Introduction

[1] On December 10, 2021, following a judge-alone trial, I delivered written Reasons for Judgment which are reported as R. v. Salvati and Sacco, 2021 ONSC 7905. I found Gianluca Salvati guilty of 22 different offences under the Criminal Code and the Controlled Drugs and Substances Act. I found Paolo Sacco guilty of two offences, one under the Criminal Code, and one under the Controlled Drugs and Substances Act.

[2] The matter was adjourned to obtain pre-sentence reports prior to sentencing. Although sentencing submissions were scheduled for February 4, 2022, they were adjourned on consent to April 13, 2022, and again on consent to May 26, 2022, on which date I received submissions from counsel for both accused. On June 9, 2022, I heard additional submissions regarding what, if any, credit Mr. Salvati should receive for pre-sentence custody.

The “Kienapple” issues

[3] As I noted at paragraph 67 of my Reasons for Judgment, many of the counts in the Indictment overlap such that convictions on some counts will be barred by the rule in Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 SCR 729. These issues affect several counts on which I have found Mr. Salvati guilty and should be addressed at the outset.

[4] The Kienapple rule was helpfully summarized by the Court of Appeal in R. v. Kinnear, 2005 21092 (ON CA) at paras. 27 – 32:

[27] In R. v. Kienapple (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.), the court recognized and arguably expanded the common law rule prohibiting more than one conviction for the same criminal wrong. Laskin J. explained that the principle foreclosed more than one conviction for offences arising out of the same delict. He said at pp. 538-39:

The relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences.

[28] The principle that emerged from Kienapple provides that where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences: R. v. Kienapple, supra, at p. 540. The other charges should be stayed: R. v. P. (D.W.) (1989), 1989 71 (SCC), 1989 71 (SCC), 49 C.C.C. (3d) 417 (S.C.C.).

[29] Laskin J. at p. 540 linked the “Kienapple” rule to the court’s power to protect against abuses of its process. He described the rule as designed to “protect an individual from an undue exercise by the Crown of its power to prosecute and punish”.

[30] In R. v. Prince (1986), 1986 40 (SCC), 30 C.C.C. (3d) 35 at 42 (S.C.C.), Dickson C.J.C. identified the same rationale for the rule:

[T]he Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped on an accused in respect of a single criminal delict.

[31] Kienapple, like most seminal authorities, left uncharted the full scope of the principle it created. It fell to the court in Prince, supra, to take up the task of designing an analytical framework to guide the application of the Kienapple rule in specific circumstances.

[32] Dickson C.J.C. for a unanimous court in Prince, held that the Kienapple rule precluded multiple convictions for different offences only where there was both a factual and a legal nexus connecting the offences. The factual nexus is established where the charges arise out of the same transaction. The legal nexus exists if the offences constitute a single wrong or delict. [Emphasis in original]

[5] In order to address this issue it is necessary to categorize the wrongs, or “delicts”, committed by Mr. Salvati.

[6] First, there are the many counts involving possession of a firearm. There is a factual nexus between them as they involve the single weapon which he possessed over the period of time of the events. However, the “legal nexus” inquiry requires consideration of “whether there are different elements in the offences which sufficiently distinguish them so as to foreclose the application of the Kienapple rule”: Kinnear at para. 34. As Doherty J.A. continued in summarizing this issue at paras. 38-39:

[38] Dickson C.J.C. in Prince at pp. 51-54 further elucidated the legal nexus inquiry by referring to three factors that will defeat any claim that different offences have a sufficient legal nexus to warrant the application of the Kienapple rule. These factors do bear repeating in these reasons. First, where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule. Second, where the offences allege personal violence against different victims, Kienapple will not foreclose convictions for offences relating to each victim. Third, where the offences proscribe different consequences, the Kienapple rule will not bar multiple convictions.

[39] I think the three factors identified in Prince as severing any possible legal nexus between offences provide further support for the view that the crucial distinction for the purposes of the application of Kienapple rule is between different wrongs and the same wrong committed in different ways. If the offences target different societal interests, different victims, or prohibit different consequences, it cannot be said that the distinctions between the offences amount to nothing more than a different way of committing the same wrong. [Emphasis added]

[7] Mr. Salvati has been found guilty of firearms possession charges under sections 86 (Count 13), 91 (Counts 14 and 15), 92 (Counts 17 and 18), 94 (Count 19) and 95 (Counts 20 and 25) of the Criminal Code. He also has been found guilty of a breach of a probation order prohibiting him from possessing a firearm contrary to s. 733.1 of the Criminal Code (Count 6), and of breaches of firearms prohibition orders arising from prior convictions made pursuant to sections 109 and 110 of the Criminal Code (Counts 21-24).

