COURT FILE NO.: 18-R1846

DATE: 2020/03/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NIMA SABERI, AKADA BRUCE and DOMINIK MONTGIRAUD

Defendants

Julien Lalande, for the Crown

James Foord, Counsel for Nima Saberi

Michael Spratt, Counsel for Akada Bruce

Jason Gilbert, Counsel for Dominik Montgiraud

HEARD: October 22, 2019, December 13, 2019, February 12 and February 26, 2020.

APPLICATION PURSUANT TO SS. 11(B) AND 24(1) OF THE CHARTER

AND REASONS FOR sentence

Justice marc r. labrosse

INTRODUCTION

[1] The three accused, Nima Saberi, Dominik Montgiraud and Akada Bruce were all charged in respect principally of firearms possession and transfer offences.

[2] On June 7, 2019, Nima Saberi pleaded guilty to one count of unlawfully transferring a firearm in contravention of s. 99(2) of the Criminal Code of Canada. The remaining charges against him were withdrawn by the Crown.

[3] The Crown filed a new indictment for Mr. Bruce and Mr. Montgiraud. Following a jury trial, Mr. Bruce and Mr. Montgiraud were found guilty of a number of related firearms possession and transfer offences, with Mr. Bruce also being guilty of possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime.

[4] Initially, there was to be a joint sentencing hearing for all three offenders who each wished to challenge the three-year mandatory minimum sentence under section 99(2) of the Criminal Code. Later, the offenders took the position that a challenge to the mandatory minimum sentence was not required as a result of findings by other Ontario Superior Court judges that the mandatory minimum sentence in question breached s. 12 of the Charter. The Crown did not agree given that there were conflicting Ontario Superior Court authorities.

[5] It was later determined that the sentencing process should be bifurcated, and the parties would seek a preliminary ruling on if this Court would follow other Ontario Superior Court decisions where the three-year minimum sentence was struck or if a hearing would be held to determine the constitutionality of the three-year minimum sentence. It was also agreed that after the initial ruling, Mr. Saberi’s sentencing hearing would be severed from the other two offenders in order to simplify the scheduling process.

[6] The Court ordered a pre-sentence report for all three offenders. At the Saberi sentencing hearing, Mr. Saberi testified and was cross-examined.

[7] The sentencing hearing for Mr. Bruce and Mr. Montgiraud began with applications by both offenders for a stay of proceedings due to unconstitutional post-verdict delay. Counsel for Mr. Bruce and Mr. Montgiraud made submissions in support of the s. 11(b) applications for post-verdict delay and the Crown responded. Prior to this Court’s ruling, Mr. Saberi brought his own application under s. 11(b) of the Charter for post-verdict delay, also seeking a stay of proceedings.

[8] As for the sentencing hearings, Crown and Defence for each offender made submissions on sentencing with supporting authorities to assist the Court in determining a fit sentence for the offenders.

Applications for unconstitutional post-verdict delay

Factual Background on Post-Verdict Delay – Nima Saberi

[9] Nima Saberi pleaded guilty on June 7, 2019. Following the entering of the guilty plea, Mr. Saberi advised of his intention to bring a Charter application to challenge the constitutionality of the three-year mandatory minimum sentence set out under s. 99(2) of the Criminal Code.

[10] Akada Bruce and Dominik Montgiraud were found guilty on July 4, 2019. Following the jury’s verdict, both Mr. Bruce and Mr. Montgiraud specified on the record that they intended to join the constitutional challenge of Mr. Saberi to challenge the mandatory minimum sentence of three years under s. 99(2) of the Criminal Code. At that time, the Court was looking to schedule the constitutional challenge and sentencing for four days. The Court agreed to put the matter over to August 29, 2019 to be spoken to.

[11] On August 29, 2019, Mr. Bruce’s counsel advised that he was no longer challenging the minimum sentence as it had already been declared of no force and effect pursuant to s. 52 of the Constitution Act, 1982 by a number of Ontario Superior Court judges. Mr. Saberi and Mr. Montgiraud joined Mr. Bruce in stating that they would no longer be presenting their Charter applications. Defence counsel took the position that it was the Crown’s responsibility to bring an application if it intended to rely on the same mandatory minimum sentence that had been struck down by other Superior Court judges.

[12] Although Mr. Bruce did not agree that it was required, the Court was of the view that sentencing should proceed in stages to first determine if the Court would follow the law as set out in R. v. Scarlett, 2013 ONSC 562 and determine if the mandatory minimum under s. 99(2) of the Criminal Code was effectively “off the books” or if the parties needed to argue its constitutional validity. A brief hearing was held on September 27, 2019 at which time all parties made submissions on the law in Scarlett and if the convention of horizontal precedent still applied. In R. v. Bruce, 2019 ONSC 5865, a ruling released on October 9, 2019, I ruled that in the case of mandatory minimum sentences, once a declaration of invalidity has been made, the impugned section is effectively off the statute books and that the decision should be followed by all judges of coordinate jurisdiction within that province until such time as the decision is overturned by an appellate court.

[13] As a result of my ruling, the sentencing hearing for Mr. Saberi proceeded on October 22, 2019. During that sentencing hearing, Mr. Saberi testified, and during cross-examination, the Crown sought an adjournment to verify some of the evidence that the Crown had heard for the first time. The sentencing hearing was adjourned on consent until December 13, 2019, when the Crown indicated that it was no longer seeking to cross-examine Mr. Saberi and would not call any evidence in response. The parties then proceeded to argument.

[14] Mr. Saberi’s sentencing decision was eventually scheduled for February 26, 2020 as a result of scheduling difficulties related to my unavailability. I was involved in a lengthy civil trial and I needed to deal with the Charter applications and sentencing hearings of both Mr. Bruce and Mr. Montgiraud that were set for February 12, 2020. The sentencing decision date was later adjourned to March 5, 2020 in order for Mr. Saberi’s s. 11(b) application to be heard on February 28, 2020.

[15] The applicable Jordan date for Mr. Saberi is June 14, 2020. It is common ground that the total post-verdict delay for Mr. Saberi is 8 months and 19 days (June 7, 2019 to February 26, 2020).

Factual Background on Post-Verdict Delay – Akada Bruce and Dominik Montgiraud

[16] The jury rendered its verdicts of guilt on all counts for both Mr. Bruce and Mr. Montgiraud on July 4, 2019.

[17] Mr. Bruce was found guilty of:

a. Three counts of transfer of a firearm without authorization;

b. Two counts of possession of a firearm in a motor vehicle;

c. Three counts of possession of the proceeds of crime;

d. Two counts of possession of a prohibited firearm with accessible ammunition;

e. One count of possession of a methamphetamine for the purpose of trafficking;

f. One count of possession of property obtained by crime (guilty plea).

