Court File and Parties
COURT FILE NO.: 21-28
DATE: 2021/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Tony N’Zoigba
Defendant
Counsel:
Paul Syrduk, counsel for the Federal Crown
Barb Glendinning, counsel for the Provincial Crown
J. Gilbert, counsel for the Defendant
HEARD: June 1, 2021
REASONS FOR SENTENCE
J. lafrance-Cardinal
[1] On June 1st, 2021, Mr. Tony N’Zoigba pled guilty to the following:
a) Count #1, importation of 9 handguns contrary to s. 103 (1) (a) of the Criminal Code.
b) Count #2, importation of 14 high capacity detachable box cartridge magazines contrary to s. 103 (1) (a) of the Criminal Code.
c) Count #3, possessing 9 handguns unlawfully imported into Canada under s. 155 of the Customs Act, thereby committing an offence under s. 160 of the said Act.
d) Count #4, possessing 14 high capacity cartridge magazines, unlawfully imported into Canada contrary to s. 155 of the Customs Act thereby committing an offence under s. 160 of the said Act.
[2] The Provincial Crown is seeking a sentence of 5-6 years in the federal penitentiary. The Federal Prosecutor is joining his Provincial counterpart in seeking a sentence of 5-6 years but is asking that within that sentence some consecutive jail time be allocated to the Customs Act charges. Defense is seeking a sentence of 3½-4 years taking into consideration the principle of restraint as we are dealing with a young person with no criminal record and taking into consideration the principle of totality of sentence.
[3] The maximum sentences as provided for in the Criminal Code is one of 10 years for both Criminal Code offenses. The Customs Act charges provides for a maximum sentence of 5 years. The minimum sentence on s. 103 is one of three years.
[4] The facts can be summarized as follows:
[5] On June 10th, 2020, Cornwall RCMP and CBSA were conducting river surveillance on an unrelated matter. The undercover officer was parked in the parking lot of the Blue Anchor Restaurant on the shores of the St. Lawrence River. His car was facing the river. He observed a boat carrying three occupants, two Caucasians and a black male hovering around the restaurant. The boat landed at the Blue Anchor Restaurant dock, the black occupant exited the boat carrying a duffle bag and the other two occupants left the scene in the boat.
[6] The undercover officer took pictures as this scene unravelled before him. He noticed that the individual who had disembarked, was trying not to be seen attempting to avoid detection from passing vehicles. Shortly thereafter, a Honda SUV, Ontario licence plate CCMP 392 pulled into the parking lot and the young individual grabbed his bag and walked to the rear of the Honda. The car left the scene travelling west on Highway #2.
[7] A constable located the car just south of Highway 401 and another constable came to assist. They observed 4 young individuals inside the SUV, they advised that they were coming from a friend’s home.
[8] The young males were advised that they were being detained under s. 99 (1) (f) of the Customs Act for a search. Mr. N’Zoigba admitted coming from Cornwall Island and he was made to exit the vehicle. Prior to exiting, he removed a fanny pack, he later admitted it was his and his passport was found inside.
[9] The officer opened the rear hatch of the vehicle, observed a duffle bag that matched the description seen by the undercover officer. The duffle bag was opened and 9 firearms in individual clear plastic bags were found together with cartridge magazines. It was later found that three of the seized guns had originated in Texas, U.S.A. and there were no records of the guns having lawfully entered Canada.
[10] All 4 individuals were arrested, their cell phones were seized. No texts communications were recovered from Mr. N’Zoigba’s cell phone, but 3 videos were recovered, all taken on June 8th, 2020, the videos show guns similar to those seized on June 10th, 2020.
The accused
[11] A very extensive and helpful pre-sentence report was prepared, even though it provides little insight as to what this young man was doing from 2018 when he came back to Canada and the date of the offence in June 2020.
[12] The PSR indicates that Mr. N’Zoigba was born in Congo. He is presently 24 years of age. He is the middle of 6 children born to the same mom and dad. He immigrated to Canada with his mother in 1999. He received his Canadian citizenship in 2006. It was a traditional family with a stay-at-home mom, who was able to upgrade her education and become a teacher, and a hard working father, who was the disciplinarian, who expected his children to respect elders and to not talk back and to be a “stand-up” person.
[13] Mr. N’Zoigba’s youth, especially as a teenager, saw him concentrate on his athletic skills. He grew up playing football but then chose to concentrate on his athletic talents of track and field. He had ambitions to become an Olympian and was disappointed that he was not picked to be a member of the team. He eventually returned to football hoping to be able to play professionally.
