Court File and Parties

COURT FILE NO.: CR-21-0136 DATE: 20230425 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. V. Dana Millan and Patrick Celaj, Defendants

BEFORE: S.F. Dunphy J.

COUNSEL: Meghan Scott and Alexander Merenda, for the Crown Marianne Salih, for the Defendant Danna Millan Marco Sciarra, for the Defendant Patrick Celaj

HEARD at Toronto: January 30, 2023

Reasons for Decision – Sentencing

[1] On April 6, 2022 a jury convicted the defendant Danna Millan of kidnapping, acquitting her on three other counts (aggravated assault, robbery and uttering a death threat) arising out of a violent ordeal to which Mr. Jean Paul Castano was subjected for approximately two and a half hours on the night of February 1-2, 2020. Her co-accused Patrick Celaj was found guilty on all four counts.

[2] On May 12, 2022, I found that the Crown proved beyond a reasonable doubt the aggravating circumstance of a firearm having been used in the commission of each of the offences.

Circumstances of the Offences

[3] The circumstances of the offences are described at some length in the written reasons delivered in connection with my finding in relation to the use of a firearm: see R. v. Millan, 2022 ONSC 2869 (the “Gardiner Ruling”). Those findings form an integral part of my reasons for sentencing the two accused before me and I shall therefore try to repeat as little as possible of the facts reviewed at some length there. There are a number of minor errors in the version of those reasons that has been reported, most of which are plain and obvious. I do note that para. 47 refers to Mr. Castano not reacting to the presence of the gun when it was brought out when I meant to refer to Mr. Celaj. The error is reasonably clear in the context of the decision, but I wish to make that clarification here.

[4] The incident giving rise to the charges may broadly be described as comprising two phases. The first phase consists of the events that occurred inside Mr. Derek Rowe’s apartment up to the point where the decision was taken to take Mr. Castano from the couch in Mr. Rowe’s apartment to Mr. Zamaan Yusuf’s car. It was during this phase of the events that virtually all the physical violence to which Mr. Castano was subjected occurred and all his injuries were sustained. Those events are summarized in my earlier ruling, and I shall only reference here the catalogue of injuries Mr. Castano sustained as a result of the continuous assaults upon him by the men in the room (including Mr. Celaj):

a) a wound to the side of his head above the ear resulting from the blow from behind with the gun by Mr. Yusuf that required eight stitches to close;

b) large, visible bruises on both ears and caked blood visible in his left ear;

c) the imprint of a gun muzzle on his scalp just beside his left ear;

d) several smaller cuts on the back and left side of his head;

e) visible bruising around both eyes, particularly visible on the left eye;

f) a “fat lip” with several cuts visible to the inside of his upper lip;

g) a cut just below the nail on his left index finger caused by a clumsy attempt to remove his fingernails with pliers while he was held down in a chair;

h) numerous scratches and gouges on his upper back including one more than six inches in length;

i) another long scratch/gouge on his upper thigh;

j) an apparent bite mark on his lower thigh; and

k) significant swelling to the soft tissue around his jaw area of sufficient severity that the hospital scanned for possible bone fractures (there were none).

[5] Mr. Castano believed that his jaw had been broken (it had not in fact been broken) and the severe pain inflicted by the blows he received to his face and jaw left him in significant pain for weeks afterwards.

[6] Three of the four charges for which the jury convicted Mr. Celaj arose out of this first phase of the incident – aggravated assault, robbery, and death threats (this last charge comprising events that occurred in both phases of the incident). Ms. Millan was acquitted of all charges arising out of the first phase of the incident. This requires me to infer that she did not have a sufficient level of prior knowledge of Mr. Yusuf’s plans for the confrontation with Mr. Castano to permit a conclusion that she participated in the robbery, death threats or aggravated assault either as a principal or as an aider.

[7] The second phase of the incident may be described as beginning with the defendants deciding to lead Mr. Castano to Mr. Yusuf’s car, driving the car for a little over 90 minutes, and ending with Mr. Castano being left in need of medical assistance and only partially clothed on a snowy night at a deserted Oakville marina. Once again, those events are described in my earlier ruling, and I shall not repeat my summary of the evidence again here.

[8] Although she was not a party to the three offences that occurred in Mr. Rowe’s apartment (robbery, aggravated assault, and death threats), Ms. Millan was present for and witnessed all the violent events that gave rise to Mr. Celaj’s conviction for those three offences. She saw the gun when it was brandished repeatedly, heard the demands for money, saw Mr. Castano stripped of his valuables and saw Mr. Yusuf hit Mr. Castano from behind with the gun resulting in the head wound that needed medical treatment. I entirely reject Ms. Millan’s evidence that she was surprised and shocked by the violent unfolding of events that she witnessed or that she took active steps to demand that Mr. Yusuf call it off. Having observed all that she observed inside Mr. Rowe’s apartment, she decided of her own free will to help Mr. Yusuf and Mr. Celaj when the three of them took Mr. Castano and transported him away in the second phase of the incident.

[9] The objects of the “kidnapping phase” of the incident were complementary to the first phase of the incident. They were: (a) to secure Mr. Castano’s silence and (b) to ensure that Mr. Castano would raise the funds demanded by Mr. Yusuf. Those demands diminished during the course of the incident from an initial $10,000 figure to $3,000 by the time Mr. Castano was set free in Oakville. Ms. Millan actively participated in attempting to secure both goals, having advised Mr. Castano in Mr. Rowe’s apartment that he must find the money and having played the leading role in developing the cover story for his injuries that Mr. Castano was “persuaded” to provide to the authorities. The threats that she witnessed in Mr. Rowe’s apartment, punctuated by pointing a firearm at him on multiple occasions, continued to operate to terrorize Mr. Castano throughout and to coerce his cooperation with the demands made upon him.

[10] Mr. Castano was dropped off at a deserted marina in Oakville at a distance from any houses or source of assistance, in a weakened and shaky state, in need of medical assistance to treat the wound on his head and with minimal clothing. This happened on a snowy, early February night.

