganjori and, while not happy with himself for having done so, he readily acknowledged his action and the stupidity of it.
[8] Mr. Zaganjori is a fit and fairly tall man. However, Mr. Heath and his friend Scott were both taller and heavier than he. The attitude of Mr. Zaganjori’s friend was not explored by any party in depth but he at least served to equalize the numbers to some degree were matters to escalate. At all events, retaliation would have been a risky affair given the height and weight disparity between Mr. Zaganjori and Mr. Heath. There is no suggestion that Mr. Zaganjori laid a hand on Mr. Heath or displayed any physical violence whatsoever, however heated the words being exchanged may have been.
[9] The bartender, Ms. Jabalee, immediately asked Mr. Heath and his party to leave. They had already paid their bill and it was closing time. In addition, as an experienced bartender, her sensible practice was to separate combatants as soon as possible and to eject the larger of the two groups by any means of persuasion open to her. Although slight in stature, she knew her trade and successfully persuaded them to obey. They did so without objection. The atmosphere reigning in the bar was of course not instantly calmed by this step. Mr. Heath and his group gathered their things up and left the bar as asked. While they did so, the two groups continued their verbal jousting, doubtless at a high decibel level, but no further physical contact occurred.
[10] While intended as no more than a parting shot, Mr. Heath admitted that he may well have suggested that Mr. Zaganjori meet him outside to continue their debate in the course of that jousting. I find that he did so, even if out of bravado more than as a serious challenge to a fight that he intended to follow up on.
[11] To this point, the story is a banal one repeated with minor variations at one or more bars in a city as big as Toronto every night. The violence that had flared was minor and the bartender reacted quickly and professionally to douse the sparks before any fire took hold.
[12] The two couples left the bar by the front door and proceeded southbound on Yonge Street towards the nearby apartment of Scott and Gill around the corner. They milled about for a couple of minutes in the area in front of the bar. I do not find that they did so for the purpose of waiting for Mr. Zaganjori or to threaten him. Mr. Heath finished a cigarette and doubtless all of them were discussing what had just occurred. For whatever reason, they did remain on the street a few short yards from the entrance to the bar for a minute or two at least.
[13] Mr. Zaganjori then proceeded to leave the bar via the kitchen where a side door leads to a public alleyway on the south side of the building. Mr. Zaganjori’s car was parked in the alleyway. He claims that he left in that fashion intending only to go home and with a view to avoiding any kind of confrontation with Mr. Heath and his group altogether.
[14] That description of his actions appears to me to be quite an unlikely one given the fact that his friend remained behind in the bar and given his subsequent return to the bar after the incident giving rise to the charges he faced at trial.
[15] Mr. Zaganjori’s actions upon leaving the kitchen of the bar were captured by video surveillance cameras in the alleyway. The video shows that he leaped over a barrier to the service alley below and then walked to his parked car a short distance down the same alley. Mr. Zaganjori could have simply gotten into his car and driven away at this point. He did not do so. Instead, he walked directly to the trunk of his car, opened the trunk and rummaged around inside it. He then closed the trunk and proceeded down the alleyway towards Yonge Street where he left the field of view of the cameras.
[16] The alleyway in which Mr. Zaganjori’s car was parked was on the south side of the bar and runs east-west between Yonge Street and another alleyway that marks the eastern end of the building. Upon closing the trunk, Mr. Zaganjori headed directly west towards Yonge Street a dozen or more paces behind his car and the larger pick-up truck parked behind his own vehicle.
[17] It was only at the point that Mr. Zaganjori emerged from the alleyway on to Yonge Street that he came to the notice of Mr. Heath and Ms. Dwyer. He had a firearm in his hand. He pointed the firearm at Mr. Heath and did so from a short distance of only a couple of feet. He uttered threats. While Mr. Heath could not remember the precise words, Ms. Dwyer remembered hearing words to the effect of “I’m going to f***ing kill you”.