[18] Mr. Montgiraud was found guilty of:

a. Three counts of transfer of firearms without authorization;

b. Three counts of possession of a firearm in a motor vehicle;

c. One count of possession of the proceeds of crime.

[19] Following the receipt of the jury’s verdict, both Mr. Bruce and Mr. Montgiraud confirmed their intent to bring an application to challenge the mandatory minimum sentence under s. 99(2). The matters were put over to August 29, 2019 to allow for the scheduling of these matters.

[20] As the August 29, 2019 approached, the parties had not been able to find suitable dates that accommodated all parties and this Court. I required that the parties attend before me to resolve the scheduling issues.

[21] As previously stated, at the August 29, 2019 appearance, the three offenders advised that they would no longer be bringing applications to challenge the mandatory minimum sentence. The matters proceeded to an initial hearing on September 27, 2019 and my October 9, 2019 ruling determined that the mandatory minimum sentence would not be in effect for the purposes of the sentencing hearings.

[22] The sentencing hearing for Messrs. Bruce and Montgiraud was set for December 16 and 17, 2019. Leading up to those dates, the Crown sought an adjournment as the trial Crowns were otherwise unavailable as they were each involved in pre-trial motions for separate homicides. Both Mr. Bruce and Mr. Montgiraud consented to the adjournment request. The sentencing hearing was then scheduled for January 10, 2020 but I was unavailable due to other court commitments. The sentencing hearing proceeded on February 12, 2020 and the matter was adjourned to February 26, 2020 for a decision. In the meantime, Mr. Saberi brought his 11(b) application which proceeded on February 28, 2020 and all matters were adjourned to March 5, 2020 for a decision.

[23] The applicable Jordan date for both Mr. Bruce and Mr. Montgiraud is June 14, 2020. The total post-verdict delay is agreed as being seven months and nine days (July 4, 2019 to February 12, 2020).

Applicable Law on Post-Verdict Delay

[24] It has been well known since R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 that the word “tried” in s. 11(b) of the Charter includes the sentencing phase of criminal proceedings. However, prior to the Ontario Court of Appeal’s decision in R. v. Charley, 2019 ONCA 726, delay in sentencing was generally approached in one of two ways:

a. As part of the Jordan 30-month presumptive ceiling; or,

b. To be assessed discretely without a fixed cap following the Morin framework: see R. v. S.C.W., 2018 BCCA 346.

[25] On September 19, 2019, Charley was released, and the Court of Appeal fixed the post-verdict delay presumptive ceiling at five months. The Court of Appeal also set out that the correct approach was to analyze post-verdict delay in accordance with the principles in R. v. Jordan, 2016 SCC 27, subject to its own separate presumptive ceiling. That common analytical approach includes a consideration of waiver or delay solely attributable to the defence and exceptional circumstances. Exceptional circumstances will generally fall into two categories: (i) discrete events; and (ii) particularly complex cases.

[26] However, the Court of Appeal was clear in stating that, as in Jordan, the presumptive ceiling should not be the norm. It is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b).

[27] Of particular relevance to the analysis under Charley is the guidance offered at para. 90:

[90] In cases in which the sentencing proceeding will be complex, the parties should be required very soon after the verdict to make the trial judge aware of the issues that will be raised on sentencing. In doing so, counsel must be prepared to discuss those issues and their potential complexities in some detail and with some precision. Vague references to evidence that might or might not be called in respect of undefined issues are not good enough and should not be accepted by the trial judge. All parties are responsible for developing a plan that will allow the sentencing to proceed expeditiously.

[28] In addition, the post-Jordan climate requires both the Crown and Defence counsel to move forward immediately after verdict with the various issues they propose to raise on sentencing. In addition, onus was placed on trial judges to intervene in post-verdict applications when necessary to keep sentencing proceedings on track.

[29] It should also be considered that the Jordan analysis allows for transitional exceptional cases and the contextual assessment of all the circumstances: see R. v. Manasseri, 2016 ONCA 703. Further, for cases already in the system, the release of Jordan (or in this case, Charley), should not automatically transform what would previously have been considered a reasonable delay into an unreasonable delay: see Jordan at para. 102.

[30] There is also recognition in our Courts for various forms of discrete events such as delay attributable to matters involving co-accused that do not rise to the level of requiring severance (see R. v. Singh, 2016 BCCA 427 at para. 83), delay obtaining a date to appear before the judge seized of the sentencing hearing (see R. v. Taylor, 2018 NSPC 40 at paras. 28-34) and issues surrounding out-of-town prosecution (see R. v. Millard, 2017 ONSC 4030 at para. 71).

Analysis of Post-Verdict Delay

[31] In Charley, the Court of Appeal emphasized that the sentencing process ought to be more collaborative than it has been in the past. Counsel should provide opposing counsel with material to be relied upon well before the sentencing date. Counsel who do not fully engage in this cooperative process will find it difficult to justify their positions. Specifically, the right to silence does not permit the defence to withhold disclosure of what it proposes to do during sentencing hearings. Also, issues that may cause delay must be brought to the Court’s attention in order to address these issues in advance of the sentencing hearing. Furthermore, where the offence is post-Jordan (as in this case), the parties have known since 2016 that there was a new framework for delay.

[32] In the present case, the analysis begins with the position of the offenders immediately following the plea/verdicts. Each offender promptly identified their intention to bring applications pursuant to s. 12 of the Charter as they are required to do. However, they fell short of the direction in Charley by waiting until August 29, 2019 to advise of their change of position and that the applications would be abandoned. Until that date, the Crown was waiting to respond to the s. 12 applications. For Mr. Saberi, this represented a period of two months and twenty-three days. For Messrs. Bruce and Montgiraud, this represented a period of one month and twenty-five days. Furthermore, one could argue that Charley places a burden on defence to be well-aware of their position on the mandatory minimum sentence in advance of the plea or verdict and that it be communicated to the Crown in advance to avoid losing time to possible pending applications. As such, I attribute these periods of delay for the abandoned Charter applications as defence delay.

[33] Charley was then released on September 19, 2019. At this time, the parties were preparing to argue the applicability of Scarlett. At that point it had been three months and 12 days since the guilty plea and two months and 15 days since the findings of guilt. The sentencing process had already been set in motion.The sentencing date for Mr. Saberi was set for October 22, 2019 and the sentencing hearing for Messrs. Bruce and Montgiraud was scheduled for December 16-17, 2019.

[34] When considering the merits of the Crown’s position that the mandatory minimum sentence remained available, I disagree with the Defence that the law in this area was settled or that it was a frivolous position to take. There were clearly a number of Superior Court authorities, directly on point and conflicting. It was an efficient way of resolving the Charter issue and allowing the sentencing hearings to proceed in a much more focussed manner.