[8] Crown counsel acknowledges that Counts 17 and 18 duplicate Count 16 dealing with s. 92 of the Criminal Code. Similarly, Counts 23 and 24 duplicate Count 22 dealing with prohibitions under s. 110 of the Criminal Code. Although Counts 20 and 25 allege different dates, as the Crown points out there was a continuing offence of possession of a loaded firearm over two consecutive days and in my view that should be treated as one delict. Accordingly, Counts 17, 18, 23, 24 and 25 shall be stayed pursuant to Kienapple.

[9] Counts 14 and 15, which are offences under s. 91, are subsumed by Count 20 dealing with s. 95 of the Code. Accordingly, Counts 14 and 15 shall also be stayed.

[10] On the gun possession charges, therefore, convictions shall be entered on the following:

• Count 6 – s. 733.1(1)(a) (possession in breach of a probation order)

• Count 13 – s. 86(3)(a) (possession without reasonable precautions)

• Count 16 – s. 92(3) (possession without a licence)

• Count 19 – s. 94(2)(a) (present in a motor vehicle with a prohibited firearm)

• Count 20 – s. 95(2)(a) (possession of a loaded prohibited firearm)

• Count 21 – s. 117.01(3)(a) (possession while prohibited under a s. 109 Order)

• Count 22 – s. 117.01(3)(a) (possession while prohibited under a s. 110 Order).

[11] The pointing a firearm and assault with a weapon charges (Count 1, s. 87(2)(a), and Count 3, s. 267(a)), arise from identical facts – pointing a gun at Ms. Ricketts. Crown counsel argues, however, that the Kienapple rule does not apply as the offences have different legal elements, protect different societal interests and attract different punishments.

[12] I agree that the offences have different legal elements, but that is so in many cases where the rule applies and is not particularly helpful in determining the issue. Indeed, all the elements of pointing a firearm are found in the offence of assault with a weapon, which would favour application of the Kienapple rule.

[13] However, assault with a weapon attracts a penalty of up to 10 years, while the maximum sentence for pointing a firearm is only 5 years. Further, in my view the offences address different societal interests. One may, for example, lawfully possess a firearm but the law prohibits the dangerous and frightening conduct of pointing it at somebody, even if no threat or assault or intimidation was intended. This is different from assault with a weapon which prohibits using weapons in committing an assault.

[14] Counsel for Mr. Salvati drew my attention to R. v. Blair, 2009 49645 (ON SC), which applied Kienapple to stay a pointing charge when there was also an assault with a weapon charge. However, my application of the three factors referred to above leads me to a different conclusion. Accordingly, there shall be convictions on both Counts 1 and 3. There shall also be a conviction on Count 2 for uttering a threat contrary to s. 264.1(2)(a) of the Criminal Code.

[15] As to the driving offences, I found Mr. Salvati not guilty of Counts 4 and 5. The Crown concedes that Counts 9 and 10 which charge Mr. Salvati with operating a vehicle while prohibited under s. 320.19(5)(a) of the Criminal Code are duplicative of Counts 7 and 8 and should be stayed. I agree. Counts 9 and 10 shall be stayed and convictions shall be entered on Count 7 (breaching a probation order that he not occupy the driver’s seat of a motor vehicle) and Count 8 (driving while prohibited from doing so).

[16] No Kienapple issues arise with respect to Mr. Salvati’s drug trafficking offence under Count 35 and a conviction shall be entered on that charge.

[17] Mr. Salvati’s remaining charges, Counts 11 and 12, allege failing to “keep the peace and be of good behaviour” as required by two separate probation orders. As the orders are distinct, convictions shall be entered on both Counts.

[18] No Kienapple issues arise with Mr. Sacco. Convictions shall be entered against him on Count 32 for being in a motor vehicle knowing there was a prohibited firearm in the car contrary to s. 94(2)(a) of the Criminal Code, and under Count 37 for the included offence of possession of cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act.

Mr. Salvati’s Circumstances

[19] Mr. Salvati is 28 years old. He has been in trouble with the law since he was 15 years old. He has 62 prior convictions. These include convictions for drug possession and drug trafficking, assault, assaulting a police officer, threatening, including threatening a corrections officer, break and enter, robbery, possession of firearms and carrying a concealed weapon, dangerous driving and numerous breaches of probation, bail and other court orders, including driving prohibition orders. According to the Crown’s summary, Mr. Salvati has 24 previous convictions for breaching court orders. In 2013, almost 10 years ago, Mocha J. commented that, even then, Mr. Salvati had a “horrendous record in relation to breaches of court orders.”