[18] I find that Mr. Zaganjori voiced threats while pointing the firearm at Mr. Heath itself an unambiguously threatening gesture in the context. He was not singing a lullaby. The precise words employed are less important than the fact that words and gestures in combination conveyed an acute fear of imminent death or violence in the heart of Mr. Heath and Ms. Dwyer. They both believed that Mr. Heath could well be killed then and there. Mr. Heath raised his hands and backed away while apologizing. The two of them then turned and hurriedly crossed Yonge Street. Ms. Dwyer called 911 when she got to the other side.
[19] I accept Mr. Zaganjori’s evidence that while in the alleyway he could see and hear Mr. Heath’s group who were still milling about near the mouth of the alleyway (where it meets Yonge Street). I also accept Mr. Heath’s and Ms. Dwyer’s evidence that they did not notice Mr. Zaganjori until he was only a few feet away from them. Among other things, the darkness in the alleyway and the pick-up truck parked behind Mr. Zaganjori’s vehicle would have obscured him from their view to some degree.
[20] The jury did not accept Mr. Zaganjori’s evidence regarding this confrontation. He denied having anything more than a cell phone in his hands or having done more than threaten to call the police with it if the group did not move on. The jury found that he had a firearm in his hand and pointed it at Mr. Heath. There was ample evidence to support that finding.
[21] By reason of the jury’s verdicts on the two charges and the events that occurred at the head of the alleyway, I find that Mr. Zaganjori went to the trunk of his car for the specific purpose of retrieving the weapon that he knew was there and that the weapon in question was a firearm. He chose to retrieve the weapon from the trunk of his car, and did so in an unhurried manner, instead of driving away and avoiding conflict. It is not reasonable to infer that he had the weapon concealed on his person for several hours in the bar given the type of clothing he was wearing. His actions in rummaging around inside the trunk are entirely consistent with having retrieved the very firearm that was seen in his hand only seconds later. Common sense and the jury’s verdict lead to no other inference and it is one that I make beyond a reasonable doubt.
[22] Following the departure of Mr. Heath and Ms. Dwyer across Yonge Street, Mr. Zaganjori calmly returned to his car the way he had come. I find that Mr. Zaganjori then returned the firearm to the trunk of his car. The total time between when he retrieved the firearm from his car and when he returned it to his car was less than one minute. The incident, while undoubtedly terrifying for Mr. Heath and Ms. Dwyer, was a brief one.
[23] After returning the firearm to his car, Mr. Zaganjori proceeded east along the alleyway which permitted him to walk around the circumference of the building, returning to the bar by way of the front door a couple of minutes later.
[24] There is one final issue to be addressed regarding the circumstances surrounding the offences. The jury found that Mr. Zaganjori had a firearm in his hand. There was no requirement for the jury to have determined whether the firearm in question was a prohibited or restricted firearm or whether it was an unrestricted firearm such as a BB gun. The verdict does not purport to do so.
[25] The defence urged me to conclude that the firearm in question was in fact a BB gun because evidence of that fact was before a different judge on the Charter application conducted prior to trial. That application resulted in the suppression of the evidence of the police search of the trunk of Mr. Zaganjori’s car. Common sense and elementary principles of justice preclude me from allowing the remedy applied in consequence of a state breach of Mr. Zaganjori’s Charter rights to preclude me from taking notice of a fact that is at least partially mitigating in the context of sentencing. There is no dispute that the firearm found in Mr. Zaganjori’s trunk was in fact a BB gun and the conclusion that this was the firearm pointed by Mr. Zaganjori at Mr. Heath is inescapable. The conclusion of the jury that it was in fact a firearm that Mr. Zaganjori pointed at Mr. Heath requires me to conclude that the BB gun held by him was able to fire a projectile capable of inflicting serious bodily injury or death upon Mr. Heath and I do so.
