COURT FILE NO.: CR-19-5255

DATE: 20220623

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRIAN MUSA

Defendant

Avik Ghosh, for the Crown

Jacob Stilman, for the Defendant

HEARD: December 8, 2021; February 14, 16, 2022; April 8, 2022; June 13, 2022

REASONS FOR SENTENCE

CHARNEY J.:

Introduction

[1] On November 16, 2021, Brian Musa was convicted of possession of cocaine, methamphetamine, and fentanyl for the purposes of trafficking, and possession of a loaded prohibited firearm.

Circumstances of the Offence

[2] The details of the offence are set out in my decision in relation to the Charter application, reported at R. v. Musa, 2021 ONSC 2615. In that decision I dismissed Mr. Musa’s application alleging an infringement of his rights under ss. 8, 9, 10(a) and 10(b) of the Charter.

[3] Briefly, the parties have agreed to the following Agreed Statement of Facts:

1. In June 2019 York Regional Police began a drug investigation into Brian Musa. During this investigation police observed Mr. Musa engaging in multiple suspected drug transactions in the City of Toronto and the City of Vaughan.

2. On June 18, 2019 at 3:52 p.m., police again observed Mr. Musa conduct a suspected drug transaction in the area of Finch Avenue and Albion Road in Toronto.

3. Later in the day at 5:27 p.m., police followed Mr. Musa’s vehicle to Forest Fountain Drive, a residential street in Vaughan. Mr. Musa parked his car on Forest Fountain Drive. While parked along the curb a male approached Mr. Musa’s car and entered the front passenger seat. At 5:28 p.m. the police attended the area and arrested Mr. Musa.

4. In total, after searching Mr. Musa’s vehicle incident to arrest, police seized:

i. A Glock 40 calibre handgun with a loaded magazine with 13 rounds plus a round in the chamber totaling 14 rounds of ammunition

ii. 130 grams of fentanyl

iii. 36 grams of crack cocaine

iv. 39 grams of methamphetamine

v. 59 grams of cocaine

vi. A small quantity of oxycodone pills

vii. 4 mobile telephones

viii. A digital scale

ix. $13,272 cash

5. At the time Mr. Musa was bound by a Toronto recognizance for robbery with firearm, point firearm, weapons dangerous, assault with a weapon, assault cause bodily harm with a condition “not to possess a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.”

[4] The handgun seized is identified as a prohibited firearm, and the cartridge is identified as a prohibited device (a cartridge magazine capable of containing more than ten cartridges).

[5] While Mr. Musa pled not guilty to all charges, the case for the Crown depended on the admissibility of the evidence sought to be excluded. When the evidence was admitted, the accused adduced no evidence and accepted the case for the Crown, and a finding of guilt on the charges not withdrawn by the Crown was made. Because he pled not guilty, Mr. Musa preserved the right to challenge the evidentiary ruling on appeal: R. v. Anderson, 2021 ONCA 333, at para. 53.

[6] The Crown withdrew Counts 1, 5, 6 and 15, and Mr. Musa was found guilty of Counts 2, 3, 4, 7, 8, 9, 10, 11, 12, 13 and 14.

[7] The Crown agreed that Counts 8, 9, 11 and 13 should be stayed based on the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C. R. 729.

Crown Position

[8] The Crown seeks a global sentence of 11.5 years as follows:

i. Possession of fentanyl for the purposes of trafficking – 9 years

ii. Possession of all other drugs for the purposes of trafficking – 4 years for each count, concurrent

iii. Possession of prohibited firearm – 4 years consecutive

iv. Possession of prohibited devices and other firearms offences – 4 years concurrent

[9] This totals 13 years, and the Crown proposes to reduce the fentanyl sentence and firearms sentence by 9 months each to take into account the totality principle, for a total sentence of 11.5 years.

Defence Position

[10] Defence acknowledges that given the quantity of drugs and the firearm seized, case law requires a significant penitentiary term, but takes the position that given the mitigating factors in this case, particularly Mr. Musa’s young age (20) at the time that he was arrested, and that this is his first penitentiary offence, the appropriate global sentence is in the 6 to 8.5 years range.