[35] Turning to the issue of waiver, the Crown contends that when it sought an adjournment in December 2019 for the Bruce/Montgiraud sentencing hearing, that the consent of defence to that adjournment request was an implied waiver. The Crown relies on R. v. Nero, 2017 ONSC 4161 at para. 33. The Crown’s request for an adjournment was made at a time when it was well-aware of the 5-month presumptive ceiling and I am of the view that it was an error for the Crown to have prioritized other proceedings in the face of a pending presumptive ceiling. Arrangements should have been made to avoid the need for the adjournment and I do not have evidence to support a finding that there were no other options. To simply state that trial Crowns were involved in pre-trial motions on separate homicides falls short of qualifying this event as an unexpected or unavoidable delay.

[36] Furthermore, to the extent that Nero stands for the proposition that consent to an adjournment is an implied waiver, I disagree. Firstly, I do not believe that Nero advances that proposition as a general principle. The issue was very specific to that transitional case and is distinguishable on the facts. Secondly, I am of the view that the law continues to be as set out in paras. 190-191 in Jordan that mere acquiescence to an adjournment that will likely be granted is not waiver. The Crown must demonstrate something in the defence conduct that amounts to more. Waiver must be clear and unequivocal. Thirdly, it would be significantly challenging to the administration of justice if opposing parties had to oppose all adjournment requests in order to maintain their right to argue that they did everything possible to move a matter forward. I conclude that defence’s consent to the Crown’s adjournment request does not amount to an implied waiver.

[37] Turning to exceptional circumstances, the relevant issues in these proceedings turn on discrete events. Although the Court of Appeal in Charley clearly stated that the 5-month presumptive ceiling should not be the norm, there are certain aspects to the sentencing regime that clearly contemplate additional delay from the norm. Issues such as pre-sentence reports, Gladue reports, constitutional challenges and dangerous offender applications are proceedings that can fall outside normal sentencing hearing timelines. However, I would say that pre-sentence reports are much more common and not an exceptional feature in most cases. Usually, they can be requested without impact on the sentencing hearing date. However, available resources in this area have seen increased delays in obtaining pre-sentence reports. These are important delays that can impact the completion of the sentencing process.

[38] In the present case, the pre-sentence report for Mr. Bruce was received three months and 14 days after the verdict. As for Mr. Montgiraud, it was three months and 7 days. Finally, for Mr. Saberi, the receipt date is not clear but the pre-sentence report is dated almost two months after the plea. I do not find these delays to be unreasonable. However, in the context of a 5-month ceiling for the sentencing process to be completed, it presents a challenge for the trial judge seeking to be proactive and schedule a sentencing date that can leave room for unforeseen delays.

[39] Although I have identified the initial period of defence delay for the pending constitutional challenges that did not proceed, in the alternative, that period could also be categorized as part of the discrete event of a constitutional challenge. While not impossible, it would be a challenge to complete a constitutional challenge to a mandatory minimum sentence and a sentencing hearing for three offenders in five months. It is clearly outside the normal sentencing procedure. Generally, these are exceptional circumstances that do not form part of the normal sentencing process. Each case would be assessed on its own timeline and could be impacted by the complexity or simplicity of the issues. However, I am of the view that in most circumstances, a Charter application within the sentencing process, with the requirement for notice to the Federal Crown, would qualify as a discrete event and that generally, there is little that the Crown can do in advance of a finding of guilt.

[40] Here, the parties identified the need for a preliminary finding on the availability of the mandatory minimum sentence as of August 29, 2019. The parties and the Court were proactive in bifurcating the issue and proceeding with an initial half-day appearance to argue the s. 12 Charter issue. The parties also severed the Saberi sentencing hearing to reduce the time required for the sentencing hearings. This made it easier to schedule the sentencing hearings amongst the group of experienced and very busy counsel involved. By October 9, 2019, a decision was obtained that eliminated the need to argue the Charter issues and the simple sentencing hearings could then proceed. As such, the period up to October 9, 2019 is made up of a combination of defence delay and the discrete event for these constitutional challenges.

[41] Consequently, the total delay for Mr. Saberi is reduced by four months and two days and the total delay for Messrs. Bruce and Montgiraud is reduced by three months and five days. Each post-verdict delay period is therefore below the presumptive ceiling. No party argued that a delay under the presumptive ceiling was still a breach of s. 11(b) of the Charter.

[42] While I do not need to deal with the parties’ submissions on other specific periods of delay in these proceedings, I make the following comments:

a. I am of the view that all parties made efforts to find available dates for the various steps in these proceedings and I would not have attributed any defence delay to any of the appearances or communications where dates were suggested and various counsel advised of their availability. There were four parties to these proceedings and all parties worked cooperatively to bring the sentencing proceedings to a timely conclusion. This added an element of complexity that would normally be factored into the analysis;

b. In the overall picture, it is relevant that each of these matters continues to be under the presumptive ceiling for pre-verdict delay under Jordan;

c. In the Saberi matter, there would have been reason to consider the evidence provided by Mr. Saberi at the sentencing hearing which required the Crown to seek an adjournment to verify that evidence. Charley suggests that there should be a better communication between Crown and Defence leading up to a sentencing hearing and this could have been factored into the analysis; and,

d. It would likely have appropriate to deduct the time taken by the Court to release its decision on the Scarlett matter and consider the unavailability of this Court to schedule matters in January and February, 2020.

[43] When faced with a 5-month presumptive ceiling, these discrete events take on more importance and need to be properly considered in the face of a possible post-verdict stay of proceedings.

[44] Consequently, the applications pursuant to s. 11(b) of the Charter are dismissed.

Circumstances of the Offences

[45] The facts surrounding the commission of these offences arise from different sources. For Mr. Saberi, Crown and Defence filed an Agreed Statement of Fact with related materials at his guilty plea, he testified at his sentence hearing, and certain exhibits were filed.

[46] As for Mr. Bruce and Mr. Montgiraud, they were found guilty after a jury trial and they did not testify at their sentencing hearing. Each of the offenders spoke briefly after the submissions of their counsel.

[47] I am therefore required to make my own findings of fact for the purpose of sentencing. In doing so, I am guided by R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18:

First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C).

Nima Saberi

[48] In May 2017, Mr. Saberi’s cousin, Farbod Ghaemmagham-Farahani, shot himself outside the casino in Gatineau. Mr. Saberi and his cousin were close. After getting out of the hospital, the local Children’s Aid Society considered him a dangerous person. He needed to get rid of three firearms used for target practice and game hunting to avoid them being found by the CAS as this would put his children at risk of being apprehended. Mr. Farahani asked Mr. Saberi to dispose of the three firearms. At first, Mr. Saberi said he could not be involved, but Mr. Farahani kept calling and claimed that he was at risk of having his children apprehended. About 10 days later, Mr. Saberi agreed and took the three firearms from Mr. Farahani and stored them at his mother’s house in a crawl space.