[26] My finding that the firearm pointed by Mr. Zaganjori was a BB gun does not in any way cast doubt upon the verdict of the jury, but it is a contextual element that I can and shall take into account in considering a fit and proper sentence.
Circumstances of the offender
[27] Mr. Zaganjori is 33 years of age with a wife and two young children aged 8 and 2. He was 29 at the time of the incident, his youngest child not yet born. Prior to the incident, Mr. Zaganjori’s record was entirely unblemished. There is no history of violence to reproach him with nor any suggestion of association with illicit firearms.
[28] His life’s story is that of many hard-working and successful immigrants to this country.
[29] Mr. Zaganjori arrived in Canada at age 21 from a small town in Albania with his wife and set about building a future for the children that the couple would soon have. He became a Canadian citizen. He furthered his education and launched a small internet business. He is now self-employed operating a small home improvement business out of his home. Some of the work he performs himself, some with the assistance of employees or sub-contractors. His wife has pursued a career as a law clerk. Numerous support letters from clients and colleagues of both attest to how thoroughly out of character this incident was in the life of this man and to the toll these pending charges have exacted upon the life of this young family these past three years.
[30] The financial impact of these charges upon Mr. Zaganjori has been considerable. His release conditions severely limited his ability to support his family for the first year and continued to do so to a lesser degree for the two succeeding years. His financial resources have been fully drained by the expenses of providing for his legal representation to the detriment of his family. The family apartment in Albania – a wedding present – has been sold to defray those costs. His release conditions precluded him from travelling home to visit his father during his last days or attend the funeral. This too represents a significant if intangible price paid in consequence of the charges Mr. Zaganjori has been facing these past three years.
[31] Mr. Zaganjori has expressed regret and remorse for this incident. He said that he and his family have paid a heavy price for it thus far and he fully realizes that his debt to society has not yet been discharged. He recognizes this incident for the stupid mistake that it was.
[32] It might be observed that Mr. Zaganjori’s statements of remorse are tactical and more than a little late. He steadfastly maintained his innocence and blamed the victims of his crime when testifying before the jury. I must also consider that his prior denials of guilt were not believed by the jury and they were not believed by me. Credibility once lost is not easily recovered and Mr. Zaganjori’s testimony at trial justifiably places a shroud of doubt over his credibility when he comes before me to plead his sincere regret and remorse regarding the incident now that he is facing sentencing. All allowances being made for the lateness of the remorse expressed, I do accept that Mr. Zaganjori recognizes the idiocy of his actions and that his regrets extend further than simple regret at having been caught and convicted. I am satisfied that this offence was quite out of character for him and I am highly confident his behaviour that night is not in any way indicative of the path he can be expected to follow in future.
Kienapple
[33] At the outset of the sentencing hearing, I raised with the parties whether I ought to consider staying one of the two charges on the basis of the rule against multiple convictions for substantially the same delict as described in R. v. Kienapple., [1975] 1 SCR 729, 1974 CanLII 14 (SCC). Neither party had raised the matter in their sentencing submissions to me. I did so because the firearm Mr. Zaganjori was convicted of pointing at Mr. Heath was the same firearm that he was convicted of possessing for a purpose dangerous to the public peace – there was no other firearm in evidence. The use to which Mr. Zaganjori put that firearm – pointing it at Mr. Heath – was also part of the evidence of his possession thereof for a purpose dangerous to the public peace. I asked the parties to consider whether these factors bring the Kienapple principle into operation. Both conducted research on the point after completion of their main submissions and made their arguments before me.
