Court File and Parties

COURT FILE NO.: CR-20-00011709 DATE: 20230111 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – AREEB-UD-DIN ZAIN Defendant

Counsel: Mr. R. Scott, for the Crown Mr. M. Engel, for the Defendant

HEARD: December 2, 2022

REASONS FOR SENTENCE

FUERST J. :

Introduction

[1] Attempts to stop a vehicle that ran a red light prompted its driver, Areeb-Ud-Din Zain, to open fire on three police officers. He stopped shooting only once other officers armed with rifles arrived and felled him.

[2] The events were captured in chilling detail by video recordings and police radio communications.

[3] Despite Mr. Zain’s efforts, none of the officers were injured in the shoot-out.

[4] Mr. Zain was apprehended and taken into custody. The same officers whose lives he had just endangered attended to his injuries.

[5] Mr. Zain pleaded guilty to three counts of discharging a prohibited firearm with intent to endanger life, unauthorized possession of a non-restricted firearm, flight from police, and possession of cocaine.

The Circumstances of the Offences

[6] On November 23rd, 2020, at about 12:35 a.m. P.C. Gamey observed a blue Buick Verano run through a red light on Highway 7 in Vaughan. He followed the car to stop it, but the vehicle sped away. The officer decided not to pursue the car. He aired the vehicle description and plate number over the police radio communications system.

[7] The officer caught up to the car at a second red light, but when he activated the cruiser’s emergency lights, the car fled.

[8] The driver of the car, and its lone occupant, was Areeb-Ud-Din Zain.

[9] P.C. Amoateng, who was nearby, positioned his cruiser to intercept the blue Buick. He saw it make a right turn off Highway 7 onto Maplecrete Road. He followed it from some distance. It parked in a lot apparently reserved for a condominium building nearby. The officer observed Mr. Zain walking “with purpose” away from the blue Buick.

[10] P.C. Amoateng provided a limited description of Mr. Zain and his directionality over the police radio. Several officers moved toward the area in response to the updated location of Mr. Zain.

[11] Three police cruisers converged at the corner of Highway 7 and Maplecrete Road. They parked at the end of a corridor running south in front of a building that Mr. Zain had turned to walk down, away from the police cruisers.

[12] P.C. Bradley Man, P.C. Andrew Gardner, and P.C. Waylon Pigott each got out of their respective cruisers. The officers called out to Mr. Zain, but he began jogging through the exterior condominium corridor. He then produced a firearm from a pocket and started shooting at the three officers. He knew that he was engaged with the police at all material times, including when he fired the initial shot.

[13] The officers returned fire. Mr. Zain did not stop. Instead, he consistently moved away from the officers, as he periodically ran to relocate and return fire. The officers and Mr. Zain zigzagged through and around large concrete pillars, as the shootout continued.

[14] A “Total Station” diagram later submitted by a Special Investigations Unit (SIU) investigator supported that Mr. Zain fired at least six bullets in the pillared exterior condominium corridor. He was shooting at the officers as he ran in the opposite direction, from some 20 to 40 metres away.

[15] Mr. Zain reached the end of the corridor and ran across a parking lot to make his way around the side of an adjacent event centre. As he did so, he fired behind him in the direction of the officers, including as he rounded the edge of the event centre.

[16] The three officers ran over. They then cautiously navigated the blind spots around the star-shaped event centre. Mr. Zain continued to fire on the officers when they were revealed to him.

[17] P.C. Gould arrived in her cruiser. She barreled toward Mr. Zain to provide real-time locational updates to her fellow officers to compensate for the blind spots.

[18] Constables Amoateng and Gamey parked their cruisers closer to the event centre. They got out of their cars with their respective C8 rifles, to add some precision marksmanship to the police response. P.C. Gamey dropped to one knee, aimed at Mr. Zain’s “centre mass”, and fired. P.C. Amoateng did the same from a standing position. One or both officers struck Mr. Zain. He fell to the ground, struck in the arm and the buttock.

[19] Mr. Zain was immediately descended upon by multiple officers. He received first aid, and was told the reasons for his arrest. Emergency Medical Service personnel were soon at the scene. Mr. Zain was taken to the hospital.