[11] Immediately after releasing Mr. Castano, Ms. Millan drove with Mr. Yusuf back to Mr. Rowe’s apartment to retrieve the cell phone she had left behind and then, while being driven home by Mr. Yusuf, returned the frantic calls that she had received from “Mixxie” (the girlfriend of Mr. Castano’s father who had been calling trying to locate Mr. Castano). Upon reaching Mixxie, Ms. Millan denied any knowledge of Mr. Castano’s whereabouts and told Mixxie the cover story that she had earlier fed to Mr. Castano. She did not know then whether Mr. Castano had managed to find help.

[12] Mr. Celaj played an active role in the initial assault of Mr. Castano at the door, the attempts to secure Mr. Castano to the chair, in beating him while he was in the chair and in tackling and beating him when he tried to run away. He was not alone – the other men present also participated. There is however no evidence that he actually said anything while he was inside the apartment – it seems unlikely that he would have done so given his efforts to disguise his identity from Mr. Castano who could and eventually did recognize him. The death threats were spoken by others, primarily Mr. Yusuf. Mr. Celaj did not make any death threats directly and his responsibility for them is as an aider or a common purpose participant. Similarly, there is no evidence that Mr. Celaj ever actually held the gun that was an integral part of the robbery, the death threats and the aggravated assault visited upon Mr. Castano. Mr. Celaj’s responsibility for its use in the commission of these three offences is similarly that of an aider or a common purpose participant.

[13] Mr. Castano for his part managed to walk to the house nearest to the marina and obtain help. While he initially stuck to the story that Ms. Millan had persuaded him to tell, his resolve to tell that lie was short-lived and police soon arrived, learned what really happened and began their investigation. Mr. Castano was ultimately sent home with his father in the pre-dawn hours.

[14] Meanwhile, a different set of police officers, unaware of Mr. Castano’s report to police in Oakville, answered a call about a disturbance at Ms. Millan’s apartment, which she shared with her mother, in the early morning hours. The disturbance in question was caused by Mr. Castano’s father who had gone to Ms. Millan’s apartment after leaving the hospital to talk to her mother about what her daughter had done to his son. Ms. Millan’s mother called police instead of admitting Mr. Castano’s father given the loud and angry state he was in. Mr. Yusuf, Ms. Millan, and Mr. Celaj were arrested a few days later.

[15] Mr. Yusuf pleaded guilty to his charges shortly after the preliminary inquiry ended and received a sentence of five years arising out of the incident involving Mr. Castano and a further sentence of just under two years in respect of a charge for possession of cocaine for the purpose of trafficking arising from the cocaine found in his possession when he was arrested.

Circumstances of the Offenders

[16] Ms. Millan is 25 years old with no prior criminal record. She had just turned 22 years old days before the incident took place. She completed her high school in Toronto and started but did not complete a post-secondary programme at Humber College. At the time of the incident, she had a full-time job in a retail store at Toronto Pearson Airport.

[17] Ms. Millan met Mr. Castano studying math in summer school in 2014 between Grades 10 and 11. They were both from Columbia and became friends. They stayed in touch via social media when he returned to his home in Columbia between annual visits to Toronto.

[18] With the exception of a period of time after her arrest when her release conditions required her to live with her sister, Ms. Millan has lived with her mother both before and since the incident. She managed to find employment while under house arrest release conditions and was on maternity leave from that position at the time of the sentencing hearing. She aspires to attend a legal studies program at Seneca College when her legal troubles are behind her.

[19] She began a romantic relationship with Mr. Yusuf in October 2019, but that relationship ended in the aftermath of their arrest.

[20] At the time of trial, Ms. Millan had just learned that she was six weeks pregnant, and she delivered her child in November 2022. The father of the child is not Mr. Yusuf, nor anyone related to this case.

[21] Mr. Celaj is 26 years old and also without a prior criminal record. He was born in Albania and came to Canada in 2002 with his family. He resides with his parents and his younger brother.

[22] After graduating from high school, Mr. Celaj pursued post-secondary programmes in business management and liberal arts but has not completed a degree. He completed a programme in hairdressing in 2019 and since that time – interrupted to some degree by the pandemic and his house-arrest conditions since 2020 – he has been working to complete his apprenticeship in that field.

[23] He described himself in the pre-sentence report as a “quiet kid” and it appears that his pursuits prior to the incident included going to the gym and socializing with a small group of friends. Mr. Yusuf, who had been a friend since high school, was part of this group of friends at the time.

[24] Mr. Celaj has maintained a long-term relationship with his girlfriend since prior to the incident in 2020.

Issues to be Decided

[25] Ms. Millan and Mr. Celaj were both convicted of kidnapping for which s. 279(1.1)(a.1) of the Criminal Code prescribes a minimum sentence of four years’ imprisonment where, as here, a firearm was used in the commission of the offence. Mr. Celaj was also convicted of (i) robbery for which s. 344(1)(a.1) similarly prescribed, at the time, a minimum sentence of 4 years where a firearm was used in the commission of the offence; [^1] (ii) aggravated assault for which s. 268(2) prescribes a penalty of up to 14 years’ imprisonment without a minimum; and (iii) uttering death threats for which s. 264.1(2)(a) prescribes a penalty of up to 5 years imprisonment without a minimum.

[26] Both defendants brought applications challenging the constitutional validity of the minimum sentences imposed by s. 279(1.1)(a.1), Mr. Celaj adding a challenge to the minimum sentence in s. 344(1)(a.1). Ms. Millan also challenged the limitation on granting a conditional sentence for kidnapping prescribed, at the time, by s. 742.1 (f)(iv) of the Criminal Code. [^2] Both defendants took the position that the impugned provisions of the Criminal Code violated their rights under s. 12 and s. 7 of the Canadian Charter of Rights and Freedoms and could not be saved by s. 1 thereof. [^3]

[27] At the hearing of the Charter applications, the Crown advised that the sentences it would be seeking in the case of both defendants exceed all the minimum sentences prescribed and that, were I to agree with the Crown’s sentencing submissions, the constitutional validity of the impugned provisions of the Criminal Code would not require determination by me in this case. I heard the arguments of both sides on the Charter issues in December 2020 and took the matter under reserve pending the completion of the sentencing hearing which was completed on January 31, 2023. My final decision was reserved to this day as the first day on which the parties were all available to receive it.