[34] The Crown submitted that Kienapple ought not to apply. The essential elements of the two offences have some overlap to be sure but are materially different. The offence of pointing a firearm under s. 87(1) of the Criminal Code requires proof that the accused possessed the firearm and intentionally pointed it at another person. The offence of possession of a weapon for a purpose dangerous to the public peace references antecedent possession of the weapon (i.e. prior to its use for a purpose dangerous to the public peace). The offence is complete upon proof of possession of the weapon (in this case a firearm) and proof that such possession was for a purpose dangerous to the public peace. It is not necessary to demonstrate that a dangerous purpose was in fact ever carried out. The fact that a dangerous purpose was in fact carried out may be looked to as evidence of a pre-existing dangerous purpose, but the pre-existing dangerous purpose need not be restricted to the particular dangerous purpose to which it was in fact put. In this case, Mr. Zaganjori might potentially have been arrested before he emerged from the alleyway and before Mr. Heath ever saw a firearm in his hand. The offence was already complete.
[35] The defence urged a more pragmatic and functional approach to the question. In R. v. Arnill, 1999 CanLII 3188 (ON CA) the Court of Appeal looked to the “spirit” of the rule against multiple convictions. In Arnill, the accused was convicted of assault with a weapon and possession of the same weapon for a purpose dangerous to the public peace. At paragraph 3 of this brief endorsement, the Court noted:
On the second submission, whether the assault with a weapon conviction should be stayed under the Kienapple principle turns on whether the possession of the knife for a dangerous purpose preceded its use. Technically, the s. 87 offence was complete before the knife was used, but as in R. v. Briscoe (1992) 1992 CanLII 938 (BC CA), 76 C.C.C. (3d) 563 (B.C.C.A.), we think this technical view is at odds with the spirit of the rule against multiple convictions. We therefore think that the assault with a weapon charge should be stayed.
[36] I find myself unable to distinguish the present case from that before the Court of Appeal in Arnill. I am therefore compelled to reach the same conclusion and stay the lesser of the two charges (pointing a firearm) as did the Court of Appeal. The conviction entered for pointing a firearm contrary to s. 87(1) of the Criminal Code will be stayed. The circumstances of the offence and thus the circumstances that are to be considered for the purpose of sentencing remain unchanged. However, it is neither fair nor just to sentence Mr. Zaganjori two times for what is – on the facts of this case at least – substantially the same culpable conduct.
Victim Impact Statement
[37] Mr. Heath had a firearm pointed at him from very, very close range. While I have stayed the charge specific to Mr. Heath, the circumstances of the offence – including the pointing of the firearm that in fact occurred – remain relevant for sentencing. Mr. Heath prepared a victim impact statement that was entered as an exhibit at the sentencing hearing. It was short and to the point. He noted the severe emotional shock that this incident caused him as he legitimately thought he was going to be shot and potentially die. He also expressed concern that Mr. Zaganjori had made the conscious decision to follow him after he and his friends had already left the bar and to point a gun at him. While the events were shocking, he advised that he has been able to make a recovery and his life has since improved.
Position of the Parties
(a) Position of the Crown
[38] The Crown took the position that denunciation and deterrence are the paramount sentencing factors in firearms cases. The use of the firearm in this case – pointing with intent to intimidate and/or terrorize – is a significant aggravating circumstance as is the fact that the offence occurred in a public place (Yonge Street). Having regard to the parity principle in particular, the Crown urged me to deliver a penitentiary sentence of three years against which it agreed that three months of Downes credit for the restrictive conditions of house arrest and 5 days (credited at 1.5 times) for pre-sentence detention should be allowed. It also asks for ancillary orders prohibiting Mr. Zaganjori from possessing a firearm for ten years and for a DNA order.
(b) Position of the Defence
[39] The defence urged me to consider Mr. Zaganjori’s lack of a record, his strong prospects for rehabilitation, his contributions to society as a family man with children and a business owner employing others, the fact that he poses no risk to society and the serious Charter violations that accompanied his detention and arrest as factors pointing towards a lenient sentence. The defence submission – prepared prior to consideration of the Kienapple issue – suggested a conditional sentence incorporating house arrest/curfew conditions and probation a conditional sentence with curfew conditions in respect of the point firearm offence and a sentence equal to the Downes credit arising from the year he spent under full house arrest or a 90 day intermittent sentence in respect of the weapons dangerous offence.
