COURT FILE NO.: CR-20-00000895
DATE: 2022-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANOSHIRVAN SHIRIZADEH
Defendant
Counsel: Ms. M. Rumble, for the Crown Ms. M. Wyszomierska, for the Defendant
HEARD: April 24 and June 3, 2022
REASONS FOR SENTENCE
m.k. fuerst J.:
Introduction
[1] After engaging in a broad daylight shoot-out with a uniformed police officer at a busy Richmond Hill gas station, Anoshirvan Shirizadeh sped home. He barricaded himself in his residence, and for the next ten hours, held the police at bay.
[2] Almost two dozen Emergency Response Unit police officers surrounded the house on foot and with vehicles. Special equipment, including an armoured vehicle and a police helicopter, were deployed. Neighbours were evacuated from their homes.
[3] Officers eventually rammed the front door and fired gas projectiles into Mr. Shirizadeh’s house. Mr. Shirizadeh responded with gunfire from upstairs windows. He hit a neighbour’s house and vehicles.
[4] Remarkably, no-one was injured during the events, which ended with Mr. Shirizadeh’s surrender.
[5] The subsequent police search of the home revealed that it contained an arsenal of weaponry. Firearms, ammunition, homemade bombs, explosives, knives, and various other kinds of weapons were scattered throughout the house, which itself had been “boobytrapped” by Mr. Shirizadeh.
[6] The events were shocking by their nature and in their scope, all the more so because Mr. Shirizadeh was bound by two court-imposed firearms prohibition orders, one of which was only days old at the time.
The Offences
[7] Mr. Shirizadeh pleaded guilty to the following counts in a multi-count Indictment:
- Count 2: Discharge a prohibited firearm at John Scrymgeour with intent to prevent arrest or detention, contrary to s. 244(1);
- Count 4: Unauthorized possession of a loaded prohibited firearm, namely a .38 revolver handgun, contrary to s. 95(1);
- Count 5: Possession of a firearm, namely a .38 revolver handgun, while prohibited by a s. 109 order, contrary to s. 117.01(1);
- Count 7: Operate a conveyance in a manner dangerous to the public, contrary to s. 320.13(1);
- Count 8: Discharge a firearm at police officers with intent to prevent arrest or detention, contrary to s. 244(1);
- Count 10: Possession of a non-restricted firearm, namely an SKS 7.62 mm x 39 mm rifle, knowing its possession was unauthorized, contrary to s. 92(1);
- Count 14: Possession of a non-restricted firearm, namely a CZ 7.60 mm x 39 mm rifle, knowing its possession was unauthorized, contrary to s. 92(1);
- Count 19: Unauthorized possession of a loaded restricted firearm, namely a 9 mm Smith and Wesson, contrary to s. 95(1);
- Count 24: Possession of a non-restricted firearm, namely a 12 gauge shotgun, knowing its possession was unauthorized, contrary to s. 92(1);
- Count 26: Possession of a prohibited device, namely a 75 round drum magazine for a 7.62 mm rifle, knowing its possession was unauthorized, contrary to s. 92(2);
- Count 28: Possession of an explosive substance, namely a pipe bomb, contrary to s. 82(1); and
- Count 30: Possession of an explosive substance, namely cricket bombs, contrary to s. 82(1).
[8] There can be no doubt that the objectives of protection of the public, denunciation, and deterrence warrant the imposition of a very lengthy penitentiary sentence. Its precise duration is the subject of these Reasons.
The Circumstances of the Offences
[9] On the morning of December 27, 2019, Mr. Shirizadeh armed himself with a five capacity Smith and Wesson .38 Special Caliber Air Weight Revolver. Just before 10:30 a.m., he drove to a gas station located at a busy commercial intersection in Richmond Hill. He also carried additional ammunition for the firearm.
[10] Although Mr. Shirizadeh denies knowledge of this, the firearm had been stolen from an Ohio home and its seral number had been removed.
[11] Mr. Shirizadeh armed himself in this way notwithstanding that he was bound by two court orders prohibiting him from possessing firearms and ammunition, one under s. 109 of the Criminal Code and a second under s. 110. He had no licence or registration certificate allowing him to acquire firearms.
[12] At the gas station, Mr. Shirizadeh parked his SUV at a gas pump, then entered the convenience store. The handgun was in his waistband.
[13] When he returned to his vehicle, a female customer, Ms. A. K., asked him for help installing a windshield wiper on her car. He pulled his SUV to the corner of the lot and parked beside her car.
[14] At that time, a uniformed York Regional Police officer, P.C. John Scrymgeour, happened to drive by the gas station. He recognized Mr. Shirizadeh. Officer Scrymgeour ran computer checks, which showed Mr. Shirizadeh as bound by bail conditions, including one of house arrest. Unknown to the officer, this information was erroneous. Mr. Shirizadeh was no longer on bail.
[15] The events that followed were largely captured on video from the officer’s in-car camera and the gas station’s security system.
[16] The officer drove into the gas station and parked his cruiser nose to nose with Mr. Shirizadeh’s SUV. Mr. Shirizadeh was standing with Ms. A. K., between her vehicle and his. The officer got out of his cruiser and approached them. He asked Mr. Shirizadeh if Ms. A. K. was his surety. Mr. Shirizadeh said she was not, and also that his criminal charges had been resolved. He tried to show the officer papers confirming this.