[28] The recent Supreme Court rulings in R. v. Hilbach, 2023 SCC 3 and R. v. Hills, 2023 SCC 2 direct that a Charter challenge in respect of a prescribed minimum sentence should proceed in two stages with the first stage involving a determination of whether a fit and proper sentence in the particular case is below the prescribed minimum. It is only where this is the case that it is necessary to proceed to the second stage of the inquiry to determine whether the prescribed minimum sentence is grossly disproportionate having regard either to the facts of the case or of a reasonable hypothetical. I shall therefore first proceed to determine a fit and proper sentence for both defendants without regard to the impugned minimum sentence provisions. In light of those determinations, I shall consider the validity of the impugned provisions only if the fit and proper sentence for one or both defendant falls below the prescribed minimum. However, before determining the sentences, I address the issue of Mr. Castano’s victim restitution request.

Victim Restitution Request

[29] During the course of sentencing submissions, the Crown learned that Mr. Castano wished to pursue a claim for restitution of the value of goods stolen from him during the robbery or their value as against the two defendants before me. A Statement of Restitution signed by Mr. Castano and dated January 30, 2023 (the same day as the sentencing hearing) claimed $2,000 for “hospitalization and emergency room”, $700 for the value of the stolen bracelet and charms, $2,900 for the stolen gold rings and $300 for the stolen winter jacket for a total of $5,900. No receipts or other evidence of loss was provided although Mr. Castano had testified about the nature and value of the stolen items to some extent during the trial.

[30] Mr. Castano’s request took all the parties by surprise. I am of the view that this particular claim arrived before me too late and with the benefit of insufficient evidence to permit me to grant the requested remedy.

[31] There is nothing to suggest that any reasonable case for restitution could be advanced as against Ms. Millan since the phase of the incident for which she was found guilty – the kidnapping – occurred after the robbery and all the physical injuries requiring medical treatment had been sustained. While this same argument cannot be advanced by Mr. Celaj, there is no suggestion that he received any of the stolen goods or participated in this incident for material gain. No such request appears to have been advanced as against Mr. Yusuf for whose benefit – directly or indirectly – the evidence indicates that the thefts and assaults were undertaken.

[32] There is also no evidence as to the value of any of the goods taken beyond the widest possible approximation. While there is evidence that Mr. Castano was a non-resident of Ontario at the time for whom a bill for uninsured emergency medical services may have been prepared, there is no evidence that such a bill was in fact delivered or, if delivered, ever paid.

[33] I decline to make an order of restitution as requested.

Positions of the Parties

(a) Crown re: Ms. Millan

[34] The Crown sought a sentence of 6 years for kidnapping in the case of Ms. Millan subject to a net pre-sentence custody credit of 129 days (including lockdown credit and a 1.5 times gross-up). During the course of argument, the Crown conceded that perhaps six or seven months of mitigation “credit” might be attributable to the house release conditions to which Ms. Millan was subject for over two and a half years utilizing a one for four ratio.

(b) Ms. Millan

[35] Ms. Millan submitted that a fit and proper sentence on the kidnapping charge would be a conditional sentence of two years less a day coupled with a period of probation of up to two years.

[36] In support of this position, counsel for the defendant underlined that Ms. Millan was not a party to the robbery, the death threats, or the aggravated assault of Mr. Castano in any capacity. Indeed, the jury, having been instructed on all the applicable forms of participation for these three crimes, returned a verdict of not guilty. That position is of course correct.

[37] Counsel for the defendant also urged upon me the conclusion that Ms. Millan was but a minor participant in the crime of kidnapping through willful blindness and that the aggravating feature of the use of a firearm was in reality only a factor in the very last moments of the kidnapping incident. In this regard, she relied on the Gardiner Ruling which did not rule out Mr. Yusuf having accessed the gun from the trunk of his car after the car arrived at the Oakville marina: see para. 44. This available conclusion from the evidence, it was argued, reduces the scope of Ms. Millan’s role and moral blameworthiness in the offence, placing it at the lower end of the spectrum. Counsel for the defendant urged a mitigation “credit” pursuant to R. v. Downes (2006) 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.) for the onerous nature of Ms. Millan’s release conditions higher than the one for four ratio suggested by the Crown. She suggested a ratio of 1 for 3 as more reasonable in all the circumstances including a consideration of the cramped living conditions, the lack of access to fresh air and the 24-hour surveillance, among others. She also submitted that Ms. Millan’s support letters demonstrate a very low risk to re-offend and a strong pro-social network. Her role in the affair was, counsel submitted, a very subordinate one warranting a sentence significantly below that of Mr. Yusuf who received a global sentence of five years [^4] after pleading guilty following the preliminary inquiry.

(c) Crown re: Mr. Celaj

[38] The Crown sought a global sentence of eight years for Mr. Celaj and something in the order of about six to seven months mitigation “credit” attributable to the house release conditions to which Mr. Celaj was subject. The Crown submitted that none of the charges should be stayed as duplicative per the principle set out in Kienapple v. R., [1975] 1 S.C.R. 729, but agreed that it would not necessarily object to the staying of the threatening death charge on this basis.

(d) Mr. Celaj

[39] Mr. Celaj submitted that the aggravated assault and threatening death charges should both be stayed as included offences in the offence of robbery for which he was also convicted. He further submitted that a global sentence of four years was a fit and proper sentence.

[40] Mr. Celaj submitted that Mr. Yusuf’s role as the primary offender in this incident ought to result in his own sentence being fixed somewhat below the five-year sentence received by Mr. Yusuf given the latter’s significantly greater degree of responsibility in the offences and the lack of any evidence that Mr. Celaj benefitted in some way from the crimes. While the firearm is an aggravating factor, counsel for the defendant submitted that there is no evidence that Mr. Celaj was aware of its presence in advance or that he ever touched it himself. Mr. Celaj, it was submitted, is someone I can be highly confident will not re-offend.

Mitigating Circumstances

(a) Ms. Millan

[41] I conclude that Ms. Millan’s sentence must take into account the following mitigating circumstances:

a) she was a young (22 years old at the relevant time) first-time offender;

b) she has no other outstanding charges; and

c) with one exception that I shall address, she has been complying with her house arrest release conditions since her initial release post-arrest.