Analysis

Possession of Fentanyl

[11] The possession of 130 grams of fentanyl is the most serious of the several counts. The maximum penalty for this offence is life imprisonment: ss. 5(3)(a) and 6(3)(a.1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[12] In R. v. Loor, 2017 ONCA 696, the Ontario Court of Appeal noted, at para. 33:

[F]entanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.

[13] Referencing expert evidence introduced at trial, the Court of Appeal stated, at paras. 37 and 38:

Because fentanyl is so potent it becomes a very dangerous drug when it is not used for therapeutic reasons under medical supervision. Those who have a prescription for it and yet abuse it, or those without a prescription who buy a patch on the street or borrow one from a friend are at risk of toxicity and death.

The effects of fentanyl are why people abuse it. Fentanyl gives people a high, a feeling of well-being, of euphoria. Those who use it for a long time may become addicted. But because fentanyl depresses the central nervous system, it can slow down the way one’s brain functions, decrease one’s heart rate, and slow down one’s breathing. A person who takes enough fentanyl may eventually stop breathing and die.

[14] In Loor the Court of Appeal found, at para. 36, that fentanyl is 100 times more powerful than morphine and 20 times more powerful than heroin. The Court upheld a six year sentence, and concluded, at para. 50:

[G]enerally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[15] In R. v. Parranto, 2021 SCC 46, Justices Brown and Martin, writing for the majority, found, at para. 55, that the Alberta Court of Appeal did not err setting a 9-year starting point for wholesale fentanyl trafficking. The majority stated, at para. 61:

We reiterate that the nine‑year starting point is just “one tool among others that [is] intended to aid trial judges in their work” (Lacasse, at para. 69). Sentencing judges are free to depart from the starting point and move up or down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle of proportionality.

[16] The majority noted, at para. 68, that “[a] more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years.”

[17] The Supreme Court upheld the 10 year and 14 year sentences imposed on the two accused by the Alberta Court of Appeal, noting that the fentanyl in that case was destined for remote northern communities in Nunavut, and that, at para. 71, “trafficking fentanyl to vulnerable northern communities has been found to be an aggravating factor”.

[18] Justice Moldaver’s concurring opinion is also relevant. He emphasized, at para. 86, “the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties, ranging from mid‑level double digit penitentiary terms up to and including life imprisonment, for those who do so”.

[19] Justice Moldaver’s decision sets out in detail the dangers posed by largescale fentanyl trafficking, at paras. 93 – 98, concluding at para. 98:

The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society. In many ways, “[t]rafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today” (R. v. Frazer, 2017 ABPC 116, 58 Alta. L.R. (6th) 185, at para. 11). Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society.

[20] Parranto dealt with wholesale fentanyl trafficking. The Crown in our case acknowledges that Mr. Musa is more appropriately described as a mid-level street trafficker. Given the number and quantity of the various drugs seized, and the specific circumstances relating to his arrest, I accept this classification as accurate.

[21] Most recently the Ontario Court of Appeal specifically dealt with the range of sentences for a mid-level fentanyl trafficker in R. v. Lynch, 2022 ONCA 109. The Court stated, at para. 15:

It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested, 39854.

[22] The Court further stated, at para. 18:

Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent’s level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.

[23] In Lynch, the Court of Appeal substituted the trial judge’s four year sentence with a six year sentence, noting that the accused had pled guilty, and was relatively young (29 years of age).

[24] The Crown also relies on R. v. Sidhu, 2019 ONCA 880, where the Court of Appeal upheld a net sentence of eight years and two months for a 25 year old offender who trafficked in fentanyl, had a prior, related record, and returned to trafficking shortly after being released from custody. The quantity of fentanyl in Sidhu was 89 grams.