Aggravating Factors
[40] Having stayed the pointing firearm charge pursuant to the Kienapple principle, I nevertheless find that the circumstances of that offence are an aggravating circumstance to be accounted for in sentencing Mr. Zaganjori for the weapons dangerous charge. The weapon that he possessed was a firearm and that firearm was intentionally used to terrify Mr. Heath and leave him in fear for his life. The fact that this unambiguously threatening and terrifying gesture – pointing a firearm at point-blank range – was accompanied by verbal threats is a further aggravating factor.
Mitigating Factors
[41] Mr. Zaganjori has no prior history of violence or crime. He is supporting a young and growing family and operating a business upon whom clients and other employees depend. I have no hesitation in concluding that this incident was an aberration and that he presents little to no on-going risk to the community. I am satisfied that he recognizes the stupidity and blameworthiness of his actions even if his expressions of remorse are rather late-breaking (in effect mitigating the mitigating factor). All of these are positive and mitigating factors that enter into the balance.
Application of Sentencing Principles
[42] I shall not pass in review here all of the principles Parliament has directed trial judges to have regard to in fashioning a sentence. The process is one that requires a delicate balancing. All available sanctions other than imprisonment that are reasonable in all of the circumstances must be considered. Regard must be had to the circumstances of the offence and the circumstances of the offender. Regard must also be had to the parity principle to ensure that similar circumstances produce similar sanctions as far as reasonably possible.
[43] The offence in this case involved the possession of a firearm with intent to misuse it. The misuse of firearms has long been a problem in the community. The problem has greatly worsened in this community in recent years. What were once relatively rare occurrences are now virtually daily occurrences in this city. A long-term problem is evolving before our eyes into a veritable plague. Our Court of Appeal has consistently and loudly called for paramount weight being given to the factors of denunciation and deterrence in fashioning a fit and proper sentence for offences involving firearms. The trend in sentencing in this category of cases in recent years has tended towards harsher and more severe punishment. The sad reality is that only a fraction of firearms offences will result in the apprehension and trial of the offender. It is thus all the more important that every would-be offender should know that the punishment will be harsh if deterrence is to have an impact. In R. v. Brown, 2010 ONCA 745, the Court of Appeal increased a sentence on appeal noting (at para. 14):
Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.
[44] The fact that the firearm in this case was a BB gun does not detract from the applicability of this remark – the impact upon Mr. Heath and Ms. Dwyer who were both terrorized by its use was the same.
[45] In my view, the circumstances of this offence and the harm done to its victims are such that it would not be reasonable for me to consider sanctions short of imprisonment as urged upon me by the defence. While specific deterrence is not a significant factor here, general deterrence and denunciation remain factors of paramount importance. It is critically important that the community knows that those who resort to weapons in general and firearms, in particular, in the commission of an offence are crossing a very, very significant threshold in terms of the gravity of the offence. The punishment they can expect to see meted out in consequence must reflect that.
[46] The parity principle also generally tends in the same direction. Fully recognizing that the circumstances of many of the cases cited to me are and will be somewhat distinguishable, the fact remains that custodial terms are the norm and not the exception in this area. In R. v. Hashimi, 2019 ONSC 812, Boucher J. noted that the sentences for pointing a firearm, for example, attract sentences in the 9-12 month range and that the use of firearms in connection with other criminal offences tends to result in sentences being from one to four years higher: Hashimi at para. 40. While Hashimi involved the violation of weapons prohibition orders and possession of narcotics for purposes of trafficking, the principles enunciated therein remain valid and applicable here.
[47] While principles of denunciation, deterrence and the parity principle, when considered in the context of this offence and its impact upon the community and the victims, all direct me to impose a custodial term, I find that the mitigating circumstances of this case and this offender direct me towards leniency and the lower end of the range.