[20] At the time he committed the offences that were tried before me, which he committed in August 2019, Mr. Salvati was facing charges of possession for the purpose of trafficking involving cocaine, fentanyl and crack cocaine, and possession of proceeds of crime, as well as breaching a recognizance that required him to be in the presence of his surety at all times. Those charges dated from November 2018 (the “2018 charges”). Although the Crown submitted that Mr. Salvati was out on bail in August 2019, his counsel advised me that Mr. Salvati had in fact been held in custody facing the 2018 drug trafficking charges but had been released from jail in error. Upon his arrest in August 2019, Mr. Salvati was restored to pre-trial custody on the 2018 charges.

[21] Monahan J. found Mr. Salvati guilty of the 2018 charges in September 2020. On February 19, 2021, Monahan J. sentenced Mr. Salvati to 5 years in prison.

[22] I ordered a pre-sentence report (“PSR”) for Mr. Salvati following release of my Reasons for Judgment. However, when a probation officer attended at the Toronto East Detention Centre on January 10, 2022, Mr. Salvati refused to meet with her. A second attempt was made to meet with Mr. Salvati which was thwarted by COVID-19 precautions. Despite leaving her phone number and being informed that Mr. Salvati was given phone access to call the probation officer, he did not do so. Accordingly, no recent PSR was prepared. However, a PSR had been prepared in November 2020 for the sentencing before Monahan J., a copy of which was provided to me. I set out below Justice Monahan’s summary of it, at paras. 7 – 14 of his Reasons for Sentence, reported as R. v. Salvati, 2021 ONSC 1284:

[7] Mr. Salvati is 27 years old. He was born in Toronto and raised by his mother. Although his mother worked as a waitress for a couple of years when Mr. Salvati was younger, his mother is not currently employed and relies on social assistance. For most of his childhood, his biological father had limited involvement in his upbringing. However, from time to time Mr. Salvati’s father would come around to the home, and Mr. Salvati was exposed to domestic violence involving his father physically abusing his mother.

[8] Mr. Salvati indicates that he currently has a good relationship with his mother and little to no relationship with his father.

[9] For most of his life, Mr. Salvati has resided in the Eglinton West and Keele neighbourhood. He reports that he was suspended many times while in school due to fights with both students and teachers, in addition to truancy issues. Due to his behavioural issues and academic needs, Mr. Salvati was transferred to an alternative school around grade 9. However, Mr. Salvati stopped attending the alternative school by choice and completed the remainder of his grade 9 and 10 credits while he was in custody. He has no current involvement in educational programming, with his highest level of education being grade 10.

[10] Mr. Salvati reports that his last effort to find employment was about 5 years ago, but that his efforts were interrupted by his involvement with the legal system. According to his mother, about 4 years ago Mr. Salvati suffered a back injury from a police chase he was involved in that ended in a car accident, and since that time he has relied on social assistance for income when in the community. According to Ministry records, Mr. Salvati has been connected to employment support agencies by Probation Services in the past but has often failed to follow through with these contacts.

[11] Mr. Salvati indicated that he has previously been addicted to cocaine and marijuana. He began using marijuana around 13 years of age, experimenting with a friend at school and then using it to relieve stress. At the age of 18 Mr. Salvati began experimenting with cocaine. His cocaine use rapidly increased, to the point where he was using daily depending on how much money he had at the time.

[12] Mr. Salvati has been connected with various forms of substance use counselling in the past. According to Ministry records, he has often failed to follow through on referrals and has never completed any consistent form of counselling for addiction. Mr. Salvati reported that he has been in contact with staff at the Toronto East Detention Centre to inquire about programming that would address drug use. On November 5, 2020, he completed a one-hour life skills session on substance use.

[13] Although Mr. Salvati is still in his twenties, he has an extensive criminal record with a total of 21 entries over the past 12 years. This includes five convictions for drug offenses between 2009 and 2013, two of which involved possession for the purpose of trafficking. Mr. Salvati also has two prior firearms offenses, as well as convictions for assaults, motor vehicle offenses and multiple breaches of community supervision.

[14] The PSR concludes by noting that if Mr. Salvati is to make progress in the community, he will need to address a range of issues including poor coping mechanisms, lack of involvement with educational programming or employment supports, and connections with negative peers. Until he does this and demonstrates the necessary motivation to address these concerns, the author of the PSR is of the view that his risk of further offending is ever present.

[23] Counsel for Mr. Salvati highlighted that Mr. Salvati had a difficult upbringing, with an abusive father who also had a criminal record, and a mother who lives on social assistance. He grew up in an area of the city in which there is a lot of violence. He started using drugs at a young age, first marijuana and then cocaine and, at least initially, he only trafficked in drugs to be able to support his own drug habit.