[25] In R. v. Disher, 2020 ONCA 710, the Court of Appeal allowed an appeal and reduced the sentence of Mr. Disher, also a mid-level trafficker (quantity 42.6 grams of drugs including fentanyl), with numerous drug trafficking convictions, to eight years. The Court stated, at para. 36:

Lower court cases are also consistent with a sentence of eight years. See, for example, R. v. Baldwin, [2018] O.J. No. 2447 (C.J.) (eight years; quantity of fentanyl was 115.09 grams); R. v. Shevalier, [2017] O.J. No. 7247 (C.J.) (eight years; quantity of fentanyl was 28.13 grams). While the Crown pointed to R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027, where the offender was sentenced to 12 years less pre-trial custody, I do not see it as particularly helpful because the offender in Vezina had 204.49 grams of a blend of heroin and fentanyl for the purposes of trafficking – approximately five times the amount Mr. Disher possessed.

[26] See also: R. v. Ansah, 2021 ONSC 6339, imposing a global 6 year sentence for a 21 year old first-time offender for possessing a loaded firearm and 85 grams of fentanyl for the purposes of trafficking. Baltman J. imposed 3 years for possession of the loaded firearm plus 5 years for possession of fentanyl for the purposes of trafficking, each sentence reduced by one year to reflect the totality principle, for a total of 6 years.

[27] In the present case, the quantity of fentanyl – 130 grams – is significantly more than Sidhu, Disher and Shevalier, and Ansah, but less than the amount in Vezina.

[28] Finally, the Crown relies on R. v. Schramek, 2021 ONSC 436, where the 37 year old accused with no criminal record pled guilty and was convicted of possession of 156.7 grams of fentanyl in addition to other drugs. Bondy J. reviewed a number of appellate and trial level decisions (see paras. 77 – 96). Placing significant reliance on the Court of Appeal decisions in Sidhu and Disher, he found that a sentence of 7.5 years was appropriate for the fentanyl related charges.

Possession of a Loaded Prohibited Firearm

[29] There are a multitude of cases describing the gravity of gun crimes and the particular danger posed by a loaded handgun in a public place. A recent decision is the Ontario Court of Appeal’s decision in R. v. Morris, 2021 ONCA 680, where the Court stated, at para. 71:

Apart from the specific provisions in the Criminal Code, Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category. McLachlin C.J., in Nur (SCC), at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95: see also Nur (ONCA), at para. 206; R. v. Mansingh, 2017 ONCA 68, at para. 24; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.

[30] The following analysis by Campbell J. in R. v. St. Clair, 2018 ONSC 7028, at para. 47 is representative of the current judicial approach to possession of a loaded handgun:

The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. Often, as illustrated by the facts in the present case, individuals engaged in the business of drug-trafficking have loaded firearms as one of the tools of their illicit trade. In any event, the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. Some of the authorities in support of this position are collected in R. v. Mark, 2018 ONSC 447, at para. 24.

[31] The firearm-related offence in the present case is an offence at the true crime end of the s. 95 spectrum of offences. Mr. Musa’s unlawful possession of a fully loaded prohibited handgun with an over capacity magazine with 13 rounds plus a round in the chamber totaling 14 rounds of ammunition is a very serious criminal offence, which created a very substantial public safety risk.

[32] The combination of trafficking in fentanyl – the most dangerous of drugs even in the smallest of quantities – and the possession of a loaded overcapacity hand gun, poses the greatest threat of death and risk to public safety. This lethal combination requires the strongest judicial condemnation.

[33] The Crown relies on the Court of Appeal decision in R. v. Marshall, 2015 ONCA 692, where the Court of Appeal upheld a 3.5 year sentence for possession of a loaded prohibited firearm by a 23 year old accused with no criminal record. The Court stated, at para. 47:

[O]ffenders who engage in s. 95 offences at the “true crime end of the s. 95 spectrum of offences” should continue to receive exemplary sentences that emphasize deterrence and denunciation. Nur provides, at para. 206, that: “[i]ndividuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others” will still attract such sentences, regardless of the constitutionality of the three-year minimum penalty.

[34] The Court of Appeal also stated, at paras. 55-56:

I note that in Nur, both this court and the Supreme Court upheld a sentence of 40 months in prison for a 19-year old first offender who had pleaded guilty at trial and was found to have had good rehabilitative prospects.

Finally, the sentence imposed is well within the range of sentences upheld by this court for weapons offences committed in association with drug crimes. The statutory mandatory minimum sentence aside, I regard the appellant’s three and one-half year sentence of imprisonment for his firearm conviction as entirely fit.