[20] None of the attendant officers were injured. All were separated and isolated to preserve the SIU investigation.

[21] On arrest, Mr. Zain was found in possession of a black extended magazine with ammunition, in his pocket. On the ground was the firearm he used. It was a Colt .45 Auto caliber semi-automatic handgun, with an empty silver magazine. The gun is a prohibited firearm.

[22] Mr. Zain was not, and never has been, licensed or authorized to possess a firearm. The Colt firearm was not registered.

[23] On November 25th, 2020, two days after the shooting, the police executed a search warrant at Mr. Zain’s Toronto home. In his bedroom, the police found and seized four ounces of cocaine, a digital scale, a vacuum sealer with a box of clear plastic sealable bags, 33 rounds of .45 caliber ammunition, eight rounds of 9 mm ammunition, and a Mossberg bolt action .22 rifle, model 802 Plinkster. The rifle was a non-restricted firearm. It was found leaning against a dresser in the bedroom.

The Victim Impact Information

[24] A Victim Impact Statement was provided by P.C. Andrew Gardner. In his Statement he recounts his emotions during the three minutes and 30 seconds in which he and his partners were shot at multiple times, believing that Mr. Zain was trying to kill them. He describes it as frightening beyond anything he had experienced. Nonetheless, once Mr. Zain was in the officers’ custody, P.C. Gardner applied a tourniquet to the bleeding arm of the man who had just put the officers’ lives at risk. In P.C. Gardner’s words, he did it because it was his duty, “[t]his is what makes us different.”

The Circumstances of Mr. Zain

[25] I was provided with limited information about Mr. Zain’s background. He was 23 years old at the time he committed the offences. He is now 25 years old. He grew up in Scarborough, completed high school, and attended one year of a community college program.

[26] He has worked at various jobs, including as an automobile detailer, a salesman, and for a contractor in the home building industry. I am told that he does not have a drug or alcohol problem.

[27] Mr. Zain has a previous youth and criminal record, dating back to 2014, for a variety of offences. Most notably, it includes convictions for flight from police, and obstruct police.

[28] Mr. Zain has been in custody since his arrest on November 23rd, 2020.

[29] In his submissions at the conclusion of the sentencing hearing, Mr. Zain apologized to those he had victimized.

The Positions of the Parties

[30] Crown and defence counsel jointly submit that Mr. Zain should be sentenced to a total of eight and a half years in jail, less pre-sentence custody calculated at one and a half to one. They agree that this sentence takes into account the mitigating factors, including the harsher than usual conditions of Mr. Zain’s pre-trial custody, while reflecting the significant aggravating factors, most particularly that the individuals Mr. Zain shot at were police officers. Defence counsel suggests only one alteration, and that is that the concurrent sentence for flight from the police should be less than that for the discharge firearm offences.

[31] Counsel also agree there should be lifetime s. 109 prohibition orders, DNA orders, a three year driving prohibition order, and a forfeiture order.

The Principles of Sentencing

[32] 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.

[33] Section 718 of the Code 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.

[34] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the chief organizing principle in determining a fit sentence: see, R. v. Parranto, 2021 SCC 46, at para. 10.

[35] 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, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders.

[36] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “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”. 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: see, R. v. Lacasse, 2015 SCC 64, at paras. 58 and 143.

Aggravating and Mitigating Factors

[37] This case involves particularly aggravating factors. They include:

1. Mr. Zain deliberately shot at multiple individuals who he knew were police officers engaged in the execution of their duties.
2. He engaged in a shoot-out with the officers, firing not just one, but at least six shots. He did not stop shooting until the officers shot him in order to apprehend him.
3. He chose to fire a gun multiple times in an area that was accessible to members of the public, outside a condominium building and then an event centre located near a major roadway in York Region. It was pure luck that no member of the public was present at the time.
4. Mr. Zain had the potential to fire additional shots at the officers, as he had more ammunition available in the magazine in his pocket.
5. It is clear from items seized at his home that he was involved in the drug trade. Additional weaponry including ammunition and a non-restricted firearm were found there.
6. Mr. Zain has a previous criminal record that includes offences involving flight from, and obstruction of, police officers.
7. Trial and appellate court jurisprudence makes it clear that the proliferation of unlawfully possessed handguns and ammunition in the Greater Toronto Area is an ongoing problem. For years, judges have spoken out about the presence of illegal firearms in the community. In 2010, the Court of Appeal for Ontario in R. v. Brown, 2010 ONCA 745, at para. 14, referred to handguns as “an all too prevalent menace in the Greater Toronto Area.” That continues to be the case more than a decade later.