[14] His professional aspirations in becoming a professional athlete was unconditionally supported by his mother but not by his father. His father believed that the key to success was through education and he had been raised to believe that only “poor” children played sports. To this date, Mr. N’Zoigba still needs to work on mending his relationship with his dad. After some failed attempts in obtaining a football scholarship in the States, he accepted an offer to study at the Junior Military College in New Mexico and to play football. He dropped out halfway through his second year. He confessed to lying about dropping out to his parents. He did move back to Canada in 2018. He couched surfed for a while, worked with a friend at a moving company, made enough money to travel to Europe for 3 months. In 2019, he commenced working in a restaurant. He lost his job because of COVID and was deemed to be ineligible for the CERB program. He had no source of income when this offence was committed, and he was unable to secure an alternative source of income.
[15] Collateral sources indicate that the choices made on June 10th, 2020 were financially driven and not criminally driven. They note that Mr. N’Zoigba has always been focused and disciplined to achieve the goals he set himself and that he is capable of succeeding with the right guidance.
[16] The court does share the views of the author of the pre-sentence report in that few details are given as to his life when he came back to Canada in 2018. It seems unrealistic that he could have earned enough money working at a moving company to be able to afford 3 months touring Europe. There is no information as to how, when, and why he ceased his trajectory in professional sports and began criminal activity. The breach of his bail condition for which he pled guilty also leaves me wondering as to the why.
The Victim Impact Statements
[17] There are no victim impact statements filed as the guns had not yet had a chance to create havoc in the streets.
[18] The observations made by McMahon J. in R. v. Poyser (Unreported 17 March 2021) summarizes it well.
“Sadly, the proliferation of firearms in our community is not going away. The illegal handgun is the most important tool of the criminal. Drug trafficking, robbery, intimidation of others, murders, attempted murders. It is not an exaggeration to conclude that illegal handguns and their use in this city have reached an epidemic level. Innocents being shot and injured or killed due to random gunfire. On the case law and cases before this court they are replete with tragic consequences of gun violence on the street. Children being shot while playing in a playground with their mom. A young child shot and killed at a birthday party. Innocents being shot at a community BBQ. A teenage girl shot in the head in her apartment when a random bullet enters the apartment and strikes her. Drive-by shootings on the streets are too common. Shootings on public streets, in broad day light. Young men, totally innocent being targeted and shot because of the neighbourhood they live in. There is not a neighbourhood or part of the city that is safe from gun violence.
Those who import and traffic in firearms for profit provide the tools that cause the deaths, injuries and tragedy.”
[19] We will never know where and in whose hands those 9 handguns and cartridge magazines were earmarked for.
The law
[20] In determining an appropriate sentence for Mr. N’Zoigba, consideration must be given to the sentencing principles enunciated in s. 718 of the Criminal Code.
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community
[21] Section 718.2 indicates that a sentence should be increased or reduced by any relevant aggravating or mitigating circumstances relating to the offence and or the offender.
[22] The mitigating factors in this case are as follows:
a) The early plea of guilt, acknowledging all of the factual allegations submitted by the Crown. He is the first of three other co-accused taking responsibility for his conduct.
b) The plea was taken during a pandemic, over the phone where court resources were more than limited. There were no pre-trial motions set or no trial dates set saving the court scarce resources.
c) Mr. N’Zoigba had no criminal record at the time he committed this serious offense.
d) He is a young 24-year-old first time offender.
e) The guns were not loaded and there is no evidence of sales or promises of sales, there were no ammunition.
f) Mr. N’Zoigba has the support of his mother, brother and good friends.
[23] The aggravating factors in this case are as follows:
a) The seriousness of the offence of importing firearms and high capacity cartridge magazines cannot be understated. It is what puts guns in the hands of criminals, of gang members of criminal organizations. Thankfully, by luck, those guns never made their way in the streets.
b) Mr. N’Zoigba was the principle accomplice who went and took possession of the guns and crossed them illegally into Canada via the St. Lawrence River. His moral blameworthiness is higher than the other 3 co-accused.
c) Mr. N’Zoigba was illegally importing not one gun but nine guns with high capacity detachable box cartridge magazines. All of the guns were prohibited in Canada.
d) There was some pre-planning involved in being driven to a location, in having a boat and driver ready to cross the St. Lawrence River and in having someone pick him up at the restaurant. However, it was not a sophisticated operation as evidenced by a text at the last minute between Mr. N’Zoigba and a co-accused giving the address of the restaurant where he would be picked up.
[24] Section 718.2(6) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders committed in similar circumstances. This always poses a challenge as there is very rarely two similar cases with similar offences and similar offenders. In R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No 3252 (C.A.) the court states:
“Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. There is no such thing as a uniform sentence for a particular crime.”