[17] The officer told Mr. Shirizadeh that he was under arrest for breach of recognizance, and that they could figure out the paperwork, but that he had to put his hands behind his back. Mr. Shirizadeh refused to do so. The officer again told him to put his hands behind his back. Mr. Shirizadeh again refused. He started to back away.
[18] The officer tried to grab Mr. Shirizadeh, while using his radio to request assistance.
[19] Mr. Shirizadeh continued to back away, while facing P.C. Scrymgeour. When he was four to seven feet from the officer, he drew the handgun from his waistband. He rapidly fired at least four rounds in the direction of the officer, with the intention of preventing his own arrest.
[20] P.C. Scrymgeour, fearing for his life and that of others nearby, returned fire in self-defence.
[21] Mr. Shirizadeh ran to the area of one of the gas pumps, emptied four spent cartridge cases, re-loaded the handgun, and returned to the area of his SUV. P.C. Scrymgeour took cover behind his cruiser. Mr. Shirizadeh fired at least three times in the direction of the cruiser, while standing about two car lengths away from the officer.
[22] In addition to Ms. A. K., there were many customers in the immediate vicinity of Mr. Shirizadeh as he fired at the officer. Additionally, there were employees and customers inside the convenience store.
[23] Fortunately, no-one, including P.C. Scrymgeour, was injured. The police cruiser was not struck. The driver’s window of a truck with two men inside it that was parked near Mr. Shirizadeh’s SUV was struck by a bullet, but it could not be proved that the bullet came from Mr. Shirizadeh’s firearm.
[24] Mr. Shirizadeh got into his SUV to flee the gas station. A civilian pulled his vehicle behind the SUV to try to stop it, but Mr. Shirizadeh reversed at high speed, struck the other vehicle, and sped out of the gas station.
[25] Mr. Shirizadeh drove to his home on Elmwood Avenue in Richmond Hill. He had equipped the house, where he lived alone, with signaling devices, trip wires, explosives, firearms, ammunition, knives, other weapons, and combat gear. He barricaded himself in the house.
[26] At 11:36 a.m. he called 911, and reported that he had been involved in a shooting. He demanded “a negotiator”. The Emergency Response Unit (ERU) of York Regional Police, including at least 20 officers, and multiple police vehicles, were dispatched to the area of Mr. Shirizadeh’s house. Neighbours were evacuated from their homes. Detective Derek Wheeler was assigned as a crisis negotiator. He began communicating with Mr. Shirizadeh by telephone shortly after 12 noon.
[27] Although officers and police vehicles surrounded his home, Mr. Shirizadeh refused to come out and surrender to police. He engaged in a ten hour negotiation with police, during which he complained about the police “fucking up [his] life”, referred to P.C. Scrymgeour as a “stupid rookie” and a “pig”, and said he wanted to make a name for himself. He said that P.C. Scrymgeour escalated the situation. He said he wanted to come out peacefully and did not wish anyone to get hurt. He felt the officers wanted to assault him. He said that he was happy P.C. Scrymgeour did not get hurt, and that he was just trying to defend himself.
[28] Mr. Shirizadeh told Detective Wheeler that he had wireless sensors all over his house to sense body heat, that he didn’t want to give away all his tactics, and that he was always armed and kept a blade on his right side and a gun on his left. Although the detective assured him he would not be hurt, he refused to come out of the house.
[29] At 9:35 p.m. the police moved an armoured vehicle toward the house and pushed a ram through the front door. At the same time, ERU officers approached the house and fired projectiles that deployed a gas chemical agent into the residence. These projectiles are used to force barricaded persons away from windows. As this happened, and while multiple ERU officers stood nearby, Mr. Shirizadeh fired at least three rounds out of the upstairs west-side window, followed by at least five more rounds out of that window, and then at least four rounds out of the south-facing window. Some of these shots hit the house directly to the west, as well as vehicles parked in the driveway of that residence.
[30] At 10:20 p.m. Mr. Shirizadeh came out of his house and was arrested. On questioning by the police, he told them of the location of explosive devices, trip wires, and signaling devices, so that they could be safely removed.
[31] The police searched the house and the SUV. They found multiple firearms, ammunition, homemade bombs, knives, and other explosives and weapons. There were trip wires and boobytraps. There were marijuana plants growing in the basement.
[32] The weapons and devices located included the following:
- Upstairs west bedroom:
- A loaded Smith and Wesson .38 Special Caliber Air Weight Revolver. This was the handgun Mr. Shirizadeh fired at the gas station.
- 27 pieces of ammunition suitable for use in the revolver.
- A full magazine for a CZ rifle and four additional rounds of 7.62 x 39 mm ammunition suitable for use in rifles found in the upstairs hallway. The magazine is a prohibited device because of its capacity.
- Eleven fired 7.62 x 39 mm cartridge cases.
- Upstairs hallway:
- A CZ rifle with loaded magazine, and tourniquet attached.
- An SKS rifle with loaded magazine.