Sentencing Principles

[35] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. The following objectives must be considered in forming a just sanction:

(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.

[36] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.

[37] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code.

[38] It is well established that the paramount principles of sentencing with respect to the commercial trafficking of illicit drugs and the possession of prohibited firearms are denunciation and general deterrence. At the same time, it is incumbent upon the court to consider all of the principles of sentencing contained in s. 718 of the Criminal Code, including rehabilitation (Disher, at para. 27).

[39] Also relevant is s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, which adds the following:

10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[40] The Court must impose a sentence that appropriately denounces Mr. Musa’s conduct and deters others from following suit, but the sentence must not ignore nor lose sight of Mr. Musa’s potential for rehabilitation.

[41] In my view, the trafficking offences and the firearms offences require consecutive sentences. While the two types of offences are often associated, they are entirely separate offences based on separate public policy interests, and each requires separate punishment: R. v. Graham, 2018 ONSC 6817, at para. 43; R. v. Crevier, 2013 ONSC 2630, aff’d (2015), 2015 ONCA 619, at paras. 128-129; R. v. Ansah, 2021 ONSC 6339, at para. 58.

Aggravating and Mitigating Factors

[42] In the present case the Crown points to the following aggravating factors:

a. The drug trafficking was associated with the possession of a loaded prohibited firearm. Our courts have repeatedly stated that the “toxic combination” of drug and gun offences require a significant jail term: R. v. Wong, 2012 ONCA 767, at paras. 11-12.

b. While I may take this aggravating factor into account (R. v. Crevier, 2015 ONCA 619, at paras. 128-130), since the firearm offence will attract a consecutive sentence, I must take this into consideration when I address the totality principle: Crevier, at para. 130; Ansah, at para. 59.

c. Mr. Musa was on bail at the time that he committed this offence. One of the terms of his recognizance was that he was prohibited from possessing a firearm.

d. While Mr. Musa did not have a criminal record at the time of this offence (June 2019), he was convicted in October, 2019 of Assault Causing Bodily Harm, for an offence committed in 2017 and was sentenced to two months in jail plus one year probation, as well as a s. 109 mandatory weapons prohibition.

e. The number and quantity of drugs seized indicates that this crime was motivated by greed and the potential for profit. Mr. Musa is not a drug user himself and therefore became involved with fentanyl purely for financial gain.

f. The drug transactions occurred in a public place, on a residential street near a public park.

g. Mr. Musa’s offence required planning and deliberation. He collected significant quantities of a variety of drugs and a loaded firearm to conduct his business.

[43] The primary mitigating factor is Mr. Musa’s age. He was 20 years of age at the time of the offence.

[44] While Mr. Musa is not a first time offender, and this is not his first jail sentence, this will be his first penitentiary sentence. As the Ontario Court of Appeal noted in R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] 168 O.A.C. 317, at para. 36:

Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

[45] Other than Mr. Musa’s age, I have received little additional information about his rehabilitative prospects. There was no pre-sentence report filed. Mr. Musa was released under strict bail conditions in May 2020, and has apparently complied with the conditions of his bail since that time, which suggests some potential for rehabilitation.

[46] Counsel for Mr. Musa did point to a hospital record dating from February 23, 2017, some 2.5 years before the offence was committed. This record indicates that Mr. Musa was admitted to the hospital for “substance misuse/intoxication”. The report indicated that Mr. Musa was found unconscious after getting into a taxicab. He denied taking drugs or alcohol. The record describes Mr. Musa as intoxicated and aggressive. The hospital record is mostly illegible, and without a doctor to explain the significance of the various results, it was not helpful in assessing Mr. Musa’s medical status, either when the offence was committed or today.

[47] Mr. Musa did not plead guilty, although he did not contest the facts in his trial once his Charter application was dismissed. This was intended to preserve Mr. Musa’s right of appeal with respect to the Charter ruling. This resulted in some saving of court time, but is not, in my view, the equivalent of a guilty plea for the purposes of sentencing. A guilty plea might demonstrate remorse, and an acceptance of responsibility, both of which are mitigating factors. While the process chosen by Mr. Musa “cannot in any way be an aggravating feature, in the circumstances of this case, it has no “mitigating” aspect”: Ansah, at para. 55.