[42] I was asked to conclude that Ms. Millan’s participation in the crime of kidnapping was the product of willful blindness on her part and to assess her degree of culpability accordingly. It was nothing of the sort. She was not in the dark – willfully or otherwise – as to any of the context in which the crime of kidnapping occurred. She played a central role in it and was a direct, first-hand witness to all material aspects of the events that preceded it and that form its essential context. She witnessed the robbery, the repeated pointing of the gun at Mr. Castano, the assaults, and the demands for money. She knew of her boyfriend’s possession of the firearm throughout the second phase of the events – whether he kept it in the trunk of the car or on his person during the car ride to Oakville does not alter its role in the kidnapping. That firearm clearly continued to play a significant role in accomplishing the ultimate goals of the kidnapping phase of the incident, i.e. attempting to extract further funds from Mr. Castano and to cover-up of the earlier crimes. Ms. Millan continued to lie about her involvement in the events to Mixxie and to her mother later in the day in order to maintain the very fiction which she played so central a role in crafting. Her role in the kidnapping was not passive and subordinate – it was active and central.

[43] I have carefully reviewed the support letters filed by Ms. Millan at the sentencing hearing. I generally find that she appears – for the time at least – to be surrounded by a solid network of family and friends – that excludes Mr. Yusuf, a man whose influence undoubtedly played a significant role in Ms. Millan’s criminal behaviour. Her lack of any demonstrated insight into how she fell into the delinquent behaviour that led her to this juncture offers me only limited confidence in the solidity of her rehabilitation prospects.

[44] Lastly, I must address the mitigating circumstance of the terms of Ms. Millan’s release from custody under strict supervision. The Court of Appeal established in Downes that time spent out of custody but under stringent release conditions must be considered as a mitigating circumstance when arriving at a fit and proper sentence.

[45] Apart from Downes “credit”, the Crown has agreed that Ms. Millan is entitled to 73 days credit for pre-sentence custody grossed up to 110 days plus a further 19 days credit for the number of lockdowns to which she was subjected while in custody. Her net presentence custody credit will thus be fixed by common agreement at 129 days. I accept the parties’ joint submission in that regard.

[46] I agree that the conditions of Ms. Millan’s release were, initially at least, at or near the more stringent end of the spectrum of house arrest release conditions. She was required to reside with her sister who in turn undertook to arrange for a security camera to enable her sureties to monitor her while they were away from home and on condition that police could seize and inspect the security camera footage from time to time. She was allowed to leave the residence only for certain specified reasons such as medical or legal appointments or attending church and only in the company of a surety. [^5]

[47] After August 2020, her house arrest conditions were progressively relaxed and altered to accommodate reasonable requests made by her to pursue work or educational opportunities. Consent variations allowed her greater freedom to be outside the house in the presence of a surety or to attend work placements in connection with an online training course she followed. In February 2021, she was permitted to move out of her sister’s apartment to reside with her mother in roomier circumstances. She was able to resume and pursue to some degree a friendship with the man who became the father of her child. Following the birth of her baby in November 2022, her release conditions were relaxed further. This last variation was made while she was awaiting sentencing and resulted in only very modest restrictions continuing to apply. From November 2022, I see little basis to consider her bail conditions as warranting any material consideration as a mitigating circumstance given the relatively minor impact of the few restrictions that remained.

[48] Ms. Millan spent a total of just over two and a half years under some form of house arrest for which some mitigation credit must be factored in when determining her sentence. This observation must however be tempered by a recognition that (i) her release conditions were progressively relaxed to accommodate reasonable requests made by her and (ii) the period of the most restrictive house arrest conditions coincided with the period of general COVID-19 lockdowns affecting the population at large. There is no doubt that she did not enjoy the same liberties as someone released on their own recognizance but there can also be no doubt that she was able to pursue significant aspects of a normal life – education, employment, and romance – to some degree at least during the period of her release.

[49] Onerous bail conditions must be considered as a mitigating circumstance of course, but the logic of applying a specific numeric weighting to one mitigating circumstance but not to any other seems quite inconsistent and artificial to me. A fit and proper sentence is the product of a fair and balanced assessment of all the sentencing criteria applied in light of the circumstances of the offence and the offender and of all the aggravating and mitigating circumstances present.

[50] The Crown has suggested that a global allowance of something in the order of one day’s credit for every four days under house arrest would represent a reasonable approach. While I decline to apply a specific formula or number of days to this mitigating circumstance alone among all others, the overall impact of this particular mitigating circumstance can reasonably be said to fall in the general range suggested by the Crown and will be reflected in the sentence I arrive at.

(b) Mr. Celaj

[51] Mr. Celaj’s sentence must account for the following mitigating circumstances:

a) he is a first-time offender and was a relatively young man (23 years old) at the time of the offences for which he has been convicted;

b) he has no other outstanding charges and has also complied with fairly strict house arrest release conditions since his initial release post-arrest;

c) he benefits from a very strong, pro-social network of family and friends, and is in what appears to be a stable, long-term relationship; and

d) he has shown some positive if belated signs of accepting responsibility for his actions, demonstrating remorse, and showing insight into the behaviour.

[52] Some elaboration upon the latter two mitigating circumstances is necessary.

[53] Mr. Celaj testified at his own sentencing hearing and exercised his right to address me directly as to his sentencing. He expressed the shame he feels for his actions, a shame that was brought home to him when he was arrested in his parents’ home in front of them. He expressed deep regrets about his actions and remorse about the harm caused to Mr. Castano. He told me that he understood that he must face the consequences of his actions but wished to re-assure Mr. Castano that he need not live in fear of him in the future.

[54] I wish to state at the outset of this part of my analysis that I applaud Mr. Celaj for the sentiments he expressed and do not doubt his sincerity in expressing them. However, as laudable as Mr. Celaj’s expressions of shame, remorse, regret, and acceptance of responsibility certainly are, my assessment of this evidence must be tempered by three other considerations.

[55] First, it cannot be said that Mr. Celaj’s acceptance of responsibility, remorse, or insight into his behaviour pre-dates his arrest. In the time frame between the incident and his arrest, text messages to his girlfriend reveal a young man who appeared to treat the whole matter rather lightly or even boastfully. The events of the night seemed to him as being “like a movie” the next day as he described to his girlfriend finding all the blood on his jacket and trying to clean it up. He also told his girlfriend about hearing that Mr. Yusuf’s mother suggested that he (Mr. Celaj) had landed “mighty blows” that night in terms suggesting he found this remark quite funny. He expressed satisfaction to her that Mr. Castano had gotten what he deserved. Remorse, to the extent it finally came to Mr. Celaj, required the catalyst of being arrested in front of his family and spending a period of time in pre-trial detention.