[24] Prior to the 2018 charges, Mr. Salvati’s convictions for trafficking dated back to 2013, when he received a sentence of 16 months. His previous firearms offences were in 2012, involving the use of an antique firearm for which he received a 60-day sentence after 167 days in pre-trial custody, and in 2015 for an imitation firearm used in a robbery for which he was sentenced to 495 days, or about one year and 4 months. In 2016 he was convicted of assault, for which he served 300 days in pre-trial custody.

[25] I will not review all of Mr. Salvati’s prior convictions, other than to note that he has received custodial terms for other offences, such as assault, breaching court orders and driving offences.

[26] His counsel highlights that Mr. Salvati has a limited record for trafficking and that the starting point for the drug offences should be the 2013 conviction as the sentence imposed by Monahan J. occurred after he committed the offences tried by me, and that he does not have a history of possessing operable firearms.

Mr. Sacco’s circumstances

[27] Mr. Sacco is 31 years old. He was born in Toronto and lives with his parents who immigrated to Canada as children. His older brother also lives in the home. He had a happy childhood and his family is supportive of him, albeit very disappointed in in his behaviour which has caused a great deal of pain to them. There is no history of criminal activity or substance abuse in the family.

[28] Mr. Sacco completed grade 11 and dropped out of high school two credits short of completing grade 12. He apparently did well in school until grade 11 when his marks slipped and behavioural issues emerged. He said he began drinking and smoking marijuana, and also used cocaine.

[29] Mr. Sacco has a youth record for trafficking in 2010 for which he was sentenced to 12 months probation. He also has convictions in 2016 for being unlawfully in a dwelling house and assault – offences he committed with Mr. Salvati relating to a $400 debt to Mr. Sacco - for which he received a 9-month conditional sentence and 27 months probation. In 2017 he was convicted of possession for the purpose of trafficking. He served 12 days in pre-sentence custody and 56 days on weekends, with one year on probation.

[30] Following his arrest on the current charges Mr. Sacoo spent 8 days in custody and was released on house arrest until that was varied in January 2020 to permit him to go to work. His bail was varied again in November 2020 to simply require him to be at home between 11PM and 6AM.

[31] Unlike Mr. Salvati, Mr. Sacco has apparently always complied with his probation and release orders.

[32] He continues to use marijuana daily but has not used cocaine or other illicit substances for about a year and a half. In 2019 he completed a substance abuse counselling program.

[33] Mr. Sacco has been in a romantic relationship for the past 2 years which he credits with helping him turn his life around. Since June 2021 he has been a member of the Labourers International Union of North America (LiUNA), Local 183, and, as of May 2022, was working as a concrete former, usually six days per week, earning $38 per hour. His supervisor described him as quiet and reliable. Mr. Sacco’s mother confirmed that he has not missed a day of work and is happy in his current job. At the time of the sentencing submissions, Mr. Sacco had just accepted an offer from Aecon, the large construction company, to install concrete medians on highways at a higher rate of pay.

[34] Previously, Mr. Sacco has worked for landscaping and moving companies.

[35] According to the PSR, Mr. Sacco shows insight into his prior behaviour, including that he was too trusting of the “wrong crowd.” He realizes he has had a history of making poor decisions regarding peer associations, and has demonstrated remorse for his prior conduct.

Positions of the parties

[36] The Crown seeks a total sentence for Mr. Salvati in the range of 11-13 years. Crown counsel submits that the firearms and assault offences merit a sentence in the range of 8-10 years. He also argues for 2 years or more for the drug offence and at least 1 year for the driving offences. The Crown submits Mr. Salvati should receive no credit for pre-sentence custody.

[37] Counsel for Mr. Salvati submits an appropriate total sentence should be in the range of 7 years and 4 months, less some pre-sentence credits. He argues that the gun offences merit a 5-year term, there should be one and a half years for the drug offence, 6 months for the driving offences, and 4 months for the breaches of probation.

[38] Regarding Mr. Sacco, the Crown seeks a total sentence of 12 months for the conviction under s. 94(2) of the Criminal Code and a fine for the small amount of cocaine he possessed. Counsel for Mr. Sacco submits he should receive a conditional sentence.

Applicable sentencing principles

[39] Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(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 or to the community.

[40] Sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. I must also take into account aggravating and mitigating circumstances, including those set out in s. 718.2 of the Criminal Code. Section 718.2 also directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Judges must also exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh”, especially when ordering consecutive sentences.

[41] As the charges in this case involve a firearm, I must give considerable weight to the need for denunciation and deterrence. Armstrong J.A. stated in R. v. Danvers, 2005 30044 (ON CA) at para. 78:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

[42] Similarly, in R. v. Brown, 2010 ONCA 745, the Court of Appeal stated at para. 14:

Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

[43] As Code J. stated more recently, in R. v. Graham, 2018 ONSC 6817 at para. 36: “it is settled law that denunciation, deterrence and protection of the public are the predominant sentencing objectives because of the prevalence and the great danger posed by loaded handguns in this city (or handguns with readily accessible ammunition).”

