His Majesty The King v. Emmanuel Pinard, 2023 ONSC 129064

Court and Parties

Court: SUPERIOR COURT OF JUSTICE Case Name: HIS MAJESTY THE KING v. EMMANUEL PINARD

Reasons for Sentence Delivered By: THE HONOURABLE MR. JUSTICE R. MARANGER Date: May 18, 2023, at OTTAWA, Ontario

Appearances:

• C. Moreno, Counsel for the Crown
• E. Pinard, In Person

Table of Contents

Reasons for Sentence

• Position of the Parties
• Principles of Sentencing
• Ranges of Sentences for this Type of Offence

Transcript Ordered: May 18, 2023 Transcript Completed: May 20, 2023 Approved by Maranger J.: May 24, 2023 Ordering Party Notified: May 24, 2023

Reasons for Sentence

MARANGER J. (Orally):

[1] On the 31st of March 2023, following a six-week trial with two co-accused, a jury convicted Emmanuel Pinard of one count of possession of a firearm while prohibited. He was found not guilty of one count of conspiracy to commit murder, one count of attempted murder and one count of reckless discharge of a firearm. The offences were said to have occurred on September 17, 2020.

[2] Mr. Pinard also faced two counts relating to an incident said to have taken place on September 14, 2020 that were severed from the counts that were before the jury and ultimately stayed following the result of the jury trial.

[3] The essential factual background resulting in his conviction can be summarized as follows. The allegations and conviction against Emmanuel Pinard stem from a shooting incident that occurred in a parking area at Hog’s Back Park in Ottawa on September 17, 2020. At trial, he was co-accused with Michael Nicolitsis. They were jointly charged with conspiracy to commit murder, attempted murder, reckless discharge of a firearm and possession of a firearm while prohibited. At the end of the trial, Michael Nicolitsis was found not guilty of the conspiracy to commit murder and attempted murder, but guilty of reckless discharge of a firearm.

[4] The evidence at trial supports the proposition that Emmanuel Pinard was in a vehicle with Michael Nicolitsis and a witness, Gordon Kinistino, when Michael Nicolitsis would have exited the vehicle and recklessly discharged a firearm at Hog’s Back Park. While several shots were fired, no one was injured.

[5] It seems likely that the path to conviction taken by the jury would have been that Emmanuel Pinard was found to be in joint possession of a firearm with Michael Nicolitsis on the night in question.

Position of the Parties

[6] The Crown is asking for a term of imprisonment of 6 years with credit for time served at the standard 1.5 for 1. That would allow for the Warrant of Committal to indicate approximately 4 years and 11 months imprisonment left to be served together with the usual ancillary Orders.

[7] Mr. Pinard, on his own behalf, submitted that the appropriate disposition would be 1-year and 1‑month years imprisonment or time served.

Principles of Sentencing

[8] Justice David Paciocco said the following respecting the responsibility of a sentencing judge in the case of R. v. P.V., 2016 ONCJ 64, at paras. 13 to 15:

[13] My task in arriving at a fit sentence is not to choose between these two polarized positions, nor is it a simple exercise in mathematics. Sentencing is a complex exercise that is to be guided by settled principles of law, and precedents.

[14] Specifically, I am to gain a measure of the gravity of the offences, and Ms. V.’s degree of responsibility, including any personal factors that might aggravate or mitigate her sentence. Having done so, I am to identify the appropriate priorities the sentence is to be given among the purposes of sentencing identified in section 718 of the Criminal Code. I am then to craft a fit sentence in light of those objectives and the guiding principles of sentencing, with careful regard to the range of sentencing approved in the case law.

[15] This is not a precise exercise, but it is a systematic one that is meant to lead to a fair, just, and humane but purposeful outcome.

[9] 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;

(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 or to the community.

[10] In the case of Emmanuel Pinard, the aggravating factors would include the following:

• Mr. Pinard’s criminal record is a significant record dating back to the year 2000. While Mr. Pinard has never served a lengthy term of imprisonment, his record shows a previous conviction in 2013 for possessing a firearm, 13 convictions involving allegations of violence, and 33 convictions involving breaching of court orders.
• The offence in question occurred while he was subject to a prohibition order.
• The factual circumstances of the possession of the handgun were that it was in a motor vehicle on a public road and that it was ready for immediate use.