[56] Second, the remorse expressed by Mr. Celaj was accompanied by a dose of self-justification that bears some hallmarks of an after-the-fact reconstruction. His letter suggested that he was motivated at least in part by the desire to “make sure things wouldn’t escalate to the extreme”. Suffice it to say that if Mr. Celaj harboured such thoughts anywhere in his mind at the relevant time, he managed to thoroughly suppress them the moment Mr. Castano walked in the door of Mr. Rowe’s apartment. Mr. Celaj did not put a brake on anything – he was among the first to join the fray and he did not pull back at all until the sight of Mr. Castano bleeding and falling to the floor after being hit from behind with the gun by Mr. Yusuf appears to have brought the physical violence phase of events to an abrupt end. Events that night could easily have taken a turn for the worse at any time – there is no sign that Mr. Celaj in fact fulfilled the tempering role I am now assured he intended to play. Retrospectively justifying one’s actions is a natural human reflex. I point it out but do not condemn it so much as acknowledge it and suggest to Mr. Celaj that he give that aspect of his epiphany further reflection.

[57] Third, to the degree that his letter and testimony frankly accepted responsibility for his actions, that acceptance of responsibility did not extend to the point of actually pleading guilty or otherwise sparing the victim of the crime the ordeal of having to re-live it. He was entitled to a trial and suggestions that invoking that right are somehow an aggravating circumstance are entirely out of place.

[58] Genuine remorse – and I do believe that Mr. Celaj was being sincere with me – is not an evolution in the development of this man to be treated lightly, however many warts may come with it. To the contrary, it augurs well for his rehabilitation prospects. It does not carry the same mitigating weight as a guilty plea might have done, but it is a very positive development all the same and one that I think is entitled to significant weight along with the other mitigating circumstances. I am trying to express to Mr. Celaj that I am granting him a very considerable credit for these developments even if the sentence may appear to him to be a severe one.

[59] I have reviewed the various support letters assembled by Mr. Celaj and the comments in the pre-sentence report. I have no hesitation in concluding that the close-knit network of family and friends whose full support he has, coupled with his (belated) acceptance of responsibility for his actions both augur very well for Mr. Celaj’s rehabilitation prospects. Notwithstanding the three remarks I made regarding the late-breaking nature of Mr. Celaj’s remorse, I find that this mitigating circumstance should receive a somewhat enhanced weighting in this case.

[60] How much mitigation credit ought Mr. Celaj to receive by reason of the relatively onerous conditions of his release?

[61] I shall not repeat here the comments I made about this mitigating circumstance in relation to Ms. Millan. The duration and evolution of Mr. Celaj’s release conditions do not parallel Ms. Millan’s experience precisely. He spent fewer total days in custody than she and thus somewhat longer under house arrest conditions. However, the overall impact of the house arrest conditions imposed on him was globally similar to the impact of those imposed upon Ms. Millan on her. My observations in relation to Ms. Millan are applicable here as well with the caveat that the restrictions and their impact upon Mr. Celaj were somewhat lighter but their application was somewhat longer. Overall, the Crown agreed that a similar degree of mitigation “credit” in respect of house arrest release conditions ought to apply to both Mr. Celaj and Ms. Millan. I concur in that conclusion and shall be applying a similar degree of weight to this mitigating circumstance in arriving at a fit and proper sentence for Mr. Celaj.

Aggravating Circumstances

(a) Ms. Millan

[62] I have already found that the use of a firearm was an aggravating circumstance in the commission of this crime and shall not repeat the reasons for that conclusion here. Obviously, the use of a firearm in the commission of this offence is a very significant aggravating circumstance.

[63] The Crown urged me to find that the prior close personal relationship between Ms. Millan and Mr. Castano is an aggravating circumstance. The Crown advanced the idea that she used this relationship to lure Mr. Castano to the confrontation in Mr. Rowe’s apartment. I cannot agree with the suggestion, at least not as it was made. Aggravating circumstances must be proven beyond a reasonable doubt. While there is no doubt that Ms. Millan “lured” Mr. Castano to Mr. Rowe’s apartment that night in the narrow sense of having extended the invitation to Mr. Castano to go out with her that night, the jury’s verdict precludes any finding that Ms. Millan knowingly lured Mr. Castano to the apartment with knowledge that assault, death threats and robbery were on the agenda, and with the intent to facilitate this.

[64] While I cannot find the close relationship between Ms. Millan and the victim to be an aggravating circumstance for precisely the reason advanced by the Crown, I do find that Ms. Millan’s close personal relationship with Mr. Castano can be considered an aggravating circumstance in the kidnapping charge given the context in which the kidnapping occurred. As noted above, she was an active participant in the kidnapping, doing so after having witnessed the events inside the apartment. Her status as a friend of Mr. Castano and a friend of his family added very considerable punch to the demands for money that continued to be made during the kidnapping phase. Inside the apartment, Mr. Castano was beaten and subjected to insistent demands for money punctuated with a firearm pointed at him on numerous occasions. Ms. Millan stepped in to participate in the kidnapping of Mr. Castano and continued to stress to him the importance of paying the money demanded from him. This did not happen in a vacuum but in the context of what she knew had just occurred. Her status as a friend of Mr. Castano’s family added considerable additional weight to the terror visited upon Mr. Castano for obvious reasons. This was not an accident – it was a feature. She knew where to find him and where to find his entire family. For the kidnapping to achieve its goals, Mr. Castano was intended to be terrified. Ms. Millan’s voluntary participation ensured that this is exactly what would and did happen.

[65] I utterly reject any suggestion of passive participation in the kidnapping or willful blindness. Ms. Millan played a leading and active role in the kidnapping.

[66] An additional if related aggravating aspect of the circumstances of this crime was the circumstances in which Mr. Castano was finally abandoned. He was left visibly shaken and wounded, only partially clothed in a secluded waterfront location in falling snow on a winter’s night without means of communication. Her actions that night betrayed nothing beyond minimal empathy (i.e., giving him water or draping the hoodie loosely on his head). Had Mr. Castano lacked the strength to walk to the nearest (but nevertheless distant) visible house to seek help or had he stumbled en route, he may well have frozen to death that night.