[44] Similarly, drug trafficking is a serious offence, especially when it involves addictive drugs such as cocaine which cause significant direct and indirect damage to users, their families, and to the safety and security of society. Cocaine trafficking is also associated with violence. As Doherty J.A. stated in R. v. Hamilton, 2004 5549 at para. 104:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences.

[45] Another issue that arises is whether sentences should be consecutive or concurrent. Where offences are separate and distinct, or affect different legal interests, they may attract consecutive sentences: R. v. Gillis, 2009 ONCA 312 at para. 9. Similarly, the weight of authority is that breaches of probation and prohibition orders should also be consecutive to other offences in order to emphasize the importance of court orders: R. v. Lambert, 2011 ONSC 3906, at paras. 63 -69. I recognize that in R. v. McCue, 2012 ONCA 773 at para. 22, the Court of Appeal was critical of a judge for imposing a consecutive sentence and treating the breach of a prohibition order as an aggravating factor; however, the Court nevertheless upheld a consecutive sentence. While I list below Mr. Salvati’s disrespect for court orders as an aggravating circumstance, I have not considered the breach of court orders in determining appropriate sentences on the substantive charges.

[46] Also clearly engaged in this case is the totality principle which requires consideration of whether the aggregate sentence is “just and appropriate” as “the combined sentence should not be unduly long or harsh”: R. v. Parry, 2012 ONCA 171 at para. 17; Criminal Code, s. 718.2(c).

Aggravating and mitigating circumstances – Salvati

[47] There are many aggravating factors in Mr. Salvati’s case. He has a lengthy and continuous criminal record. After today he will have almost 80 convictions for a broad range of offences, many of which endanger society. He shows no respect for court orders and despite many assurances given to courts on prior occasions that he would reform his ways, the transcripts of which were provided to me, he has not done so. To the contrary.

[48] The offences for which I have entered convictions include crimes of violence, including against a domestic partner, threats to public safety with possession of a loaded firearm, and drug trafficking. They are very serious.

[49] There is no evidence that Mr. Salvati has any remorse for his actions, nor has he taken any meaningful steps, aside from completing some high school courses, to find a way to improve his circumstances.

[50] On the other hand, Mr. Salvati is still a relatively young man, who has some support from his mother. He grew up in difficult circumstances and lacked good role models. As Monahan J. commented at para. 24 of his Reasons for Sentence, however, Mr. Salvati’s “potential for rehabilitation appears relatively limited at this time.”

Aggravating and mitigating circumstances - Sacco

[51] Mr. Sacco has a criminal record which is an aggravating factor. That some of his prior offences include crimes he committed with Mr. Salvati is also aggravating as it suggests Mr. Sacco did not learn his lesson to disassociate himself with Mr. Salvati earlier.

[52] The offence of being in a vehicle knowing that there is a firearm carries with it a sentence of up to 10 years in jail. It is a very serious offence.

[53] On the other hand, the record is limited and somewhat dated. Further, he has complied with all court orders over the years, including his strict bail conditions over the past 3 years.

[54] A significant mitigating factor is that Mr. Sacco appears to have turned his life around since these charges were laid. He has been employed in a good, well-paying job and by all accounts is responsible employee. Mr. Sacco has strong family support, is amenable to their supervision, and is in a committed relationship. He has shown remorse and takes responsibility for his actions. His prospect for rehabilitation are good.

Analysis and appropriate sentences

Salvati

[55] The Court of Appeal has held that 3 to 5 years is the appropriate range for a first s. 95 offence where the use and possession of the gun is associated with criminal conduct: see R. v. Marshall, (2015) 2015 ONCA 692, 340 O.A.C. 201 (C.A.) and R. v. Gobire, March 7, 2016, Ontario Court of Appeal, discussed by Code J. in R. v. Graham at para. 38.

[56] Where an accused is a repeat offender, and/or has breached prohibition orders the range increases: see Graham at para. 39. The Crown relies on the decisions in R. v. McIntosh, 2016 ONCA 370, and R. v. Reesor, 2019 ONCA 901, in which the Court of Appeal upheld lengthy terms totalling 9 and 7 years respectively for possessing and pointing firearms where the accused were repeat offenders.

[57] Mr. Salvati possessed and used a firearm in committing the offence of pointing it at Ms. Ricketts to terrorize her. This was also an assault with a weapon which has a maximum penalty of 10 years. Ms. Ricketts was a girlfriend or former girlfriend of Mr. Salvati which is an aggravating factor. The gun was loaded when found a day or two later. Mr. Salvati has a prior record for gun use and breached orders prohibiting him from possessing firearms. These factors all favour a sentence on the firearms and charges in relation to the events involving Ms. Ricketts of over 5 years.