[49] Mr. Saberi contacted Dominik Montgiraud to get rid of the guns. He knew Mr. Montgiraud through a mutual friend and had once heard Mr. Montgiraud say that he had a gun. He reached out to Mr. Montgiraud in mid-September 2017. Mr. Montgiraud got back to him on November 4, 2017 and confirmed that he would take the firearms. He transferred the three firearms to Mr. Montgiraud the next day. Mr. Saberi stated that he was not paid for the firearms and that he made Mr. Montgiraud promise that the firearms would only be used for hunting.

[50] In cross-examination, Mr. Saberi admitted that he was aware of Mr. Farahani’s criminal past, that Mr. Farahani sold drugs and that Mr. Saberi did not inquire if the firearms were registered. Mr. Saberi knew that it was illegal for him to take the firearms and that he did not turn his mind to legal ways to turn over the firearms to authorities. Mr. Saberi agreed that he did not inquire if Mr. Montgiraud was a hunter.

[51] Mr. Saberi suggested Mr. Montgiraud meet him behind the Rogers’ building on Ogilvy Road. He knew that he should not be transferring the firearms but he desperately wanted to get rid of them. He agreed that he did not ask as to why the firearms were shrink wrapped and was not aware that the serial number on one of the firearms had been ground off. The firearms in question were:

a. A Lee-Enfield rifle and 10 rounds of ammunition;

b. An Escort pump-action pistol grip 12-gauge shotgun with 7 shells;

c. A Browning 22LR long rifle with 15 rounds of ammunition.

Dominik Montgiraud

[52] It is implicit in the jury’s verdict that Mr. Montgiraud’s evidence at trial was rejected. The jury clearly did not accept that Mr. Montgiraud was unaware of what his half-brother Mr. Dacosta was doing on November 5, 2017 when he asked him to pick him up on Innes Road. Mr. Montgiraud used his rented vehicle to drop off Mr. Dacosta at a shopping centre on Ogilvy Road and went to meet Mr. Saberi to receive the three firearms and ammunition. Mr. Montgiraud would have been well aware that the items being transferred to his vehicle were guns as two of the firearms were clearly packaged in gun cases. The intercepted communications with the police agent show that Mr. Montgiraud was not simply a bystander in the transaction between Mr. Dacosta and the police agent.

[53] When they arrived at the Gloucester Mall, the video surveillance evidence clearly shows Mr. Montgiraud “keeping six” and at times was observing Mr. Dacosta transfer the firearms to the police agent’s vehicle.

Akada Bruce

[54] Akada Bruce was involved in three separate transfers of three firearms. They occurred on October 27, 2017 (McDonald’s in Gatineau), November 7, 2017 (St. Hubert in Gatineau) and November 20, 2017 (Chateau Lafayette in Ottawa) with each transaction taking place with Mr. Dacosta and Miles Kempffer Hossack. His evidence that he was a mere bystander during these transactions and that he effectively had no memory of them was rejected by the jury. This leaves open the possibility that he was simply a bystander, that he was the middle-man between Mr. Dacosta and Mr. Hossack or that he was an integral part of the transaction.

[55] The evidence available to the jury included the intercepted communications between Mr. Dacosta and the police agent, and the police surveillance showing Mr. Bruce meeting up with Mr. Dacosta and being present during the firearm transfers. There was also the police surveillance of Mr. Bruce’s handling of a paper bag at the McDonalds that appeared to contain money. As a result of findings of guilt on all firearms offences, the jury either found Mr. Bruce guilty as a principal or as an aider. The evidence at trial and the findings of the jury lead me to conclude that Mr. Bruce was more than a bystander; he was at least the middle-man between Mr. Dacosta and Mr Kempffer Hossack and he played a role in the firearms transactions.

[56] Mr. Bruce was also found guilty of possession of speed for the purpose of trafficking and theft of a passport. As for the speed, Mr. Bruce’s evidence that the drugs were solely for his personal use was clearly rejected by the jury. Otherwise, the jury clearly rejected Mr. Bruce’s evidence that he had little or no memory of any of the events surrounding these offences.

Circumstances of the Offenders

Nima Saberi

[57] Nima Saberi is now 30 years of age and was 28 years of age at the time of the offences.

[58] Mr. Saberi lived in a supportive and caring environment with his mother and sister. His parents separated when he was 9 years old and his mother worked seven days a week. Mr. Saberi was required to care for his sister as his mother could not pay for a babysitter. His mother describes him as “an amazing child who was extremely responsible, organized and never complained.” Mr. Saberi has a strong bond with his sister for whom he acted as a parent, and his relationship with his mother is one that is rarely seen. He has an incredibly deep relationship with his mother. As a youth, he worked part-time at the same restaurant where his mother worked as a waitress, and he gave her half of his pay cheque. He completed grade 12 at an adult high school while working part-time and has been able to reconnect with his father and his step-family in the sense that he has been required to support his father through difficult times.

[59] At the time of his arrest, he was involved in a relationship that ended as a result of the stress of these offences. The writer of the pre-sentence report was surprised at the number of support letters provided from high school friends, former colleagues, employers and family friends. He is described very positively as “more than a friend but a brother” who is trustworthy, loyal and compassionate. His nature is to always look at the needs of his family and friends before himself.

[60] As a result of his arrest, he was terminated from his much-loved job at Rogers Communications but has secured employment at a Pizza-Pizza franchise.

[61] The pre-sentence report summarizes that Mr. Saberi has numerous long-standing family, relatives, and friends that are ready to assist he and his mother as needed. He spoke openly about the offence. The report finds that there is no doubt that he lacked judgment and did not consider the long-term consequences of his actions. He has demonstrated genuine regret for his actions.

[62] There is no dispute that Mr. Saberi has been living under strict terms of bail. He has been required to reside with his mother and is subject to house arrest subject to limited circumstances including work and being with one of his sureties.

[63] In reading the pre-sentence report, I determine that Mr. Saberi presents a low risk of reoffending, and that he is a suitable candidate for community supervision.

Dominik Montgiraud

[64] Dominik Montgiraud was 25 years of age at the time of these offences. He is in fact a youthful first-time offender with no criminal record.

[65] Mr. Montgiraud is the eldest of 5 siblings. His parents separated when he was young, and he has a good relationship with his mother. He has also re-established contact with his father more recently. He is said to have always helped his siblings, and his siblings look up to him. He has a close relationship with his extended family, particularly his uncle Pierre Vilfort, one of his sureties.

[66] He has been in a relationship for nine years with a woman with whom he has purchased a condo, but the terms of his interim release have not allowed him to reside with her. They do not have any children.