[11] The mitigating factors:

• Mr. Pinard has the support of his family. His mother and his sisters were here during the sentencing hearing and, clearly, they showed support and care about him immensely, as does his current common-law partner Vanessa who is the mother of his second child. She was here during the sentencing hearing and clearly cares about what happens to Mr. Pinard.
• I also found that Mr. Pinard displayed at least at various times during the trial a great respect for the Court and the process, and I think that he deserves credit for that, some credit in terms of mitigation.
• As well, he disclosed that he is a caring father, he cares about his children greatly and wants to be involved in their lives.

Ranges of Sentences for this Type of Offence

[12] Mr. Pinard provided me with several sentencing decisions such as R. v. Reid, 2013 ONSC 2342, R. v. Carrol, 2014 ONSC 2063, and R. v. Tully, [2014] O.J. No. 350, where the range of sentences for convictions for possessing a firearm while prohibited appear to be in the mid to upper reformatory range or the 15 to 18-month range. I would note that with respect to each of the decisions he provided, the penalties were consecutive penalties to longer periods of incarceration for having found the accused guilty of possessing a firearm.

[13] The Crown submitted that the range of sentence for this case should be more akin to the range of sentences for possessing a loaded handgun or conviction pursuant to s. 95 of the Criminal Code, the logic being there had to have been a finding of fact by the jury that Mr. Pinard was in possession of a firearm to find him guilty of possessing a firearm while prohibited. In a case such as this where it is a standalone offence, logic dictates that that must be the consideration. I agree with the Crown in this respect.

[14] The case law provided to me by the Crown, including R. v. Nur, 2015 SCC 15, R. v. Mohiadin, 2021 ONCA 122, R. v. Mahamet-Zene, 2018 ONSC 1050, R. v. Elie, 2015 ONSC 300, suggests a range or a penalty of 3 to 6 years for possession of a prohibited loaded firearm contrary to s. 95.

[15] What Mr. Pinard must understand, that in his circumstances the path to conviction here had to, by inference, include a finding of fact that Mr. Pinard was a party to possessing a loaded restricted firearm.

[16] After taking into consideration the submissions of counsel and Mr. Pinard, the relevant sentencing principles including the principle of totality, the aggravating and mitigating factors, the circumstances of the offence and the offender, I conclude that the appropriate disposition, prior to the application of any credit for pre‑sentence custody, in this specific case is a period of incarceration of 3 years and 4 months.

[17] With respect to pre-sentence custody and its application, the Crown has calculated that, as at the date of the hearing, Mr. Pinard had credit for 263 days, with credit 1:1.5 equalling 395 days of pre-trial custody. He has now spent a further 13 days in custody. Consequently, I would calculate the pre-trial custody credit at this juncture to be 415 days. This would leave on the Warrant of Committal a period of 800 days or 2 years 2 ½ months left to be served.

[18] There will also be the following ancillary Orders:

• An Order that the offender provide a sample of his bodily substances for the purposes of DNA;
• An Order pursuant to s. 109 prohibiting him from possessing a weapon or firearm for life;
• An Order pursuant to s. 743.21 prohibiting the offender from having any contact or communication with Gordon Kinistino or Nikala Hy-Paul. The non-communication Order respecting Ms. Hy-Paul is subject to any Family Court Order allowing Mr. Pinard any kind of access to his child.

THE REGISTRAR: All rise.

EMMANUEL PINARD: I wouldn’t have even got a possession if this was in front of judge. This was an unfair sentence.

THE COURT: I’m sorry?

EMMANUEL PINARD: This is an unfair sentence.

THE COURT: No, it....

EMMANUEL PINARD: It’s a very unfair sentence.

THE COURT: You have rights of appeal, Mr. Pinard.

EMMANUEL PINARD: You guys – you guys – you guys sentenced me based on bullshit, man. I didn’t even do anything. I’m in a vehicle. You guys even know, you guys seen me get set up in the messages, and you still sentenced me. See, this is what happens, the system is corrupt. The system is corrupt. I can’t wait to sue all you guys.

THE REGISTRAR: The court is in recess.

...EMMANUEL PINARD IS REMOVED FROM THE COURTROOM

Certificate of Transcript

FORM 3

CERTIFICATE OF TRANSCRIPT EVIDENCE ACT, subsection 5(2)

I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcript, produced to the best of my skills and ability, of the recording of R. v. Emmanuel Pinard in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR36_20230518_085654__30_MARANGRO, which has been certified in Form 1 by Lindsay Highley.

May 20, 2023 Date Electronic signature of Lynn Carrière, ACT ID 2366775200 Ontario, Canada

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.