“Duncan” credit for custody conditions

[48] It is undisputed that Mr. Musa’s pre-trial custody that will be credited to these charges included 31 days of full lockdown (6 hours or more) and 6 days of partial lockdown (less than 6 hours).

[49] In the recent decision of R. v. Marshall, 2021 ONCA 344, the Court of Appeal stipulated that the Duncan credit is not deducted from the base sentence. Although the court noted, at para. 49, that the very restrictive conditions in jails and the health risks of COVID-19 are the kinds of circumstances that may give rise to a Duncan credit, these circumstances are a mitigating feature that is factored in when determining the base sentence and cannot dominate the analysis so as to result in an inappropriate sentence. The court states at paras. 52-53:

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

[50] In R. v. Bristol, 2021 ONCA 599, at para. 12, the Court of Appeal reiterated that the Duncan credit is not a deduction but rather a factor to consider in sentencing. Consequently, while I accept that the lockdown conditions during the pandemic have resulted in harsher than usual conditions for Mr. Musa, I decline to assign this factor a specific mathematical deduction and will instead consider it as one of the mitigating features to be factored into the determination of a proper sentence for these offences.

[51] Both the Crown and defence counsel have indicated that they have taken this into account in calculating their proposed total sentence.

Conclusion

[52] Taking these principles into consideration, and putting aside issues of the totality principle, I would impose an 8 year sentence for the possession of fentanyl for the purposes of trafficking, and a 3.5 year sentence for the possession of a prohibited loaded firearm. All other sentences will run concurrently. This would result in a total sentence of 11.5 years.

[53] I would reduce the sentence for possession of fentanyl for the purposes of trafficking by 12 months, and the sentence for possession of a loaded prohibited firearm by 9 months, for a total reduction of 21 months, to reflect the totality principle. This will result in a total sentence of 9 ¾ years, or 117 months.

[54] Crown counsel has calculated that the total pre-trial custody credit is 8 months and 2 days, and the total Downes credit (based on 1/3 of time under house arrest bail conditions) is 8 months and 1 week, for a total credit of 16 months and 9 days, to be credited to the total time served. I accept the Crown’s calculations in this regard. I was not provided with any information regarding the impact of the bail conditions on Mr. Musa.

[55] In conclusion, the sentences imposed are as follows:

(a) Count 2 - (possession of Cocaine for the purposes of trafficking) – 4 years concurrent;

(b) Count 3 - (possession of Cocaine (crack) for the purposes of trafficking) – 4 years concurrent;

(c) Count 4 - (possession of methamphetamine for the purposes of trafficking) – 4 years concurrent;

(d) Count 7 - (possession of fentanyl for the purposes of trafficking) – 7 years consecutive (I have reduced the 8 year sentence to 7 years for reasons of the totality principle);

(e) Count 8 – stayed;

(f) Count 9 – stayed;

(g) Count 10 – (prohibited firearm in motor vehicle) – 33 months, concurrent;

(h) Count 11 – stayed;

(i) Count 12 – (possession of a loaded firearm) - 33 months, consecutive (I have reduced the 42 month sentence to 33 months for reasons of the totality principle);

(j) Count 13 – stayed;

(k) Count 14 – (possession of a prohibited device) – 33 months, concurrent;

(l) Pre-trial custody and Downes credit of 16 months and 9 days;

(m) Three ancillary orders are granted: a mandatory lifetime s. 109 order prohibiting weapons; a DNA order; and forfeiture of seized property (cash, dugs, mobile phones, digital scale, firearms and ammunition).

[56] Mr. Musa, you are still quite young. When you are eventually released from custody, you will have to decide whether to turn your life around and be a productive member of society, or continue to be a drug dealer. If you end up before the courts again on similar charges in the future, you can expect a much longer penitentiary sentence. I hope you make the right choice.

Justice R.E. Charney

Released: June 23, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BRIAN MUSA

Defendant

REASONS FOR SENTENCE

Justice R.E. Charney

Released: June 23, 2022