[67] Mr. Montgiraud completed high school and a Police Foundations program at a local college. He also studied criminology for a year and a half at a local university. He took a semester off from college and began working in a kitchen. He has maintained employment in the food industry since then. He is currently employed full-time in a management position at a local restaurant. Mr. Chaar is his employer and speaks highly of Mr. Montgiraud. Should he receive a custodial sentence not in the community, Mr. Chaar has said that he will be able to return to his job once the sentence has been completed. Mr. Montgiraud’s goal is to eventually own his own restaurant.

[68] Mr. Montgiraud is described as a loyal person with a big heart. He is dedicated to his family and friends and always puts others’ needs before his own.

[69] The Pre-Sentence Report concludes that the offences express what appears to be poor judgment by Mr. Montgiraud that does not align with information provided by collateral sources. The events transpired not long after he lived a traumatic event with the death of a friend, and Mr. Montgiraud has expressed a willingness to complete some type of programming or counselling to address this trauma. He is a suitable candidate for community-based supervision.

[70] He was not a target of Operation Sabotage and was not known to police as these events were unfolding. After his arrest, he was detained from December 14, 2017 to December 21, 2017. He was on strict bail conditions for 26 months with some gradual modifications. To this date, he remains effectively on house arrest with some ability to go to work and go to the gym. He has four sureties: his girlfriend, his mother, his uncle, and his co-worker at Baton Rouge, Mr. Chaar. In August 2018 he was allowed to go to the gym with Mr. Chaar, and in October 2018, he was allowed to be out in the community while in the presence of his girlfriend for 4 hours, 3 days a week. In April 2019, a concession was made to allow him to go to Mexico for a vacation with two of his sureties.

[71] In reading the pre-sentence report, I determine that Mr. Montgiraud presents a low risk of reoffending, and that he is a suitable candidate for community supervision

Akada (Roger) Bruce

[72] Akada Bruce was 40 years of age at the time of the offences. He is now 42 years of age and is a first-time offender. He is the eldest of three children born from his parents and has an older half-brother. His parents separated in 2000, and his father passed away in September 2017. Mr. Bruce’s father was an alcoholic and Mr. Bruce was the subject of corporal punishment at the hands of his father. Mr. Bruce still considered his father as a “super hero”.

[73] The pre-sentence report indicates that after his father’s death, Mr. Bruce resorted to drugs and alcohol, and that this led to his involvement in these offences.

[74] Mr. Bruce completed high school and maintained part-time work during high school. He then completed a college diploma in Food and Hotel Management. He now works at a downtown pub/restaurant as a dishwasher and is training to be a line cook. He is reported to be well liked at work.

[75] Mr. Bruce began taking speed in 2015 to stay awake for 24 to 72 hours straight in order to produce music and promote parties. Following the death of his father in 2017, he would self-medicate with alcohol and speed. He now claims to be clean from all drugs and claims to consume alcohol only on very rare occasions. This was confirmed by his girlfriend.

[76] As for the offences, Mr. Bruce claims to have been willfully blind to what was happening around him and accepts responsibility. Collateral sources had positive impressions of Mr. Bruce, and the impression that he has cut his access to social media and music promotion to distance himself from that lifestyle. He has made positive changes since his arrest and made efforts to become a better person. He presents as a suitable candidate for community supervision.

[77] He was not a target of Operation Sabotage and was not known to police as these events were unfolding. After his arrest, he was detained from December 14, 2017 to December 27, 2017. From December 27, 2017 to October 9, 2018 (9.5 months) he was on strict house arrest unless accompanied by his surety, his mother. From Oct 9, 2018 to today, he was on house arrest except when accompanied by his mother and with the added exception to attend work (16.5 months). He has therefore been on strict bail conditions for 26 months.

[78] In reading the pre-sentence report, I determine that Mr. Bruce presents a low risk of reoffending, and that he is a suitable candidate for community supervision

Position of Crown and Defence

[79] The Crown’s argument focussed on the fact that the circumstances of the offences are not appropriate for a conditional sentence. In addition, the specific provisions of s. 742.1 of the Criminal Code do not allow for a conditional sentence. Even if the mandatory minimum has been struck, it still remains for the purpose of s. 742.1 and prevents conditional sentences. In addition, the Crown argues that the offences involved firearms and that section 742.1(e)(iii) also prevents a conditional sentence. The Crown relies on evidence of the Ottawa Police Service Guns and Gangs Statistics of 78 shootings in 2018 to warrant custodial sentences of incarceration. In the end, the Crown states that these offences require a real jail term to meet the principles of denunciation and deterrence.

Nima Saberi

[80] With respect to Mr. Saberi, the Crown’s position is that a sentence of 4 years of imprisonment is appropriate, netted out to 3.5 years as a result of the pre-trial detention and the strict bail conditions in accordance with R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.). The Crown also seeks various ancillary orders, which were not disputed or argued by the Defence. The Crown relies on the fact that in gun trafficking cases, the objectives in sentencing are denunciation (both general and specific) and deterrence.

[81] The Defence for Mr. Saberi submits that the circumstances of this offence place Mr. Saberi with a lower level of moral blameworthiness given his attempt to help his cousin get rid of these guns. Mr. Saberi did not profit from the transfer, and the Defence argues that a 12-month conditional sentence to be served in the community is appropriate. Alternatively, the Defence suggests that if the circumstances require a custodial sentence of incarceration, a net one-year sentence would be appropriate.

Dominik Montgiraud

[82] The Crown seeks a five-year sentence for Mr. Montgiraud an argues that willful blindness is not made out on the facts. The intercepted communications between Mr. Dacosta and the police agent clearly demonstrate that Mr. Montgiraud was actively involved in the transaction.

[83] Counsel for Mr. Montgiraud also argues for a conditional sentence for his client. He points to the three firearms being non-restricted and to the fact that although the extent of Mr. Montgiraud’s involvement is unclear, there is no indication of links to gangs or organized crime. A fit sentence would be up to a 90-day intermittent sentence and up to 2-years conditional sentence. Thus, a blended sentence.

Akada (Roger) Bruce

[84] As for Mr. Bruce, the Crown argues that his involvement is more serious, as he was clearly the “back end” for three separate transactions between Mr. Dacosta and Mr. Kempffer-Hossack. His defence of not remembering was rejected, and there is no basis for willful blindness. Simply put, he brokered the gun deals, and this warrants a sentence between 6-7 years.

Counsel for Mr. Bruce argues that an 18-month conditional sentence is fit in the circumstances, as the evidence does not point to Mr. Bruce being a controlling or operating mind. At worst, he brought two people together, and there is no evidence that he profited. Alternatively, if a conditional sentence is not appropriate and if more than two years is required, it should be at the low end of the penitentiary range.

