Court File and Parties
Court File No.: CR-18-30000560-0000 Date: 2019-10-30 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Yasin Patel, Accused
Counsel: Beverley Olesko, for Her Majesty the Queen Doug Gosbee, for the Accused
Heard: October 25, 2019
Reasons for Sentence
Dunnet J. (Orally)
Overview
[1] On October 17, 2019, following a trial before this court, the accused was found guilty of firearm, ammunition and drug charges and with breaching court orders.
[2] The facts giving rise to the charges arose out of a police investigation of a motor vehicle being driven by the accused on January 6, 2018. On November 2, 2017, a warrant had been issued for his arrest on a charge of attempted murder and the accused had been evading the police since that date.
[3] The police commenced surveillance on the vehicle, resulting in a high-risk takedown, during which the accused was injured. Police Officer Matthew Clarke used the muzzle end of his shotgun to break the driver’s side window of the vehicle and the momentum broke the glass and came into contact with the accused. He was taken to the hospital where three staples were applied to two cuts above his left ear.
[4] During a search at the police station, drugs were found in the accused’s underwear and ammunition was found inside his pants.
[5] On January 8, 2018, a Criminal Code search warrant was executed. Inside the trunk of the vehicle, the police found documents in the name of the accused and a gun with six rounds of ammunition.
[6] The accused brought an application for a stay of proceedings, alleging that his ss. 7 and 12 Charter rights were violated when he was arrested. I ruled that the actions of Officer Clarke did not involve an egregious and unjustified use of force. Based on the information that the officer had at the time and in the face of the accused’s non-compliance with police orders, I was satisfied that the officer’s actions were necessary, reasonable and proportionate. I found no breach of the accused’s Charter rights and even if the force used was excessive, I concluded that this was not the clearest of cases to warrant the drastic remedy of a stay.
[7] The drugs that were seized during the search of the accused at the police station were tested by Health Canada and found to be 0.56 grams of cocaine, 0.27 grams of a mixture of heroin, cocaine and fentanyl, and 2.93 grams of fentanyl.
[8] The 9 mm Lugar projectile seized at the police station could be fired from the .357 Magnum caliber, center-fire revolver handgun that was seized from the trunk of the vehicle. The six .357 Magnum cartridges found inside the firearm were able to be fired from the firearm.
[9] I was satisfied beyond a reasonable doubt on the evidence that I accepted that the accused had knowledge and control of the firearm. He was not the holder of a firearms registration certificate or a firearms licence and he was prohibited by court orders from possessing a firearm and ammunition.
[10] The accused is twenty-five years old. He has a high school education and has worked in discount retail stores. He has a criminal record for theft, assault with a weapon, trafficking and breach of recognizance in 2015 and assault and break and enter in 2017.
[11] The aggravating factors in this case are that the accused was in possession of a fully loaded firearm while he was driving on the streets in Toronto, creating a dangerous situation for the public. He was in possession of a loaded firearm, knowing that he was subject to court orders prohibiting him from possessing weapons and ammunition and knowing that he was wanted by the police for attempted murder in a shooting. He was in possession of various drugs, despite having been convicted of trafficking.
[12] The mitigating factors are that he is young and has the support of his parents. In a letter to the court, his mother described the accused as loving, caring and hard-working.
[13] The Crown seeks a global sentence of five years. The defence seeks a global sentence of three and one-half years.
[14] The parties differ as to the appropriate sentence for possession of a restricted firearm with ammunition under s. 95(1) of the Criminal Code and possession of a firearm while prohibited under s. 117.01(1). The Crown submits that s. 95(1) warrants a three and one-half-year sentence. The defence, relying on R. v. Nur, 2013 ONCA 677, aff’d 2015 SCC 15, argues that the sentence should be two-and-one-half years. The Crown contends that s. 117.01(1) warrants an eighteen-month sentence. The defence submits that a sentence of twelve months is appropriate.
[15] In R. v. Marshall, 2015 ONCA 692 at para. 47, the Court of Appeal held:
In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, this court held that the s. 95 statutory mandatory minimum aside, offenders who engage in s. 95 offences at the “true crime end of the s. 95 spectrum of offences” should continue to receive exemplary sentences that emphasize deterrence and denunciation. Nur provides, at para. 206, that: “[i]ndividuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others” will still attract such sentences …
[16] I adopt the words of Goldstein J. in R. v. Mansingh, 2016 ONSC 94, at paras. 40, 42:
40 Illegal handguns serve only one purpose: to kill other human beings. … Illegal handguns are an insidious form of firearm that has been the cause of much death, grief, anguish, and loss in our community.
42 Our community abhors gun violence. Our courts have denounced the possession of firearms over and over again, in the strongest terms. … [A]nything less than a significant penitentiary sentence for possession of a loaded restricted or prohibited handgun even for a first offender is inappropriate unless there are exceptional circumstances.
[17] The accused was in possession of a loaded firearm while attempting to escape the police and knowing that there was an outstanding warrant for his arrest in a shooting. This is a significant aggravating factor. He was in possession of a loaded firearm, knowing that there were court orders prohibiting him from possessing any weapons or ammunition. Although he is young and has family support, I find that there are no exceptional circumstances in this case.
[18] Taking into account the principles of denunciation, general deterrence and protection of the public, I am of the view that the appropriate sentence for possession of a restricted firearm with ammunition is three years. The appropriate sentence for possessing the firearm while prohibited is twelve months, resulting in a global sentence of four years.
[19] The accused is sentenced to three years in the penitentiary on count 4, possession of a restricted firearm with ammunition. Count 3, unauthorized possession in a motor vehicle, is to be served concurrently to count 4.
[20] The accused is sentenced to a twelve-month consecutive sentence on count 8, possession of a firearm while prohibited. Counts 9, 10, 11, 15 and 16 for breaches of court orders are to be served concurrently to count 8.
[21] In accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351 I direct a conditional stay on counts 1 and 2, unauthorized possession of a firearm and possession of a firearm, knowing its possession is unauthorized.
[22] I enter a stay of proceedings on count 5, possession of a weapon obtained by the commission of an offence (R. v. Jean, 2016 ONCA 137 at para. 15).
[23] I order a six-month concurrent sentence on counts 6 and 7, storing a firearm and ammunition in a careless manner.
[24] I order a 90-day concurrent sentence on counts 12, 13 and 14, possession of a Schedule 1 substance.
[25] Counsel for the accused does not oppose the Criminal Code ancillary orders proposed by the Crown. Accordingly, there will be a weapons prohibition order for life, pursuant to s. 109; an order pursuant to s. 487.051 requiring the accused to provide a sample of his bodily fluid for DNA forensic analysis, and an order pursuant to s. 490.1(1) and s. 491 that the accused forfeit the drugs and ammunition seized from him on January 7, 2018 and the firearm and ammunition seized from the vehicle on January 8, 2018.
Dunnet J.
Released: October 30, 2019
Court File No.: CR-18-30000560-0000 Date: 2019-10-30 Ontario Superior Court of Justice
Her Majesty the Queen – and – Yasin Patel, Accused
Reasons for Sentence Dunnet J.
Released: October 30, 2019