- A loaded Smith and Wesson M&P 9, 9 mm semi-automatic handgun with serial number removed. This is a restricted firearm. It was stolen from a residence in Cochrane, although Mr. Shirizadeh denies knowledge of that fact.
- Four loaded magazines. One was a 17 round capacity, fully loaded Smith and Wesson 9 mm magazine. It is a prohibited device. Three were 10 round capacity Smith and Wesson magazines, each loaded with nine rounds of ammunition.
- A 75-round capacity drum magazine for the SKS rifle, fully loaded. This is a prohibited device.
- A gun cleaning kit, a trigger, a gun stock, a gun belt and a leg holster.
- Upstairs east bedroom:
- A 12 gauge Mossberg Model 500 shotgun with ammunition.
- Six magazines for 7.62 x 39 mm cartridges, five of which were loaded. Two were for use in the SKS rifle, and the other four for use in the CZ rifle. Three of the magazines had rivets removed so that they could exceed legal ammunition capacity limits, and as such were prohibited devices.
- A loaded 9 mm magazine.
- Two .38 calibre speed loaders, which are used to reduce the time and effort needed to reload the revolver.
- A box of 9 mm bulk ammunition, suitable for use in the 9 mm semi-automatic handgun.
- A 12 gauge shotgun shell belt containing 25 shotgun shells.
- Five fired .38 Special shell casings.
- Two 12 gauge brass caps.
- A box of ammunition including 7.62 x 39 mm cartridges.
- A flare gun (pellet gun).
- A leg holster, three scopes, a scope mount, and two holsters.
- Upstairs hallway closet:
- Dozens of pieces of 7.62 x 39 mm ammunition suitable for use in the rifles.
- 12 gauge shotgun shells suitable for use in the shotgun.
- Seven magazines loaded with ammunition suitable for use in the seized rifles.
- Stairs and staircase:
- A leg holster.
- Living room:
- A pellet rifle.
- Family room:
- A SigSaur air soft pistol (pellet gun).
- Two holsters.
- Kitchen:
- Two holsters.
[33] In total, the police seized approximately 400 7.62 x 39 mm cartridges suitable for use in the seized rifles, 350 pieces of 9 mm ammunition suitable for use in the seized semi-automatic handgun, 20 pieces of .38 Special ammunition suitable for use in the revolver used at the gas station, and 60 12-gauge shells suitable for use in the seized shotgun.
[34] The police found 27 knives and knife sets, including throwing knives, in various places in the house and in the SUV. There were additional items including axes, hatchets, machetes, a bow and arrow, protective gear including flack vests, binoculars, scanners, and survival books.
[35] There were multiple explosive devices in the house, including cricket bombs and a homemade pipe bomb, all of which were capable of causing serious bodily harm and in the case of the pipe bomb, death, to those nearby on detonation.
[36] Outside the house, the police found explosive substances that would have acted as signaling devices to alert Mr. Shirizadeh to the presence of persons on the property. They included:
- Shotgun shell primer devices, one connected to a trip wire device at the side of the property, another to the front door, and a third to the rear door. If detonated they could cause injury to unprotected eyes and ears.
- 12-gauge shotgun shell blank and flare devices connected to trip wires at the front and rear of the property. If detonated they could cause injury to persons nearby.
- Flash bang grenades, one connected to a trip wire at the front door of the house and another on the rear door. They did not pose a significant risk of injury if detonated.
[37] Inside the house there were explosives-related items including canon fuse, CO2 cartridges, and smoke bombs.
The Circumstances of Mr. Shirizadeh
[38] Information about Mr. Shirizadeh’s background was provided to me by defence counsel, Ms. Wyszomierska. The defence did not request a pre-sentence report.
[39] Mr. Shirizadeh was 34 years old at the time of the offences. He is now 36 years old.
[40] He is Muslim, having been born in Iran during the Iran-Iraq war. His father was conscripted into the Iranian military. His mother cared for him alone, sometimes in hiding. I am told that Mr. Shirizadeh was anxious, hypervigilant, and concerned about safety as a young child.
[41] In 1987 or 1988 he and his mother fled to Turkey, and then came to Canada in 1988 as refugees. Mr. Shirizadeh was then three years old. His father joined them several years later, when Mr. Shirizadeh was eight years old. His father had a drinking problem. He was physically and verbally abusive of his wife and of Mr. Shirizadeh.
[42] Ultimately, Mr. Shirizadeh’s parents divorced in 1994. His mother remarried in 1996, and as a result he has a half-brother and a step-brother. His father also remarried, but did not maintain a relationship with Mr. Shirizadeh. Mr. Shirizadeh was unaware, until months after the fact, that his father passed away in 2018.
[43] Mr. Shirizadeh completed high school. He then worked in the automobile industry, at various car dealerships. He held a management position at one of them.
[44] Mr. Shirizadeh has a criminal record dating back to March 2013, when he pleaded guilty to unauthorized possession of a restricted firearm with ammunition and to careless storage of a firearm. The admitted facts were that the police executed a search warrant at Mr. Shirizadeh’s basement apartment located in his parents’ home. The police found a 457 Beretta handgun in a drawer, and 50 rounds of ammunition for it on top of a dresser. They also found a 12 gauge shotgun in a closet, five shotgun shells on top of the dresser, a sword in a closet, and a machete in a drawer. Mr. Shirizadeh was sentenced to three years in jail less some pre-sentence custody. A s. 109(2)(a) order for 10 years and a s. 109(2)(b) order for life were imposed.