[67] The isolation of the spot chosen to release Mr. Castano was clearly a deliberate part of the overall objective of impressing upon him the need to maintain silence about the affair. Ironically, if the potential presence of security cameras is what was said to have dissuaded Mr. Yusuf from dropping Mr. Castano off at a hospital, the trio succeeded only in driving 90 minutes to find an immaculately illuminated parking spot at an Oakville marina in the full view of a good quality security camera trained on that precise spot where they parked and took him out of the car.

(b) Mr. Celaj

[68] I previously found that the Crown proved beyond reasonable doubt the use of a firearm as an aggravating circumstance applicable to all the offences for which Mr. Celaj has been convicted.

[69] The Crown suggested that I find as additional aggravating circumstances:

a) the evidence of Mr. Celaj’s participation in planning the incident;

b) the circumstances of Mr. Castano’s abandonment at a secluded and distant location in winter, in a state of undress and in need of medical care;

c) the use of brass knuckles; and

d) the significant injuries suffered by Mr. Castano as a consequence of the aggravated assault in which Mr. Celaj directly participated.

[70] In the circumstances, I concur with the Crown as to all aggravating circumstances except the use of the brass knuckles which I am not satisfied has been proven beyond a reasonable doubt.

[71] Mr. Castano believes that Mr. Celaj wore brass knuckles for some or all the time that the latter was beating him with his fist. No brass knuckles were found when Mr. Celaj’s apartment was searched upon his arrest. While I have no expert evidence on the topic, it seems to me that brass knuckles, if used by Mr. Celaj as alleged, should have inflicted other serious open wounds of the sort left by the gun as opposed to the swelling and bruising and inside-the-lip cuts visible in the photographs of Mr. Castano’s injuries. I am fortified in my skepticism regarding the use of brass knuckles by the fact that Mr. Celaj complained to his girlfriend of pain in his hand that impeded his ability to drive the next day. This frank admission made to his girlfriend suggests to me that the blows he delivered were with his bare fists. Were brass knuckles involved, blows of that force should have left far more serious head injuries than were visible in the photos. Those photos are more strongly suggestive of injuries left by bare knuckles than brass knuckles. I cannot find that the use of brass knuckles as a weapon in assaulting Mr. Castano has been proven beyond reasonable doubt.

[72] There was significant evidence of Mr. Celaj participating with Mr. Yusuf in planning the ambush of Mr. Castano that day if not earlier. I am also satisfied that violence was always an integral object of the events planned. I find the aggravating circumstance of planning and premeditation to be made out beyond a reasonable doubt.

[73] Mr. Castano was severely beaten and was left still visibly weakened and tentative on his feet at the marina as can be viewed in the security camera images of him being led away from Mr. Yusuf’s car in Oakville. I have described in relation to Ms. Millan my conclusion that the circumstances in which Mr. Castano was abandoned is an aggravating circumstance in relation to the commission of the crime of kidnapping. The same conclusions apply in the case of Mr. Celaj.

[74] The nature and severity of the injuries sustained by Mr. Castano during the first phase of the incident is an aggravating circumstance proven by the Crown beyond reasonable doubt. There was extensive evidence regarding the degree of injury suffered by Mr. Castano which I have reviewed earlier in these reasons. I shall review the long-term psychological impact of the incident upon him in the next section which considers his victim impact statement.

Victim Impact Statement

[75] Mr. Castano provided a written victim impact statement which underscored many of the impressions gleaned by me from his description of a truly nightmarish experience at the hands of people he considered friends – including his erstwhile close friend Ms. Millan – during his viva voce testimony at trial. Some instructive quotes from the statement include:

a) “I seriously cannot express how much this kidnapping affected my entire life and has only given me fear”;

b) “The impact of this, has left me so vulnerable and scared. I was happy before … Now, I feel insecure and see the worst in people”;

c) “I have almost zero trust and I am paranoid and terrified to even step out”;

d) “I feel like I can no longer be free and enjoy being out in the open, I barely have a social life”;

e) “I start overthinking ways to escape from anywhere I am in case something happens. When I am around people, and I hear stories that trigger what I went through, … my first reaction is to get away, to run, to hide”; and

f) “I am still stuck in the moment. I also fear very much that this could happen to anyone in my family, especially since these individuals know where I have lived and know my close ones. I feel like I do not only have to watch my back but also watch out for my family members.”

[76] The aftershocks from this traumatic experience will continue to gnaw at its victim long after the perpetrators of these crimes have served the sentences imposed. Mr. Castano will continue to suffer from this incident for many years to come.

Analysis and Discussion

(a) Sentencing range in precedents

[77] The task of fixing a fit and proper sentence involves a consideration of a variety of circumstances in the light of the sentencing principles in s. 718 and following of the Criminal Code. While the process is anything but formula-driven, sentencing ranges derived from other leading cases can provide guidance as to an appropriate starting point.

[78] The case of R. v. Brar, 2014 BCCA 175, 355 B.C.A.C. 199 involved a kidnapping over a 24-hour period motivated by a desire to compel the victim to return some money he allegedly owed. The victim was kidnapped, blindfolded, tied to a chair, and assaulted over a period of many hours to pressure the victim into restoring the claimed funds and he was ultimately released by the side of the highway. The appellant Mr. Brar was an active party to the offence but was not considered the ringleader. While the duration of the event was longer, the case has many points of similarity with the present case.

[79] The Court in Brar suggested the examination of a non-exhaustive list of criteria for assessing the gravity of the particular kidnapping offence on the spectrum of kidnapping cases. The listed criteria at para. 23 of Brar include:

a) the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim;

b) the extent to which there is planning and premeditation;

c) the length and conditions of the confinement;

d) the extent to which there is violence, torture or significant physical injuries;

e) whether third parties are threatened;

f) whether guns are used;

g) whether there is gang involvement;

h) whether the kidnapping occurs in the course of the commission of another offence; and

i) the circumstances in which the kidnapping ends.

[80] All these criteria save for gang involvement are present to some degree in this case, although not evenly as between Ms. Millan and Mr. Celaj.