[58] Mr. Salvati’s counsel argued that the “jump principle”- that sequential sentences should not jump in relative severity - should apply to prevent a large increase in his sentence from Mr. Salvati’s previous firearms offences. However, having regard to Mr. Salvati’s lengthy criminal record which includes weapons offences, breach of prohibition orders and crimes of violence, in my view the jump principle is of limited application: see R. v. Reid, 2013 ONSC 2342 at para. 80.

[59] Accordingly, on the firearms offences on which I have entered convictions against Mr. Salvati, I conclude that the appropriate sentences are as follows:

• Count 1 – s. 87(2)(a), pointing a firearm – 4 years, concurrent to Count 3

• Count 2 - s. 264.1(2)(a), uttering threats – 1 year, concurrent to Count 3

• Count 3 – s. 267(a), assault with a weapon – 6 years

• Count 6 – s. 733.1(1)(a), possession in breach of probation – 1 year, consecutive to Count 3

• Count 11 – s. 733.1(1)(a), fail to comply with probation – 1 year, consecutive to Count 3 but concurrent to Count 6

• Count 12 – s. 733.1(1)(a), fail to comply with probation – 1 year, consecutive to Count 3 but concurrent to Count 6

• Count 13 – s. 86(3)(a), possession without reasonable precautions - 1 year, concurrent to Count 3

• Count 16 – s. 92(3), possession without a licence - 2 years concurrent to Count 3

• Count 19 – s. 94(2)(a), present in a motor vehicle with a prohibited firearm - 2 years, concurrent to Count 3

• Count 20 – s. 95(2)(a), possession of a loaded prohibited firearm – 6 years, concurrent to Count 3

• Count 21 – s. 117.01(3)(a), possession while prohibited under a s. 109 Order - 1 year, consecutive to Count 3 but concurrent to Count 6

• Count 22 – s. 117.01(3)(a), possession while prohibited under a s. 110 Order - 1 year, consecutive to Count 3 but concurrent to Count 6.

[60] The effect of the sentences stated above is to result in a total sentence of 7 years for those offences – 6 years for the possession of the loaded firearm and its use in assaulting and pointing it, and an additional year for the breaches of court orders which ought to be consecutive, as discussed above.

[61] Turning to the drug offence, in R. v. Graham Code J. observed at para. 47 that the “ranges of sentence for cocaine trafficking offences depend to some significant degree on the level in the drug trade hierarchy at which the case is situated.” First offenders with small amounts may see sentences under 2 years, while mid-level offenders receive sentences in the 2 - 5 year range. Large dealers get longer terms.

[62] In this case, I agree with the Crown that, having regard to Mr. Salvati’s record and the nature of his conduct he should be treated as a mid-level offender. He has previous convictions for drug trafficking, the amount was not large, but large enough to support a finding of guilt for possession for the purpose of trafficking. I do not rely on the drug trafficking sentences imposed by Monahan J. after these offences were committed. However, in light of Mr. Salvati’s prior sentence for trafficking in 2013 (7 months, plus 9 months pre-trial custody, plus 2 years probation) in my view a sentence of 2 years does not violate the “jump principle” and is fit and just in all the circumstances.

[63] Accordingly, I sentence Mr. Salvati to 2 years on Count 35, possession for the purpose of trafficking. As this offence is quite different from the firearms offences, the 2 year sentence shall be consecutive to the 7 years to which I have sentenced Mr. Salvati on the firearms offences.

[64] This leaves the driving offences: Count 7 (breaching a probation order that he not occupy the driver’s seat of a motor vehicle) and Count 8 (driving while prohibited from doing so). Each of these offences involves a breach of prior orders specifically prohibiting Mr. Salvati from driving a car. He has prior convictions for leading police on high speed chases, and while he was acquitted of doing so in this case, he has been repeatedly told not to drive a car.

[65] In these circumstances, I sentence him to 1 year on each of Counts 7 and 8, concurrent to one another, but consecutive to the firearms and drug offences.

[66] Accordingly, I sentence Mr. Salvati to 7 years on the firearms-related offences, plus 2 years on the drug trafficking offence, plus 1 year on the driving offences. This results in a total sentence of 10 years. Having regard to all the circumstances, including aggravating and mitigating factors, and considering the totality principle that “the combined sentence should not be unduly long or harsh”, in my view 10 years is just and appropriate.