[45] In January 2017 he pleaded guilty to possession of oxycodone. The presiding judge was advised by defence counsel (not Ms. Wyszomierska) that Mr. Shirizadeh had been addicted to “serious drugs” since he was about 18 years old, and was on methadone. He received a fine.
[46] On December 16, 2019, Mr. Shirizadeh pleaded guilty to unauthorized possession of a prohibited device, specified to be magazines capable of holding more than 10 rounds of ammunition. He had been stopped by the police while driving a vehicle. In it were found two .40 caliber SigSauer magazines capable of holding 14 rounds of ammunition. The police also found a collapsible baton, a balaclava, two hand-held radios, the butt of a collapsing shotgun stock, and oxycodone pills. The sentencing judge was told by defence counsel (not Ms. Wyszomierska) that at some point Mr. Shirizadeh had been in a car accident, suffered a head injury, and was prescribed the oxycodone. Mr. Shirizadeh was fined after being credited with pre-sentence custody. A s. 110 weapons prohibition order was imposed for 10 years.
[47] Mr. Shirizadeh has been in custody since his arrest on these charges, a total of 1000 days.
[48] Records provided by Central East Correctional Centre (CECC) indicate that as of March 22, 2022, Mr. Shirizadeh was locked down for all or part of a day because of staffing shortages or health protocols related to COVID-19, on more than 265 occasions. I have no doubt that such lockdowns continued to occur after March 2022.
[49] Depending on the duration of a lockdown, inmates may have no access to dayroom or yard, and only limited access to phones, showers, and visits. Barbara Konkle, Manager of Security and Investigations at CECC, testified that during a partial lockdown, meaning anything less than 10 hours, inmates have some time in dayroom, where there are showers and telephones.
[50] Mr. Shirizadeh provided an affidavit in which he described the adverse impact on him of lockdowns. In addition to matters related to the lockdowns, he made a number of assertions about the conditions of his pre-sentence detention. They included lack of fresh clothing, lack of clean bedding, dental issues that were not attended to promptly, and a lack of attention to his dietary needs.
[51] Ms. Konkle testified that clean clothing and bedding is made available to inmates twice a week. However, she was aware that for a period of time earlier this year, for reasons not explained, Mr. Shirizadeh’s unit did not receive clean laundry. This eventually was rectified. She also said that Mr. Shirizadeh’s diet has been changed multiple times, and his dietary needs have been accommodated.
[52] Mr. Shirizadeh tested positive for COVID-19 in January of this year.
[53] I was provided with a Suicide Prevention Admission Checklist that was completed by a correctional officer on Mr. Shirizadeh’s admission to CECC on December 28, 2019. Mr. Shirizadeh was not noted to be suicidal. However, under the heading “Observations” there is a handwritten notation “Possible Paranoia”.
[54] I also was provided with a brief letter dated April 17, 2020, from Dr. Julian Gojer, a forensic psychiatrist. It was addressed to Mr. Shirizadeh’s previous counsel and from its content, I infer it was provided for use on a bail application. Dr. Gojer wrote as follows:
Thank you for asking me to assess and arrange for counseling for your client as named above. I have had an opportunity to review the police synopsis of the allegations, interview the client and interview his mother.
Mr. Shirizadeh has a history of traumatic experiences. He is presently suffering from depression, severe anxiety, and possibly a psychosis. He also has a history of cannabis abuse.
[55] Dr. Gojer noted that Mr. Shirizadeh was keen to engage in treatment.
[56] Mr. Shirizadeh’s mother, step-father, and half-brother provided letters of support. His mother describes him as having been very protective of her as he grew up, and as taking on household responsibilities. After she was involved in a serious accident, he was like a personal caregiver to her. She says he is a caring and compassionate person. His step-father describes him as someone who has always done what is right for his family, and is a giving, thoughtful, and caring individual. His younger half-brother credits him with being a father-figure who taught him to accept responsibility. Two friends also wrote in support of him.
[57] In his remarks at the conclusion of the sentencing hearing, Mr. Shirizadeh said that he is sorry and ashamed. He knows that he is to blame for his offences. He apologized to members of the public, and to P.C. Scrymgeour and his family.
The Positions of the Parties
[58] On behalf of the Crown, Ms. Rumble seeks a total sentence of 20 years in jail, less pre-sentence custody credited at one and a half to one. She submits that the governing principles of sentencing are denunciation and general and specific deterrence. She emphasizes that the offences are very serious, and Mr. Shirizadeh has a high degree of moral blameworthiness. An exemplary sentence is called for.