[25] Crown and Defence have provided many cases for the court to consider. Many are cases after trial which fails to take into consideration Mr. N’Zoigba’s plea of guilt. (R.v. Allison, 2021 ONSC 2455; R. v. Brown, 2019 ONSC 6690; R. v. Green, [2015] O.J. No. 5258; R. v. Marakah, 2015 ONSC 1576, [2015] O.J. No 1155; R. v. Sampogna, 2020 ONSC 1024; R. v. Saberi, 2020 ONSC 1637; R. v. Howell, P475/07; R. v. Taylor, 2013 ONSC 4306; R. v. Bajwa, 2020 ONSC 185, 2020 ONSC 0185, R. v. Ahmed, April 2021, unreported).
[26] Many of the cases that were provided are for findings of guilt in trafficking in drugs and possession of weapons, which is a lethal combination that is non existent in this case ( R. v. Brown, 2019 ONSC 6690 and R. v. Ahmed, April 2021, unreported).
[27] What is clear is that restraint must be exercised when dealing with a young person with no criminal record, R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 and R. v. Saberi, 2020 ONSC 1637.In R. v. Borde, 2003 4187 (ONCA), a case dealing with possession of a restricted loaded weapon and use of a firearm in the commission of an offence, the Court of Appeal stated that the length of a first penitentiary sentence for a young person cannot just be based on denunciation and general deterrence. It has to be the shortest possible sentence taking into consideration, the relevant sentencing objectives.
[28] The offence for which Mr. N’Zoigba has pled guilty are serious offences, however they result from only one event.
[29] Considering his personal circumstances, his moral blameworthiness, his youth, the fact that this was his first criminal offence: his prospect of rehabilitation; I find that although a penitentiary sentence is warranted that it need not be quite as high as the Crown is suggesting. Taking also into consideration the principle of totality of sentence, I believe a total sentence of 4 years less time served would satisfy all of the principles of sentencing. I concur with Justice O’Marra in the decision of R. v. Maraka [2015] No. 115 in paragraph 41 of his decision.
“The offences committed here require a denunciatory and deterrent sentence. The sentences imposed must be exemplary. Persons who put illegal firearms into the hands of those who may use them for criminal purposes and in doing so may kill or harm others need to know that they shall pay dearly for their crimes by the loss of liberty for very long periods of time.”
[30] Losing your liberty for 4 years when you are a young person with no criminal record is a very long time.
[31] The Federal Prosecutor asked that part of the sentence imposed be a consecutive sentence on the Customs Act offenses to emphasize and take into consideration the very special circumstances of our geographical location. I completely agree that Cornwall is vulnerable to this type of activity because we are bordering Canada/USA and Québec and Ontario. However, because I am dealing with 9 guns I am not prepared to give Mr. N’Zoigba the minimum sentence and because I am dealing with a young accused with no criminal record I am not prepared to give him a longer sentence than 4 years, consequently the sentence will be concurrent.
[32] I must now address time served. Defence counsel is asking me to consider time served at a ratio of 2 days credit for every day in pre-trial custody to give consideration to the repercussions of a pandemic while incarcerated.
[33] Crown suggests that some would argue that he should not even be given credit of 1.5 day for every day served as it is because of his breach that he found himself in custody pending disposition. In this case the Crown and counsel do not agree on any “Duncan” credit only that at a minimum the court could impose a “Summers” credit.
[34] Considering I already took into consideration the fact that the Accused pled guilty during a pandemic and considering the breach that brought the Accused back in custody, I am not prepared to give credit for pre-trial custody over and above the usual credit of 1.5 day credit for every day served.
[35] He has served 296 days true jail, he will be given credit for 444 days time served, which we will calculate as 15 months time served.
On count #1 and #2, the importation of 9 handguns and 13 cartridge magazines, contrary to s. 103(1)(a), the sentence will be 4 years less 15 months time served on count #1 concurrent on count #2.
On count #3 and #4, possessing 9 handguns and 13 cartridge magazines, unlawfully imported into Canada under s. 155 of the Customs Act, thereby committing an offence under s. 160 of the said Act, the sentence will be 2 years concurrent on each count.
There will be a lifetime weapon prohibition under s. 109 of the Criminal Code.
There will be a DNA order, it is a secondary offence.
There will be a forfeiture order of all guns and cartridges seized.
The Honourable Justice Johanne Lafrance-Cardinal
Released: September 10, 2021
COURT FILE NO.: 21-28
DATE: 2021/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Tony N’Zoigba
REASONS FOR SENTENCE
The Honourable Justice Johanne Lafrance-Cardinal
Released: September 10, 2021