[81] Mr. Yusuf wanted Mr. Castano to pay more than just the value of the goods stolen in Mr. Rowe’s apartment and the terror induced by the ordeal was intended to secure his cooperation in fulfilling that aim. Extortion was thus one of the ultimate goals of the kidnapping. Mr. Castano was only confined in the car for a relatively brief period – about 1 hour and 45 minutes – but this was done when he needed medical help and was already in a state of terror from the events of the previous 45 minutes. The kidnapping was the final act in a series of violent events that were planned at least generally by Mr. Yusuf and Mr. Celaj. There was considerable violence in the first phase of the incident. While that violence cannot be laid at the feet of Ms. Millan, the kidnapping she became a part of came in a context that carried with it the implicit threat of a renewal of that violence at any time. Further, the earlier violence had subdued Mr. Castano and left him with little capacity for further resistance. Mr. Celaj was an active participant in the application of violence in the period prior to the kidnapping phase. Firearms were used here. The resolution of the kidnapping – the release of Mr. Castano in the extreme circumstances described – was a further aggravating factor. The application of the Brar criteria to the present case places this case at or near the more serious end of the spectrum for both Mr. Celaj and Ms. Millan but with uneven application.

[82] The court in Brar considered that the range of sentence for a planned kidnapping was 5 to 10 years.

[83] In R. v. Cantrill, 2021 BCSC 1652, the court sentenced three co-defendants involved in a kidnapping where firearms were not involved, and the motive included extortion. The court applied the Brar factors as a basis for its analysis. The “ringleader” got a sentence of 10 years; a second co-accused who was the “muscle” received 9 years; and a third co-accused without a criminal record, and with an Indigenous background, children, strong community support, who expressed remorse and did not participate in the assaults received a sentence of 6 years.

[84] The case of R. v. Zebedee (2006), 2006 ONCA 22099, 81 O.R. (3d) 583 (C.A.) involved offences including kidnapping, aggravated assault, and death threats in the context of the offenders seeking to collect on allegedly unpaid debts in connection with narcotics transactions. Some of the offenders being sentenced were relatively youthful offenders with family responsibilities and were under the influence of the “ringleader”. Their sentences were reduced on appeal to 10 years in total of which 6 years were attributed to the kidnapping.

[85] R. v. Jones, 2012 ONCA 609 was a sentence appeal on a kidnapping case where a firearm was used and discharged with intent and the appellants pled guilty mid-trial. The sentence initially imposed for aggravated assault, discharging a firearm and kidnapping was nine years plus an additional one year for use of a firearm, exceeding the Crown’s request by one year. The sentence was reduced on appeal to nine years total and the court commented that no error was made in failing to apply a shorter sentence of a youthful offender.

[86] The case of R. v. Siddiqui, 2019 ONCJ 603 contains a very helpful and thorough canvassing of relevant precedents in this area. Mr. Siddiqui was a 19-year-old youthful offender at the time of the offence with positive rehabilitation prospects. On the other hand, he had a prior record and was on probation at the time of the offences. A sentence of six years for kidnapping with a firearm was imposed.

[87] In my view, these cases provide an appropriate indication of the range applicable to kidnapping cases both with and without a firearm and provide helpful guidance in the application of mitigating factors such as age and rehabilitation prospects. The range suggested by these precedents falls well within the sentences sought by the Crown in this case and many of the offenders considered were subject to a similar range of aggravating and mitigating circumstances.

[88] Both defendants suggested a number of precedents that would justify sentences closer to the range advocated for by each. The simple fact of the matter is that most of the precedents cited involved different offences. Further, those that did involve kidnapping applied, in arriving at a sentence, broadly similar sentencing ranges to those I have cited and to the ranges in the cases cited by the Crown. In R. v. Morrison-Lonie, 2013 ABCA 202, 553 A.R. 191, the Alberta Court of Appeal found that the global five-year sentence of which four years were allocated to kidnapping was not unfit. In R. v. Hardy-Fox, 2022 ONSC 2786 a kidnapping sentence of just under four years was handed down to a defendant who played a subordinate role in the scheme, assisted police after his arrest, pled guilty early, showed sincere remorse and had substantial mitigating factors including factors that must considered, per R. v. Gladue, [1999] 1 S.C.R. 688, when sentencing an Indigenous offender. While comparatively lenient relative to other precedents in this area, Hardy-Fox does not alter my view of the range applicable for offences of this nature. Of course, any review of sentencing ranges is but one of many factors to be examined when considering a fit and proper sentence in all the circumstances.

[89] The jurisprudence clearly establishes what common sense dictates; denunciation and deterrence are entitled to very significant weight in arriving at a sentence in kidnapping cases such as this, a goal which becomes still more pressing where a firearm is used. This does not mean that mitigating factors are thrust to the side. However, the case law considered many of the same aggravating and mitigating circumstances and is very broadly supportive of the sentencing position advocated for by the Crown. I make this observation always recognizing that no two cases are ever alike and the mix of aggravating and mitigating circumstances in each will confound any attempt to apply a formulaic approach to sentencing.

(b) Fit and proper sentence

(i) Ms. Millan

[90] The mitigating circumstances present here are entitled to very considerable weight. Ms. Millan is a first-time offender and was comparatively young at the time of the offence (and now). She has access to a strong pro-social family and social network that can assist in rehabilitation. However, these considerations cannot be applied to the exclusion of all others. The nature of the offence, her degree of responsibility and the aggravating circumstances present all require that denunciation and deterrence be given significant weight as primary goals of sentencing, particularly given the use of a firearm in the commission of this offence.

[91] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of this offence – kidnapping with the aggravating circumstance of a firearm – is significant and the degree of responsibility of this offender is high. Denunciation and deterrence, both general and specific, are entitled to a significant weight in a case such as this. Ms. Millan was not a passive participant in this crime – her role was both central and active.

[92] I do not concur that the parity principle requires a sentence for Ms. Millan that is significantly below the five-year sentence meted out to Mr. Yusuf for his role in these events. Mr. Yusuf pled guilty immediately after the preliminary inquiry, accepted full responsibility for his actions and, for his part at least, did all that could be done to spare the victim of this crime from having to relive the experience at trial. Ms. Millan cannot claim that mitigating circumstance and I have found no trace of remorse or genuine insight into her true degree of moral blameworthiness. She has accepted only minimal responsibility for her actions. On the other hand, the parity principle and the additional crimes for which Mr. Yusuf was convicted suggest that it would be difficult to envisage a sentence for the kidnapping offence alone that is greater than the sentence Mr. Yusuf received for kidnapping plus robbery, aggravated assault and death threats given his central role in each of them notwithstanding the mitigating credit he received for pleading guilty and accepting responsibility.