[59] Ms. Rumble contends that the aggravating factors are significant. They include Mr. Shirizadeh’s previous criminal record, its nature and timing; that at the time of these offences he was bound by two firearms prohibition orders; that the collection of illegal and dangerous weapons in the house was large and diverse, and would have taken some time to amass; that he drove to a busy commercial area with a loaded handgun down his pants; that at the gas station he discharged the gun at least seven times; that his discharge of firearms at the gas station and at the house was directed at police officers and also endangered the lives of others who were there; that multiple firearms were stored carelessly and dangerously throughout his house; that he had explosive substances capable of causing harm to others there; and that after resisting arrest at the gas station he mounted a ten hour stand-off that was a highly volatile situation requiring a massive police effort to address. Ms. Rumble submits that a global sentence of 20 years takes into account the mitigating factors, including Mr. Shirizadeh’s guilty pleas and the harsher than usual conditions of his pre-sentence custody.
[60] Ms. Rumble asks that on counts 2 and 8 I increase the period of parole ineligibility to one-half the sentence. She also seeks a DNA order, a lifetime s. 109 order, a forfeiture order for all items seized, a five year driving prohibition order on count 7, and a s. 743.21 order of non-communication with P.C. Scrymgeour.
[61] On behalf of the defence, Ms. Wyszomierska seeks a sentence of nine and a half to 12 years in jail, with emphasis on the bottom end of that range, less pre-trial custody calculated at one and a half to one. She contends that the sentence sought by the Crown would be crushing for Mr. Shirizadeh, and does not sufficiently take into account the mitigating factors or the totality principle.
[62] Ms. Wyszomierska points out that Mr. Shirizadeh pleaded guilty, which is a genuine sign of his remorse. His pleas spared witnesses from having to testify, and saved court time that is in demand at a time of backlog. The majority of his pre-sentence custody has been during the COVID-19 pandemic, and the circumstances of his detention have been harsher than usual with many days of lockdown. He contracted COVID-19 in custody. With respect to his background, he is an individual who came from a war-torn country, and he internalized his feelings, including those of anxiety, as a child. He has the full support of his family, which will assist in his rehabilitative efforts.
[63] Ms. Wyszomierska suggests that at the time of the offences, Mr. Shirizadeh suffered from mental illness, including paranoia. That played a role in his amassing of weapons. The causal link between his mental illness and the offences is a mitigating factor. He is agreeable to treatment and counselling.
[64] Ms. Wyszomierska opposes an order of delayed parole ineligibility. She submits that the Parole Board should be left to determine release in the usual way, after Mr. Shirizadeh is assessed and has been able to have the treatment and counselling he is willing to undergo in prison. She does not oppose the ancillary orders sought.
[65] I have reviewed the dozens of cases provided to me by Crown and defence counsel. The indices to the casebooks will be marked as lettered exhibits to today’s proceedings. I will refer to some, but not all of those decisons in these Reasons.
Principles of Sentencing
[66] The Criminal Code sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.
[67] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.
[68] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court of Canada has indicated that proportionality is the chief organizing principle in determining a fit sentence.[^1] The severity of a sentence depends on the seriousness of the crime and its consequences, and on the moral blameworthiness of the offender.[^2]
[69] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that where consecutive sentences are imposed the combined sentence not be unduly long or harsh, and that an offender not be deprived of liberty if less restrictive sanctions may be appropriate.
[70] In every case, the determination of a fit sentence is an individualized, fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”.[^3] The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge.[^4]
Analysis
[71] This case involves a stunning constellation of firearms and weapons possession offences, including Mr. Shirizadeh’s unauthorized possession of two separate loaded handguns, one a prohibited firearm and the other a restricted firearm.
[72] For over a decade, Ontario courts have recognized the problem of the proliferation of handguns, and the associated threat to public safety. In R. v. Brown, the Court of Appeal for Ontario referred to handguns as “an all too prevalent menace in the Greater Toronto Area.”[^5] Sadly, statistics compiled by York Regional Police and filed in these proceedings confirm that the menace remains firmly in place in York Region.
[73] The Court emphasized in Brown that sentences imposed for firearms offences must further the goals of denunciation, deterrence, and protection of the public.[^6] In that case, the offender was arrested getting into a car. He had a loaded restricted firearm down the front of his pants. He was bound by two lifetime prohibition orders, as a result of two prior sets of convictions for firearms offences. He was in Canada illegally. He pleaded guilty to possession of a loaded restricted firearm and to breach of a firearms prohibition order. The Court of Appeal increased his sentence to a global sentence of eight and a half years, less credit for pre-sentence custody.
[74] Appellate court decisions since Brown have continued to call for sentences that denounce and deter firearms offences. In R. v. Chambers[^7], the Court of Appeal for Ontario termed a global sentence of eight years’ imprisonment “lenient”, where the offender had a loaded restricted firearm that he discarded as he ran from the police. He was on bail and probation, had two previous convictions for firearms offences, and was bound by two prohibition orders.
[75] Subsequently, although he found the mandatory minimum sentence for possession of a loaded restricted or prohibited firearm unconstitutional, Doherty J.A. said in R. v. Nur, “[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 should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”[^8]
[76] But the case before me does not entail only the possession of firearms. It involves actual gun violence, directed by Mr. Shirizadeh at police officers in order to prevent his arrest. The gravity of firing a loaded gun at a police officer in such circumstances, and the need for sentences that denounce and deter, has again been made clear by appellate court decisions.