[48] Sentencing is not an automatic, algorithm-driven exercise. It must reflect the actual circumstances of the offender and of the offence. I am well satisfied that Mr. Zaganjori is an excellent candidate for rehabilitation – he has learned his lesson and is at very low risk of re-offending. Were he to disappoint that expectation, he will know most assuredly that leniency is not a cup that can be drunk from twice. He must also take responsibility for his actions and that will involve more than a mere slap on the wrist. To the extent leniency can be shown in a manner that does not undermine the paramount principles that I must recognize, I shall do so.
[49] In all the circumstances of this case, I consider that a term of imprisonment of nine months (prior to pre-sentence credits) strikes an appropriate balance.
[50] I must now consider what credit Mr. Zaganjori is entitled to receive for his five days of pre-sentence detention and the harshness of his release conditions having regard to the Court of Appeal’s directions in R. v. Downes, 2006 CanLII 3957 (ON CA).
[51] I am quite conscious that “bail is not jail”. However, it must also be noted that the release conditions imposed in this case were severely restrictive to the point of almost completely precluding the accused from supporting himself and his family for a full year. That is longer than the term of imprisonment that I have imposed here. The revised conditions continued to be an impediment to his life and ability to support his family even after being relaxed to some degree these past two years.
[52] While Mr. Zaganjori might potentially have succeeded in applying for relief from some of these conditions earlier in the pre-trial process, I note that he was self-represented for much of it being in the unhappy position of being too prosperous for legal aid and too strained financially to pay for full legal representation throughout the process.
[53] The Crown has quite fairly acknowledged that the “house arrest” conditions imposed upon Mr. Zaganjori warrant Downes credit and suggests a credit of three months.
[54] While three months is certainly well within the range of credit allowed in other cases, I am of the view that a Downes credit of four months is appropriate in all of the circumstances of this case.
[55] It is agreed that Mr. Zaganjori was held in custody for 5 days and is entitled to credit for pre-sentence custody at the rate of 1.5 times. He will accordingly be given credit for eight days of presentence custody in total.
[56] Accordingly, Mr. Zaganjori will be sentenced to a term of imprisonment of five months (after giving effect to the Downes credit as above) less 8 days credit for pre-sentence detention (i.e. five days at 1.5 times).
[57] I shall now turn to consider the ancillary orders requested by the Crown.
[58] The Crown sought a ten-year prohibition order pursuant to s. 110(1) of the Criminal Code. I am of the view that the circumstances of this case warrant such an order which shall take effect upon Mr. Zaganjori’s release from detention pursuant to s. 110(2) of the Criminal Code.
[59] Finally, the Crown sought an order pursuant to s. 487.051(3)(b) of the Criminal Code authorizing the taking of samples of Mr. Zaganjori’s bodily fluids for the purpose of DNA analysis. Such an order may be made if I am satisfied that it is in the interests of justice to do so. There is nothing in the circumstances of this offence or in the circumstances of the offender before me that appears to warrant such an order. There are instances where such orders are mandatory – this is not one of them. I do not propose to make such an order here.
Disposition
[60] In summary, I am ruling as follows:
(a) Count 1 of the indictment (pointing firearm) is hereby stayed pursuant to Kienapple;
(b) Mr. Zaganjori shall be sentenced to a term of imprisonment in respect of Count 3 (possession weapon dangerous) of FIVE MONTHS (nine months less Downes credit of four months) and in respect of such sentence shall be entitled to a credit in respect of pre-sentence custody of five days credited at the rate of 1.5 times for a total credit of EIGHT DAYS; and
(c) There shall be an order pursuant to s. 110(1) of the Criminal Code for a duration of TEN YEARS with effect from the date that Mr. Zaganjori is released from custody.
[61] At the request of Mr. Zaganjori, I agreed to defer delivering this sentence for a period of time to enable Mr. Zaganjori to arrange his affairs as best he is able prior to stepping into custody on the understanding that he should appear today prepared to do so. The sentence shall therefore take effect immediately.
S.F. Dunphy J.
Date: September 9, 2009