Credit for pre-sentence custody

[67] As Mr. Salvati was serving another sentence while awaiting trial and sentencing on the current charges, the Crown submits that Mr. Salvati is not entitled to any pre-sentence credit for time served. However, as counsel for Mr. Salvati points out, in order to attend the trial, Mr. Salvati was transferred from a penitentiary to a detention centre in Toronto on November 5, 2021, where he has remained pending disposition of this matter. It is generally accepted that penitentiaries provide better conditions, with access to programming. Further, the Court of Appeal has recognized that one may receive credit due to ongoing charges when one would otherwise be in a penitentiary: R. v. Wilson, 2008 ONCA 510.

[68] In this case, Mr. Salvati’s counsel seeks limited credits arising from his detention during these proceedings over the past 7 months. He points out that on several nights Mr. Salvati was triple-bunked, that his average time outside was half that of others, and that he was subject to lockdowns which severely limited his time outside his cell on approximately 63 days. He also seeks a “COVID credit” of 0.25 days for each day he has been in the detention centre, or approximately 30 days, for a total credit of 92 days.

[69] In response, Crown counsel submits that there is no evidence Mr. Salvati would not have been in similar circumstances in the penitentiary, where he had been incarcerated from February to November 2021. There is no evidence of lockdowns there, or of the impact of COVID in the penitentiaries. COVID almost certainly had some impact there, as it had impact everywhere, and especially in congregant living situations. There is also no evidence that Mr. Salvati took advantage of any programming available to him at the penitentiary.

[70] The Crown cites R. v. Francis, 2006 CarswellOnt 1969 (ONCA), and R. v. Thomas, [1995] O.J. No. 4112 (Gen. Div.), to support the proposition that no pre-trial or pre-sentence credit should be awarded when an accused is already serving a sentence on another matter. However, those decisions must be considered in light of R. v. Wilson, cited above, and in light of the circumstances of each case.

[71] I am prepared to accept that Mr. Salvati suffered somewhat harsher conditions over the past 7 months than he would have if he had been in the penitentiary, and that he should receive some limited credit for it.

[72] In his Reasons for Sentence in 2021, Monahan J. observed at para. 36 that “there is no precise formula for granting enhanced credit for onerous conditions of incarceration”, and went on to give Mr. Salvati an additional half day of credit for each day of lockdown and an additional 0.25 days reflecting the more restrictive conditions due to COVID.

[73] While it may seem to be rough justice, I follow the approach of Monahan J. to award Mr. Salvati credit for a half-day for each day of lockdown. This results in a credit of 32 days. As he likely would have been subjected to restrictions due to COVID in a penitentiary, credit for that is more difficult to justify; however, as conditions due to COVID were likely even worse in detention centres, I am prepared to give Mr. Salvati an additional 15 days of “COVID credit”, which is half the rate adopted by Monahan J. This results in total credits of 47 days.

Ancillary Orders

[74] Ancillary orders shall also be made against Mr. Salvati, as follows:

• He shall provide a sample of his bodily substances as may be required for forensic DNA analysis pursuant to the Criminal Code;

• Pursuant to s. 109 of the Criminal Code, he shall be prohibited from possession of a weapon, ammunition or other items as described therein for the rest of his life;

• The firearm and drugs seized shall be forfeited.

Sacco

[75] Mr. Sacco is a different story. He does not have a lengthy criminal record and appears to have turned his life around in the 3 years since the offences were committed. He has only been convicted of 2 offences by me: possession of a small amount of cocaine and of being an occupant in a vehicle in which there was a firearm. He has been compliant with strict bail conditions, which have been subject to a number of checks by the police.

[76] Crown counsel notes that there are very few cases in which the only firearms conviction is under s. 94(2). Most also include other offences.

[77] The Crown relies on the decision of Monahan J. in R. v. Yusuf and Ahmed, 2020 ONSC 5524, where Mr. Ahmed was sentenced to 18 months for breaching s. 94(2). It was his first offence, and he was 21 years old. On the other hand, the case involved Mr. Ahmed driving while his passenger, who possessed the gun, engaged in gunfire with others. Unlike Mr. Sacco, Mr. Ahmed had limited rehabilitative prospects and showed a lack of remorse.

[78] Counsel for Mr. Sacco relies on two cases: R. v. Hassan, 2017 ONSC 4570, and R. v. Blagdon, 2013 NSPC 93.

[79] In Hassan, the accused was found with a firearm and ammunition on his person when stopped by police while driving. He had a “minimal” criminal record, been on bail for 3 years without incident, was youthful at the time of the offence and had a supportive family and a wider support group. He received a highly favourable pre-sentence report and had taken “exemplary steps to rehabilitate himself since his arrest” (paras. 48-53). In imposing a conditional sentence, Backhouse J. took into account the seriousness of the offence and the need for denunciation and deterrence of firearms offences, but she also considered Hassan’s remorse, the changes he had made in his life since the charges were laid, and that he was amenable to supervision (para. 71).