[77] In R. v. Rajkovic the Court of Appeal for Ontario held that the offence of discharge firearm with intent to avoid arrest or detention “warrants a very strong sanction.”[^9] It applied the words of Doherty J.A. in R. v. McArthur,[^10] where the offender shot three police officers as he fled after committing a bank robbery. Doherty J.A. said,
[T]he maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm’s way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society’s dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function. [Citation omitted][^11]
[78] Parliament recognized the seriousness of the offence of discharge firearm with intent to avoid arrest or detention by legislating a maximum punishment of 14 years’ imprisonment, with a mandatory minimum sentence of five years in jail where the offence is committed using a prohibited firearm, and a mandatory minimum sentence of four years in jail where the offence is committed using a firearm.
[79] Among the offences for which I will sentence Mr. Shirizadeh is that of breach of a firearms prohibition order imposed in March 2013, as a result of his possession of the .38 Special Caliber Air Weight Revolver that he discharged at P.C. Scrymgeour.
[80] I note that in R. v. McCue,[^12] the Court of Appeal for Ontario indicated that trial judges have two options in sentencing for this offence, where a sentence also will be imposed for the substantive offence of possession of a firearm. The judge can take the breach into account as an aggravating factor on sentencing for possession of the firearm, and then impose a concurrent sentence for the breach. Alternatively, the judge can ignore the breach on sentencing for the firearm offence, and then impose a consecutive sentence for the breach. The judge cannot do both.
[81] I have decided to do the latter. I do this because the breach was an intentional and blatant violation of a previous court order imposed, at least in part, to protect the public. There must be, and be seen to be, a real consequence for its breach.
[82] Against that background, I turn to the aggravating and mitigating factors in this case.
[83] The aggravating factors with respect to events at the gas station include:
- Mr. Shirizadeh chose to arm himself with a loaded handgun and travel in his vehicle to a public place that he could reasonably expect would be frequented by members of the public, a gas station at a busy commercial intersection. This was inherently dangerous behaviour on his part.
- He discharged the firearm at P.C. Scrymgeour, multiple times, in two bursts from two separate locations in the gas station. In order to do this, he had to empty spent cartridge cases from the gun and then re-load it. This was deliberate, not impulsive conduct.
- Mr. Shirizadeh put multiple lives at risk, first and foremost that of P.C. Scrymgeour, but additionally that of Ms. A. K. and other customers and employees at the gas station. Any one of them could have been hit by a bullet and killed or seriously injured. Had a gas pump been hit by gunfire it could have exploded, with catastrophic consequences. Even though no-one was injured, the conduct was highly dangerous.
- Mr. Shirizadeh deliberately struck, at high speed, the vehicle that tried to stop him. He had no regard for the well-being of the driver of that vehicle.
[84] The aggravating factors with respect to events at the house include:
- Mr. Shirizadeh did not simply flee home. He barricaded himself in his house, and engaged police in a tense and costly 10 hour stand-off. The police response to Mr. Shirizadeh involved the deployment to a residential area of at least 20 highly trained ERU officers, a crisis negotiator, multiple police vehicles, an armoured vehicle, and a helicopter. It required the evacuation from their homes of Mr. Shirizadeh’s innocent neighbours. Mr. Shirizadeh created a highly volatile and dangerous situation that impacted many people.
- Mr. Shirizadeh discharged a firearm at police officers multiple times, from different windows of the house. While it is fortunate that no-one was injured as a result, the potential for harm was great given the number of police officers at the scene, and its location. This is underscored by the fact that Mr. Shirizadeh’s shots hit a neighbour’s house and vehicles parked in its driveway.
- Mr. Shirizadeh had inside the house a large cache of firearms, ammunition, explosives, and weaponry capable of causing serious harm to others. The size and diversity of the collection was such that it would have taken him time and calculation to amass it. It was not a collection that would have been casually acquired in a matter of a few days. Many of the items were illegal. They included a loaded restricted firearm which had its serial number removed, rifle magazines that had been altered to enable them to hold ammunition in excess of legal capacity limits, and homemade bombs. There were over 800 pieces of ammunition, and almost three dozen fearsome-looking knives, knife sets, and machetes.
- Mr. Shirizadeh had this arsenal notwithstanding that he been on a strict house arrest bail until just days before December 27, 2019, which included a clause that he not possess any weapons including firearms, ammunition, and explosive substances. I am satisfied beyond a reasonable doubt that he maintained a weaponry collection even while he was on that bail.
- The firearms, magazines, and ammunition were not stored with any regard for safety. They were strewn around the house, and readily accessible, including propped up in the upstairs hallway, and sitting on a bed.
- That Mr. Shirizadeh had “boobytrapped” his property and house created an extra measure of hazard for the police officers at the scene.
[85] Additionally, there are aggravating factors common to both sets of events. They are:
- Mr. Shirizadeh has a prior criminal record that includes convictions for firearms related offences. The most recent was entered just days before the current offences were committed.
- In addition to the firearms prohibition order that he has pleaded guilty to breaching and which I do not take into account as an aggravating factor, Mr. Shirizadeh was bound by a second order, under s. 110, imposed just days before these events, on December 16, 2019.