[38] In mitigation, I consider the following:

1. Mr. Zain pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offences. His pleas were not early pleas, nor were they entered in the face of weaknesses in the Crown’s case. Nonetheless, they saved court time that could be allocated to other matters.
2. Although not a youth, he was relatively young when he committed the offences.
3. The conditions of his pre-sentence custody have been harsher than usual, involving lockdowns due to staff shortages at the detention centre, confinement during the COVID-19 pandemic, and a lack of physical rehabilitation to address the after-effects of his injuries.

Analysis

[39] Of the offences to which Mr. Zain pleaded guilty, the most serious is that of discharge of a prohibited firearm with intent to endanger life. It carries a mandatory minimum punishment of five years in jail for a first offence, and a maximum punishment of 14 years in jail. The five year minimum reflects Parliament’s view of the gravity of the offence.

[40] It is of particular significance that the lives Mr. Zain intentionally endangered were those of police officers. The words of Doherty J.A. in R. v. McArthur (2004), 184 O.A.C. 108, are apt. At para. 49 he wrote:

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].

[41] While rehabilitation is an objective of sentencing that is always to be encouraged, there is very little in the information before me to suggest Mr. Zain’s rehabilitative potential. Unless he commits to following a different life path, he will leave the penitentiary no better a person than when he went in. The choice is his to make.

[42] The principles of denunciation, general and specific deterrence, and protection of the public from Mr. Zain are the predominant principles of sentencing in this case. Mr. Zain has shown himself to be a person who does not think twice about carrying and using a loaded handgun, with the very real prospect that others will be wounded, maimed, or killed by him. Most especially, he has demonstrated that he has no respect for the lawful authority of police officers whose duty it is to protect members of the community from those like him, who selfishly put the safety of others at risk in pursuit of their own interests. It is no exaggeration to say that the events of November 23rd, 2020, came very close to ending with the killing of one or more police officers in the execution of their duties. That no lives were lost is a reflection of the proficiency of all officers involved, along with a measure of good fortune.

[43] In R. v. Bellissimo, 2009 ONCA 49, the Court of Appeal observed that the range of sentence for serious gun-related offences is between seven and 14 years in jail. The sentence jointly suggested by Crown and defence counsel falls within that range.

[44] I accept the joint submission, with one caveat. The concurrent sentence for the offence of flight from police will be somewhat lower than that suggested.

Conclusion

[45] Mr. Zain, please stand.

[46] I sentence you as follows:

• On count 4, discharging a prohibited firearm with intent to endanger the life of Police Constable Andrew Gardner, seven and a half years in jail, less pre-sentence custody which I treat at one and a half to one as 38 and a half months, leaving a sentence to serve of 51 and a half months, or four years and three and a half months.
• On count 5, discharging a prohibited firearm with intent to endanger the life of Police Constable Bradley Man, four years and three and a half months concurrent to the sentence on count 4.
• On count 6, discharging a prohibited firearm with intent to endanger the life of Police Constable Waylon Pigott, four years and three and a half months concurrent to the sentence on count 4.
• On count 8, unauthorized possession of a non-restricted firearm, one year in jail consecutive to the sentence on count 4.
• On count 9, flight from police, three years in jail concurrent to the sentence on count 4.
• On count 10, possession of cocaine, one year in jail concurrent to the sentence on count 4.

[47] To be clear, the total sentence is 8 and a half years in jail, less pre-trial custody credited as 38 and a half months, leaving a sentence to serve of five years and three and a half months in the penitentiary.

[48] On each count there is a DNA order. There is a s. 109 firearms prohibition order for life on counts 4, 5, and 6, and a driving prohibition for three years on count 9. I order forfeiture as requested by the Crown.

[49] A copy of these Reasons will be provided to the correctional authorities.

Justice M.K. Fuerst

Released: January 11, 2023

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.