Mitigating and Aggravating Circumstances

[85] The Crown and Defence have referred to a number of mitigating and aggravating facts. I find that the following are relevant to these offences:

Nima Saberi

Mitigating Circumstances

[86] The relevant mitigating factors can be summarized as follows:

a. Mr. Saberi has maintained employment since high school and has led a pro-social life;

b. He has remarkable support of his family, friends, and his employer;

c. He pleaded guilty;

d. His motivation was not financial but to try to help his cousin; and,

e. He has shown genuine remorse and insight into the reckless manner in which he disposed of the firearms.

Aggravating Circumstances

[87] I find that the following aggravating circumstances are relevant in Mr. Saberi’s case:

a. The transfer of firearms is a serious offence that poses a risk to the public;

b. Although it was one transfer, it involved three firearms and ready ammunition;

c. He did not take reasonable steps to ensure that the firearms would not make it to the street, if that was his objective.

d. The moral and criminal responsibility is high for the trafficking of firearms.

Dominik Montgiraud

Mitigating Circumstances

[88] The relevant mitigating factors can be summarized as follows:

a. Mr. Montgiraud has maintained employment since high school and has led a pro-social life;

b. He has good support of his family, friends, and his employer;

c. Mr. Montgiraud has admitted to having at least been willfully blind.

Aggravating Circumstances

[89] I find that the following aggravating circumstances are relevant in Mr. Montgiraud’s case:

a. The transfer of firearms is a serious offence that poses a risk to the public;

b. Although one transfer – it involved three firearms and ready ammunition;

c. His participation would have facilitated three firearms being put out onto the street;

d. The moral and criminal responsibility is high for the trafficking of firearms.

Akada (Roger) Bruce

Mitigating Circumstances

[90] The relevant mitigating factors can be summarized as follows:

a. Mr. Bruce has maintained employment since high school and has led a pro-social life;

b. He has the support of his family, friends, and his employer;

c. Mr. Bruce has admitted to having at least been willfully blind.

Aggravating Circumstances

[91] I find that the following aggravating circumstances are relevant in Mr. Bruce’s case:

a. The transfer of firearms is a serious offence that poses a risk to the public;

b. He was involved in three transactions for three prohibited firearms, and this could have led to three prohibited firearms being on the street;

c. The moral and criminal responsibility is high for the trafficking of firearms; and,

d. The motivation for trafficking in both drugs and firearms is usually financial.

Principles of Sentencing

[92] When sentencing offenders, s. 718 of the Criminal Code directs sentencing judges to consider denunciation, deterrence, separation from society, rehabilitation, reparation, promotion of responsibility, and acknowledgement of harm done by offenders. As a fundamental principle, sentencing judges are also required to consider that punishment must be proportionate to the gravity of the offence or offences and the degree of responsibility of the offender. The primary applicable principles in this case are denunciation, deterrence, and separation from society, but rehabilitation cannot be overlooked and can be more relevant given the age of the offender.

[93] Both Crown and Defence filed submissions on sentencing. The cases relied upon provide different facts, different counts before the Court, and in some cases, pleas of guilt.

[94] Section 718.2 also includes a number of principles such as taking into account aggravating and mitigating factors, that sentences be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and that offenders should not be deprived of liberty if less restrictive sanctions may be appropriate.

[95] The Court is also guided by our Court of Appeal in R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (Ont. C.A.) that when sentencing a youthful first offender, trial judges must be particularly mindful of the principle of restraint and emphasize the sentencing principles of specific deterrence and rehabilitation. This is also applicable for violent or serious offences. This was also expressed in R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797 for sentencing first offenders, but that the court must also give weight and importance to the other relevant factors which increase with the seriousness of the crime.

[96] As to the availability of a conditional sentence, when I consider s. 742.1 of the Criminal Code, I am of the view that a conditional sentence remains available and that in the proper circumstances, they still allow for the Court to meet the sentencing goals of deterrence (particularly individual deterrence) and denunciation. Specifically, my earlier ruling concerning the mandatory minimum sentence allows me to conclude that it has in effect been “taken off the books”, and that the provisions of s. 742.1(b) do not apply. In addition, I am not of the view that the term “use of a weapon” in s. 742.1(c) would not apply here, and I adopt the reasoning R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, at para. 32 where the use of a weapon would be to facilitate the commission of an offence. Here, that is not the case. I conclude that a conditional sentence remains available for an offence under s. 99(2) of the Criminal Code.

[97] The Crown provided a table of cases which included offences that were clearly beyond the level of moral blameworthiness applicable to all three offenders and particularly for Mr. Saberi and Mr. Montgiraud and to a lesser extent Mr. Bruce. I highlight the following:

a. R. v. Green, 2015 ONSC 6290: 7 counts of trafficking firearms and 16 counts of possession for the purpose of trafficking. 7 firearms recovered because of their use in violent offences, no guilty plea, 8-year global sentence less credits;

b. R. v. Cater, 2012 NSPC 38: 6 counts relating to the illegal possession of three firearms, 8 counts of firearms trafficking, no guilty plea. Global sentence of 9.5 years reduced to 8 years per totality.

c. R. v. Santapaga (17 December 2013), Toronto (Ont. C.J.): one count of trafficking a firearm and 14 counts of possession of a firearm for the purpose of trafficking. Guilty plea. Global sentence of 9 years less credits. Sentence on trafficking count was 4 years. One firearm found and 13 still missing. While this offender committed the offence to get out of a debt with illegal interest rates, his offences were based on 14 separate firearms purchases.

d. R. v. Prest-Guido (27 June 2018), Ottawa, 17-2116 (Ont C.J.): three counts of trafficking firearms and trafficking fentanyl. Both described as lethal weapons and the offender played a significant role in the offences and was not a peripheral party. Guilty plea. Global sentence 8 years on a joint sentence.

e. R. v. Sayeed (4 December 2018), Ottawa 18-1802 (Ont. C.J.): Three counts of trafficking cocaine and one count of offering to transfer a prohibited firearm (a handgun), possess proceeds of crime, and money laundering. Guilty plea. Global sentence of 4.5 years with 4 years on the offer to traffic firearm.

f. R. v. Carriere (27 February 2018), Ottawa 17-2114 (Ont. C.J.): One count of trafficking a firearm (a handgun) and the trafficking of cocaine and offer to sell fentanyl. Organized crime element. Guilty plea. Global sentence of 4 years.

[98] The common feature of most of these cases is that the offenders were either involved in multiple transactions for the transfer of firearms or played a direct role in the criminality of the offences charged. Only Sayeed and Carriere are closer to the sentence requested by the Crown for Mr. Saberi, but they reflect higher levels of moral blameworthiness than each of these offenders.