- Although no Victim Impact Statements were provided, it is a reasonable inference and one that I draw that the events at the gas station and the house would have been harrowing even for professionally trained police officers, and frightening for civilians such as those at the gas station. Further, while no-one was injured, Mr. Shirizadeh damaged the vehicle he deliberately rammed into at the gas station, and then recklessly damaged his neighbour’s house and vehicles with gunfire.
[86] Ms. Wyszomierska submitted that I should consider in mitigation that there is a causal connection between Mr. Shirizadeh’s offences and a mental illness on his part. As the Court of Appeal for Ontario explained in R. v. Battisse[^13], where there is a mental illness at play, severe punishment is less appropriate because it is disproportionate to the degree of responsibility of the offender, and deterrence assumes less importance because it is unlikely to be achieved by punishment. But this is not a case like Batisse, where the sentencing judge had before him psychiatric evidence indicating that the offender was suffering from depression, as well as a personality disorder, at the time of the offence. On the basis of that evidence, the sentencing judge was able to find that the offender’s depression along with her personality disorder led to the commission of the offence.
[87] There is no psychiatric report or other evidence before me that on December 27, 2019, Mr. Shirizadeh was suffering from a mental illness that led him to commit the offences. I say this for the following reasons:
- The Suicide Prevention Admission Checklist, completed by a correctional officer on Mr. Shirizadeh’s admission to CECC on December 28, 2019, has a handwritten notation “Possible Paranoia”, and some boxes with standard wording checked off, but no details given. This document provides some information about Mr. Shirizadeh’s presentation at the jail, some time after his arrest. It does not speak to whether he was acting under the press of a mental illness during events at the gas station and at the house.
- Dr. Gojer’s brief letter dated April 17, 2020, months after the offences, states that Mr. Shirizadeh “is presently suffering from depression, severe anxiety, and possibly a psychosis.” Whatever the basis for this conclusion, the wording is specific, and Dr. Gojer does not say that Mr. Shirizadeh suffered from these or other mental illnesses at the time of the offences.
- Similarly, while Mr. Shirizadeh states in his affidavit that he has “been diagnosed with depression and severe anxiety” and prescribed Clonazepam at the jail, the affidavit is directed to the conditions of his detention and their impact on him, not to a pre-existing mental illness.
- In their letters of support, his family members speak of Mr. Shirizadeh’s kind, compassionate, caring, and thoughtful nature. None of them describe him displaying any mental health problems in the period leading up to December 27, 2019.
[88] I am unable to find on a balance of probabilities that when he committed the offences, Mr. Shirizadeh suffered from a mental health problem or illness that played a central role in their commission.
[89] I find the following factors to be mitigating:
- Mr. Shirizadeh pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offences. He expressed remorse in his remarks in court. Although his guilty pleas were not made at the earliest opportunity, as they came after a date for a Superior Court trial was set, they did save weeks of court time. This is important because the Superior Court is still dealing with a COVID-19 created backlog of cases. The guilty pleas also avoided the need to have witnesses, particularly P.C. Scrymgeour, testify and relive distressing events.
- The majority of Mr. Shirizadeh’s pre-sentence custody has been served during the pandemic, when conditions in the detention centres have been harsher than usual. He was locked down in his cell on many occasions because of staffing shortages and public health protocols. I am satisfied that there were times when his unit was not provided with clean laundry. I also accept that he experienced delay in getting necessary dental treatment. During the pandemic, inmates were at greater risk of contracting COVID-19 because of the communal living setting, and Mr. Shirizadeh did contract COVID-19. These difficult circumstances are properly taken into account in mitigation in accordance with R. v. Marshall.[^14]
- Mr. Shirizadeh had a difficult childhood, in that he initially was raised by his mother in a war-torn country, came to Canada as a refugee, and suffered abuse by his natural father. After his parents’ divorce, he took on household responsibilities. The letters from his family members indicate that he gained a stable family unit on his mother’s remarriage in 1996, when he was an adolescent.
- Mr. Shirizadeh’s mother, step-father, and half-brother remain supportive of him. This is important to his potential for rehabilitation.
[90] Notwithstanding those factors that I do accept as mitigating, the gravity of Mr. Shirizadeh’s offences and his moral blameworthiness are high.
[91] Mr. Shirizadeh chose to arm himself and to take a concealed loaded handgun to a public place. That in and of itself posed a very real danger to the public. That danger increased dramatically when he was approached by a uniformed police officer who tried to arrest him, in the lawful execution of his duties, not knowing that Mr. Shirizadeh was armed. Mr. Shirizadeh’s decision to respond by firing at the officer, multiple times, put the officer’s safety, and that of others at the gas station, at immediate risk. He then fled from the scene to avoid apprehension, deliberately ramming another vehicle and its occupant in the process. The video compilation of the events can only be described as chilling. Mr. Shirizadeh’s conduct was of the very kind denounced by the Court of Appeal for Ontario in R. v. Morris as “antithetical to the Canadian concept of a free and ordered society”.[^15]
[92] His flight took him to his home, where he engaged in a second round of criminality, backed by an arsenal of weapons and ammunition he had surely acquired and maintained over time, notwithstanding that he had recently been bound for months by a strict bail order, and in blatant breach of a s. 110 prohibition order imposed just days earlier. His conduct required a massive police response. For 10 hours, Mr. Shirizadeh put multiple police officers and the local community at peril. He demonstrated a complete disregard for the safety of others, both police officers and anyone else who might have been in the area, when he fired repeatedly from the windows of his house. The photographs of the weapons found in the home make very clear the lethality of his collection, and the real danger he posed to others.