[80] In Blagdon, the accused was, like in Hassan, also convicted of possessing the firearm. Prior to being pulled over, Blagdon’s companion had used the gun to try to shoot someone while with Blagdon. The loaded gun was found in the glove compartment of the car.

[81] Blagdon involved a 29-year old offender who had a positive pre-sentence report. He was employed and was described as “good worker.” He wished to return to school and train to be a chef. He had 3 prior convictions, one for breaking and entering, another for refusing a breathalyzer demand and, later, for driving while disqualified, for which he was sentenced to 14 days in jail. His periods of probation and while on bail were without incident, including compliance with strict terms of release. Derrick J., as she then was, acknowledged the seriousness of the offences involving a “loaded handgun in an accessible location”, but stated at para. 43:

…even so, I am satisfied that actual incarceration is not necessary to achieve a proportionate sentence that is consistent with the fundamental purpose and principles of sentencing. Both punitive and restorative sentencing objectives can be achieved without sending Mr. Blagdon to jail. Onerous restrictions on Mr. Blagdon’s liberty, in the form of house arrest conditions under a conditional sentence will represent denunciation and the terms of his sentence, which will become well known within his circle of friends and acquaintances, can serve the goals of general deterrence. The general public will become aware of this sentence, to the extent attention is paid to any reporting of it, and anyone who thinks a conditional sentence under strict house arrest is a lenient sentence should try it out. There is no parole and no sentence remission for offenders serving conditional sentences. And breaching a condition will result in arrest and probable incarceration for the remainder of the sentence.

[82] Derrick J. referred to the Supreme Court’s decision in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, that a conditional sentence can only be imposed if the accused receives a sentence of less than 2 years and only when the sentence “would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.” As the Supreme Court stated in Proulx at paras. 21 and 22:

21… The offenders who meet the criteria of s. 742.1 [the conditional sentencing provisions of the Criminal Code] will serve a sentence under strict surveillance in the community instead of going to prison. These offenders' liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation…

[83] In my view, a conditional sentence is appropriate here. Mr. Sacco has taken very positive steps to change his life since the offences were committed almost 3 years ago. His prospects for rehabilitation are good. He has strong support from his family. He has demonstrated his willingness and the ability to comply with court-ordered supervision. He is not a danger to the community and has now recognized that he should not be associating with Mr. Salvati or others who engage in criminal activity. In these circumstances, sending Mr. Sacco to jail is not necessary to specifically deter him from engaging in criminal activity in the future, and may be counterproductive. Rather, as stated in Blagdon at para. 45, “a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, a promotion of a sense of responsibility in Mr. [Sacco], and an acknowledgement of the harm done to the community.”

[84] If Mr. Sacco violates the conditions of his sentence he is aware that he will be arrested and may serve the rest of his sentence in jail.

[85] It should be emphasized that a conditional sentence is not a lenient one. It is punitive and imposes strict limitations on Mr. Sacco. It is a sentence of imprisonment and carries that stigma.

[86] Accordingly, on the charge under s. 94(2) of the Criminal Code I sentence Mr. Sacco to a term of 18 months imprisonment, to be served in the community. In addition to the statutory conditions in section 742.3 of the Criminal Code, Mr. Sacco’s ability to leave home should be restricted. While Mr. Sacco’s bail was relaxed to only impose a curfew, that was prior to his conviction when he enjoyed the presumption of innocence. I will hear submissions on when, beyond for the purposes of employment or essential appointments, Mr. Sacco should be permitted to leave his home.

[87] With respect to the drug charge, I sentence Mr. Sacco to 30 days in prison, to be served in the community concurrently with the firearms sentence, and subject to the same conditions.

[88] Pursuant to s. 109 of the Criminal Code, Mr. Sacco shall also be prohibited from possessing a weapon, ammunition or other items as described therein for 10 years.

Paul B. Schabas J.

Released: June 20, 2022

COURT FILE NO.:CR-20-50000340-0000

DATE: 20220620

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GIANLUCA SALVATI & PAOLO JUNIOR SACCO

SENTENCING REASONS

Schabas J.

Released: June 20, 2022

R. v. Salvati & Sacco, 2022 ONSC 3610

Case Summary

Introduction

The “Kienapple” issues

Mr. Salvati’s Circumstances

Mr. Sacco’s circumstances

Positions of the parties

Applicable sentencing principles

Aggravating and mitigating circumstances – Salvati

Aggravating and mitigating circumstances - Sacco

Analysis and appropriate sentences

Salvati

Credit for pre-sentence custody

Ancillary Orders

Sacco

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 1