[99] As for the cases put forward by the Defence, they all involve cases in which conditional sentences were imposed. A number of these dealt with the purpose behind conditional sentences, including the leading case of R. v. Proulx, 2000 SCC 5. I highlight the following:

a. R. v. Nur, 2015 SCC 15: the SCC referred to the person engaged in truly criminal conduct who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. For that person, the three-year minimum sentence may be appropriate, but for others whose conduct is less serious and pose less danger, the appropriate sentence may be lower but not disproportionate to the three-year minimum;

b. R. v. Wetelainen, 2019 ONSC 869: Guilty plea on 8 counts – one count of transfer of a firearm (a revolver), possession of a firearm, theft, and possession of the proceeds of crime. Aboriginal offender with history of addiction. 9-month conditional sentence.

c. R. v. Friesen, 2015 ABQB 717: 48-year-old accused, no prior record, pleaded guilty to transfer of two rifles. One was used to commit suicide. Purchaser known to the accused and no evidence that the firearms would be used for criminality. 6-month conditional sentence.

d. R. v. Sauve, 2018 ONSC 7375: 19-year-old first offender, one count of firearms trafficking of a prohibited weapon. Offender assisted a friend to purchase the firearm. 9-month conditional sentence.

e. R. v. Roberts, 2019 ONCJ 22: 55-year-old with an unrelated criminal record. Transfer of an AK47 – prohibited firearm with ammunition for $6000. Not obtained by crime. Sold to a police agent without knowledge of the destination. Guilty plea. 12-month conditional sentence.

Analysis

Nima Saberi

[100] Mr. Saberi is now 30 years of age (28 years of age at the time of the offences) and is still a somewhat youthful first offender.

[101] I have considered the aggravating and mitigating circumstances with respect to this offender. The Criminal Code directs that the primary consideration be the objectives of denunciation and deterrence of Mr. Saberi’s conduct. I have considered the evidence of his family supports and the merits of a custodial sentence of incarceration or served in the community.

[102] As for Mr. Saberi’s good character, the pre-sentence report and his testimony as part of this sentencing hearing lead me to conclude that the circumstances of this offence are outside of Mr. Saberi’s character and form part of an isolated instance of willful blindness to the impact of his actions of facilitating three firearms being put out on the street. His reliance on the assurances of Mr. Montgiraud as to the use of the firearms was reckless and frankly ridiculous. However, this does not change the extent to which those involved in Mr. Saberi’s life have attested to his good character and the role he has played within his family in support of his mother, sister, and then, years later, his father. Such actions are testaments to his good character and his prospects for rehabilitation.

[103] The offence to which Mr. Saberi has pleaded guilty is clearly a serious one. In a single transaction, he took three firearms, none of which were prohibited or restricted, but also firearms where at least one, the shotgun, would not commonly be used for hunting, and put them out on the street in a reckless manner. There is no evidence that he profited from the transfer, and the evidence does not suggest that he was otherwise part of any form of criminality surrounding firearms, drugs, or the other matters that formed part of this police investigation. It is only as a result of sound policework that the firearms were taken off the street.

[104] I conclude that Mr. Saberi’s moral blameworthiness is slightly higher than that found by the courts in both Sauve and Roberts given the recklessness he showed in putting these firearms back out onto the street and his misplaced faith in Mr. Montgiraud. Considering Mr. Saberi’s personal circumstances and the circumstances surrounding his involvement in this offence, I deem that a custodial sentence of 20 months is appropriate with that sentence to be served in the community. This sentence will be reduced by 4 months for house arrest as per Downes and 14 days for pre-trial custody.

[105] The following conditions are imposed as part of the conditional sentence:

a. The statutory conditions;

b. He shall remain on house arrest during the conditional sentence and reside with Batool Azadi, Hassan Saberi or such other person approved by his supervisor. He will be allowed to leave his house for 4 hours on the weekend for the necessities of life between 10am and 6pm, for work or programs, to consult with counsel or as otherwise approved by his supervisor.

c. He must report to a supervisor within the next working day and thereafter as directed;

d. He must reside where directed by a supervisor;

e. He must remain in Ontario unless the prior written permission from the court or supervisor to leave the province has been obtained;

f. He must have no contact with Mr. Montgiraud, Mr. Dacosta or Mr. Bruce;

g. He must attend actively and participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor;

h. He must make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the supervisor, or attend school or an educational training program approved by the supervisor and provide proof as required by the supervisor.

[106] I also impose a two-year term of probation. As for the terms of probation, I include the statutory conditions and the following:

a. Report as directed;

b. Not associate or communicate in any way, by any physical, electronic or other means, or be in the company of Jeff Franklin, Dominik Montgiraud, Tarantino Dacosta or Akada Bruce.

c. Not possess any weapons as defined by the Criminal Code;

d. Not to apply for any authorization, licence, registration for any weapon.

Dominik Montgiraud

[107] Mr. Montgiraud is now 28 years of age and was 25 at the time of the offences. He was and still is a youthful first offender.

[108] I have considered the aggravating and mitigating circumstances with respect to this offender. The Criminal Code directs that the primary consideration be the objectives of denunciation and deterrence of Mr. Montgiraud’s conduct. I have considered the evidence of his family supports, and I have considered the merits of a custodial sentence.

[109] As for Mr. Montgiraud’s good character, the pre-sentence report and the information from collaterals have allowed me to conclude that the circumstances of these events represent an inconsistency with the path he has followed to date. While the jury clearly rejected his no knowledge defence, I am also not persuaded that the facts can lead to a finding of willful blindness. He is frequently mentioned in the police intercepted communications, he readily went to meet Mr. Saberi on his own, he was in the truck during the intercepted communication on route to Gloucester Place, and his role “keeping six” during the transfers, allow me to conclude that he was not willfully blind but aware of the transaction between Mr. Dacosta and the police agent and specifically of what he was receiving from Mr. Saberi. While I do agree, however, that the offences are outside of Mr. Montgiraud’s character and form part of an isolated instance in which he accepted to help a family member, he facilitated the transaction intended to put three firearms out on the street. However, this does not change the extent to which those involved in Mr. Montgiraud’s life have attested to his good character and the role he has played within his family. These support his prospects for rehabilitation.

[110] The offences to which Mr. Montgiraud has been found guilty are clearly serious, but they result from one transaction. He participated in a plan to put three firearms out on the street, none of which were prohibited or restricted. There is no evidence that he profited from the transfer and the evidence does not suggest that he was otherwise part of any form of criminality surrounding firearms, drugs, or the other matters that formed part of this police investigation. Still, the circumstances of this offence require a custodial sentence.

[111] I conclude Mr. Montgiraud’s moral blameworthiness is higher than that found by the courts in both Sauve and Roberts and also in the case of Mr. Saberi. He also does not get the benefit of the guilty plea. Considering Mr. Montgiraud’s personal circumstances and the circumstances surrounding his involvement in this offence, I deem that a sentence of 2 years and 6 months is appropriate on each of the s. 99(2) offences, less 12 days of pre-sentence custody and credit of 9 months for 26.5 months of house arrest which was less restrictive than Mr. Bruce’s house arrest. This leaves a net sentence rounded down to 20 months on each transfer count (concurrent to each other) to be served in the community as a conditional sentence of imprisonment.