[93] This is an exemplary case, and an exemplary sentence is required. There is a very strong need for a sentence that denounces Mr. Shirizadeh’s unlawful conduct, deters him and deters others, and protects the public. Rehabilitation, while not entirely out of the question for Mr. Shirizadeh, is a sentencing objective of markedly less weight.
[94] I have determined that the offences at the gas station and those at the house require consecutive sentences, given that they occurred at different locations, involved different weaponry and conduct, and implicated different potential victims. I bear in mind that the principle of totality requires that the global sentence not be excessive.[^16]
[95] Balancing the aggravating and mitigating factors, and having regard to the applicable principles and objectives of sentencing, I conclude that a total sentence of 18 years in jail, less pre-sentence custody credited at one and a half to one, should be imposed. A global sentence in the range urged by defence counsel would not reflect the gravity of the offences committed and Mr. Shirizadeh’s moral culpability. However, a sentence of 20 years as sought by Crown counsel would be unduly long.
[96] The sentence on count 2 will be nine years in jail, less 36 months of presentence custody calculated at one and a half to one, leaving six years to serve, and on count 8, six years in jail consecutive. I am not persuaded that it is appropriate to order a period of delayed parole eligibility on those counts as Crown counsel requested. I have applied the analysis articulated in R. v. Zinck,[^17] where the Supreme Court of Canada recognized that a delayed parole order should be made only on the basis of demonstrated need. After giving priority to deterrence and denunciation, and considering all the criteria and principles relevant to sentencing, based on the evidence, I conclude that the Crown has failed to demonstrate that delayed parole is necessary or required.
[97] I also agree with the comments of Harris J. in R. v. Kawal,[^18] that the Parole Board, with the benefit of both its specific expertise and the information it will have including about Mr. Shirizadeh’s performance in the penitentiary, will be in a better position than I am today to determine whether and when Mr. Shirizadeh should be paroled.
Conclusion
[98] Mr. Shirizadeh, please stand.
[99] I sentence you as follows:
- On count 2, to nine years jail, less 36 months of pre-sentence custody calculated at one and a half to one, leaving six years to serve
- On count 4, to six years jail concurrent to the sentence on count 2
- On count 5, to 18 months jail consecutive, less 6 months of pre-sentence custody calculated at one and a half to one, leaving one year to serve
- On count 7, to one year jail consecutive, less six months of pre-sentence custody calculated at one and a half to one, leaving six months to serve
- On count 8, to six years jail consecutive
- On count 10, to five years jail concurrent to the sentence on count 8
- On count 14, to five years jail concurrent to the sentence on count 8
- On count 19, to six years jail concurrent to the sentence on count 8
- On count 24, to five years jail concurrent to the sentence on count 8
- On count 26, to three years jail concurrent to the sentence on count 8
- On count 28, to six months jail consecutive, less two months of pre-sentence custody calculated at one and a half to one, leaving a sentence to serve of four months
- On count 30, to six months jail concurrent to the sentence on count 28.
[100] To be clear, the total sentence is 18 years in jail, less 50 months of pre-sentence custody calculated at one and a half to one, leaving a total sentence to serve of 13 years and 10 months in the penitentiary.
[101] I make the following ancillary orders:
- DNA on all counts;
- Section 109 for life on all counts except count 7;
- A five year driving prohibition order on count 7;
- Forfeiture of all items seized; and
- A s. 743.21 order in respect of John Scrymgeour.
Justice M.K. Fuerst
Released: September 21, 2022
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANOSHIRVAN SHIRIZADEH
Defendant
REASONS FOR SENTENCE
Justice M.K. Fuerst
Released: September 21, 2022
[^1]: R. v. Parranto, 2021 SCC 46, at para. 10 [^2]: R. v. Lacasse, 2015 SCC 64, at para. 12 [^3]: 2008 SCC 6, at para. 15 [^4]: Lacasse, at paras. 58 and 143 [^5]: 2010 ONCA 745, at para. 14 [^6]: Above, at para. 13 [^7]: R. v. Chambers, 2013 ONCA 680, at para. 42 [^8]: 2013 ONCA 677, at para. 206, aff’d 2015 SCC 15 [^9]: 2021 ONCA 11, at para. 15 [^10]: (2004), 2004 CanLII 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.) [^11]: Above, at para. 49 [^12]: 2012 ONCA 773, at para. 22 [^13]: (2009), 2009 ONCA 114, 93 O.R. (3d) 643 (C.A.), at para. 38 [^14]: 2021 ONCA 44, at paras. 50-53 [^15]: 2021 ONCA 680, at para. 68 [^16]: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42; R. v. Ahmed, 2017 ONCA 76 [^17]: 2003 SCC 6, at para. 31 [^18]: 2018 ONSC 7531, at paras. 92-3