[112] The following conditions are imposed as part of the conditional sentence:

a. The statutory conditions;

b. The first 10 months shall be served on house arrest to reside with Ms. Hanhan, Mr. Vilfoy, Mrs. Vilfoy, Mr. Chaar or another person approved by his supervisor. He will be allowed to leave the house for 4 hours on the weekend for the necessities of life with one of those four persons between 10am and 6pm, for work or programs, to go to the gym for two hour periods between 8:00am and 6:00pm or as otherwise approved by his supervisor;

c. For the remaining 10 months, he will have a curfew as determined by his supervisor and reside where directed by a supervisor.

d. He must report to a supervisor within the next working day and thereafter as directed;

e. He must remain in Ontario unless the prior written permission from the court or supervisor to leave the province has been obtained;

f. He shall have no contact with Mr. Saberi, Mr. Bruce, Mr. Dacosta or Miles Kempffer-Hossack during the conditional sentence;

g. He must attend actively and participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor;

h. He must make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the supervisor, or attend school or an educational training program approved by the supervisor and provide proof as required by the supervisor.

[113] On the three counts of possession of a firearm in a vehicle, I sentence Mr. Montgiraud to 30 days to be served intermittently, concurrent to each other. This sentence shall be served before his 20-month conditional sentence and those sentences shall be consecutive to one and other. During his intermittent sentence, his conditions of house arrest will apply and he shall have no contact with Mr. Saberi, Mr. Bruce or Mr. Dacosta.

[114] On the count of possession of proceeds of crime, I impose a sentence of three months to be served concurrently to the conditional sentence.

[115] To this will be added a two-year probation period to include the statutory conditions and the following:

a. Report as directed;

b. No posses any weapons as defined in the Criminal Code

c. Complete community service hours as recommended by the Probation Officer;

d. Attend any assessments, counseling, or rehabilitative programming as directed by your Probation Officer;

e. Sign any release of information forms necessary to monitor attendance and progress at any assessments, counseling or rehabilitative programming.

Akada (Roger) Bruce

[116] Mr. Bruce is now 42 years of age and was 40 years of age at the time of the offences. He is a first offender.

[117] I have considered the aggravating and mitigating circumstances with respect to this offender. The Criminal Code directs that the primary consideration be the objectives of denunciation and deterrence of Mr. Bruce’s conduct. I have considered the evidence of his family supports, and I have considered the merits of a custodial sentence of incarceration and in the community.

[118] As for Mr. Bruce’s character, the pre-sentence report and the evidence from the trial leave me with questions as to his criminal involvement. His lack of memory at trial was clearly rejected by the jury as not credible. Although willful blindness was left with the jury and the jury’s finding is ambiguous, I find that the evidence leads to the conclusion that Mr. Bruce was fully aware of the firearms transactions that occurred on three different occasions, and I reject his further position of willful blindness.

[119] What has remained open for consideration is his level of involvement. Was he the person who simply brought Mr. Dacosta in contact with Mr. Kempffer-Hossack, or was he as suggested by the Crown as the “back end” of the firearms transfers? To find Mr. Bruce as either the back-end of the transfers would be an aggravating circumstance, and this requires proof beyond a reasonable doubt. In considering the totality of the evidence, namely the surveillance evidence at the McDonalds and during the other transactions, the available inference that there was simply food in the paper bags at both McDonalds and St. Hubert, the officer’s separate observations of a transfer of a paper bag at McDonalds which was not seen on the video, and the absence of other evidence that Mr. Bruce played an active role in the transfers, I have concluded that Mr. Bruce’s role as the “back-end” of the firearms transactions is not established beyond a reasonable doubt. I therefore conclude that Mr. Bruce was the person who knew both Mr. Dacosta and Mr. Kempffer-Hossack, and that he brought them together to complete their firearms transactions. This is an important distinguishing feature from the case law relied upon by the Crown to warrant a sentence of 4 plus years.

[120] I have also considered the evidence surrounding Mr. Bruce’s possession of speed for the purpose of trafficking. The evidence at trial does not include observations of Mr. Bruce involved in drug transactions that are contemporaneous with the firearms transactions.

[121] However, the offences to which Mr. Bruce has been found guilty are serious. Gun trafficking, trafficking in drugs, and having a passport obtained by crime with no explanation as to the nature of the criminal involvement leave open important questions about Mr. Bruce’s level of involvement in all the offences.

[122] I conclude that a proper sentence for Mr. Bruce is one that does not involve a penitentiary sentence. In addition, I have considered the arguments in support of a conditional sentence, and conclude that it is not appropriate in these circumstances. Mr. Bruce was involved in facilitating three separate prohibited firearms transactions, was involved in drug trafficking, and there are legitimate questions surrounding his possession of stolen passport. This removes him from the range of cases where single incident firearms transfers have warranted a conditional sentence.

[123] A fit sentence for the firearm transfers is two years and 9 months. To this, a reduction is applied for the equivalent of 21 days pre-trial custody and 10 months credit for 26.5 months of house arrest in accordance with the principles enounced in Downes. This leaves a net sentence rounded down to 22 months for each transfer offence to be served concurrent to one and other.

[124] As for the two counts of possession of a firearm in a motor vehicle, a 12-month sentence on each count to be served concurrently to all other counts.

[125] On the three counts of possession of proceeds of crime, I impose a sentence of six months to be served concurrently to all other counts.

[126] On the two counts of possession of a prohibited firearm with accessible ammunition, I impose a sentence of 12 months to be served concurrently to all other counts.

[127] On the possession of methamphetamine for the purpose of trafficking, I impose a sentence of 5 months to be served concurrently to all other counts.

[128] On the possession of property of crime count, I impose a sentence of 60 days to be served concurrently to all other counts.

[129] To this will be added a two-year probation period to include the statutory conditions and the following:

a. To report as directed;

b. To abstain from the purchase, possession or consumption of any drugs not medically prescribed;

c. To reside at an approved address;

d. To not associate or communicate directly or indirectly with any co-accused in this matter or anyone known to him to have a criminal record or a record under the Controlled Drugs and Substances Act;

e. To seek and maintain employment and provide proof of same;

f. To be under the care of a General Practitioner or medical professional and review medications and take same as prescribed.

Ancillary Orders

[130] In addition, I impose the following ancillary orders for each offender:

a. A s. 109 of the Criminal Code 10-year weapons prohibition;

b. A section 487.051(3)(b) of the Criminal Code DNA order;

c. An order for the forfeiture of offence-related property and an order that the guns be destroyed. Crown to file a draft forfeiture order.

Justice Marc R. Labrosse

Released: March 16, 2020