[93] Balancing all these considerations as fairly I can, I find that a sentence of four years and 3 months (51 months) is a fit and proper sentence. This recognizes the broad 5-to-10-year range that is appropriate for kidnapping crimes of this severity; Ms. Millan’s degree of responsibility and moral blameworthiness; the aggravating factors mentioned; but also the impact of the mitigating circumstances of her youth; her strong social network; her lack of responsibility for the violence, robbery or death threats that were made or inflicted upon Mr. Castano by others; her lack of a record; and the severity of the conditions applied to her release from custody for a period of two and a half years.

[94] Ms. Millan shall be entitled to a credit for pre-sentence custody as agreed between the Crown and defence of 129 days (as grossed up).

[95] Having determined a fit and proper sentence in the case of Ms. Millan that is greater than the prescribed minimum pursuant to s. 279(1.1)(a.1) of the Criminal Code it is not necessary to consider whether this provision violates ss. 7 or 12 of the Charter. The question is effectively moot in this case.

(ii) Mr. Celaj

[96] Mr. Celaj’s sentencing requires me to address as a preliminary issue the question of whether either the aggravated assault or threatening death charges ought to be stayed under the Kienapple principles. The indictment charged Mr. Celaj with robbery contrary to s. 343 of the Criminal Code. Section 343 defines robbery in terms that may loosely be described as stealing plus wounding or assaulting, whether before or after. Since the same indictment also charged Mr. Celaj with aggravated assault (Count 2), alleging aggravated assault by wounding, Mr. Celaj urges me to stay Count 2 pursuant to the principles in Kienapple. Mr. Celaj applies the same reasoning to Count 4 (threatening death) which he submits is also a form of assault and thus subsumed in the robbery charge.

[97] The Crown did not concede that death threats are a form of assault that can be subsumed in the robbery charge but said that it would not oppose staying that count pursuant to Kienapple. I have considerable doubts that Kienapple has any application to Count 4 on the facts of this case because death threats were uttered on two separate occasions, the last being at the Oakville Marina to dissuade Mr. Castano from going to police. The later threats were thus only very tangentially related to the robbery which had occurred earlier. However, the context of the kidnapping is necessarily part of the consideration of a fit and proper sentence for kidnapping in Mr. Celaj’s case. I do not consider that subsuming Count 4 into the kidnapping as an included offence or keeping it separate makes any material difference to the sentencing outcome either way and, given the Crown’s concession that it does not oppose a stay, I shall accede to the request of Mr. Celaj on this point.

[98] A stay shall issue in respect of Count 4, but it must be understood that nothing in that conclusion in any way precludes Mr. Celaj’s sentencing for kidnapping from taking the full context of that event – including the threats made as part of the incident – into account.

[99] In my view, the aggravated assault charge cannot be viewed as subsumed within the robbery charge to the degree that a stay of proceedings is warranted. It cannot be said that the robbery and the aggravated assault were in substance one crime in this case. The events in Mr. Rowe’s apartment had multiple objects – robbery was but one of them. Mr. Celaj’s role in the robbery was comparatively ancillary – he received none of the proceeds and did not directly take part as a principal in stealing anything. He did play an active part in punching Mr. Castano repeatedly about the head, face, and body, and in kicking him while he was on the floor. These actions are entirely separate and distinct crimes separate and apart from the robbery and vice versa. I would not stay Count 2 as requested.

[100] The application of the parity principle to Mr. Celaj requires some important distinctions relative both to Ms. Millan and to Mr. Yusuf. Mr. Celaj does not have the benefit of pleading guilty, nor does he have the benefit Ms. Millan can claim of not having participated in the robbery, aggravated assault, or death threats. All three of them had the same general profile of being youthful first-time offenders entitled to a similar degree of credit arising from the circumstances of their pre-trial release, but Mr. Yusuf’s sentence did not have to account for the same degree of mitigating circumstances.

[101] I find myself inclined to grant a fairly considerable degree of weight to Mr. Celaj’s remorse and acceptance of responsibility, late breaking as its expression is. Absent that factor, I should have arrived at a sentence much closer to the eight years suggested by the Crown.

[102] In my view a sentence of 4 years and 9 months (57months) in Mr. Celaj’s case represents the lowest sentence that reasonably balances the aggravating and mitigating circumstances present in this case. In arriving at this sentence, I am giving a similar degree of mitigating credit to the release conditions imposed on Mr. Celaj as was granted to Ms. Millan. A sentence nearing five years reflects a recognition of the additional blame attaching to Mr. Celaj for his added role in the first phase of the events relative to Ms Millan.

[103] Once again, the two-stage process prescribed by the Supreme Court in Hilbach and Hills requires me to decline to consider whether s. 279(1.1)(a.1) breaches ss. 7 or 12 of the Charter where, as here, I have determined a fit and proper sentence that is greater than the prescribed minimum sentence.

Disposition

[104] In accordance with the foregoing reasons, I pronounce the following sentence upon Ms. Millan: for Kidnapping (Count 1), four years and three months’ imprisonment.

[105] Ms. Millan shall be entitled to credit in respect of pre-sentence custody for a total of 139 days (73 days x 1.5 enhancement plus 19 days of credit re: lockdowns per R. v. Duncan, 2020 ONCA 791, 155 O.R. (3d) 64).

[106] In accordance with the foregoing reasons, I pronounce the following sentence upon Mr. Celaj:

a) For Kidnapping (Count 1), four years and nine months’ imprisonment.

b) For Aggravated Assault (Count 2), three years’ imprisonment concurrent to Count 1.

c) For Robbery (Count 3), three years’ imprisonment concurrent to Count 1.

d) Count 4 (Uttering Death Threats) is stayed pursuant to Kienapple.

[107] Mr. Celaj is entitled to pre-sentence custody credit of 19 days grossed up to 29 days.

[108] A 10-year weapons prohibition order pursuant to s. 109 of the Criminal Code and a bodily substances (DNA) order pursuant to s. 487.051 shall apply to both Ms. Millan and Mr. Celaj.

S.F. Dunphy J. Date: April 25, 2023

[^1]: Section 344(1)(a.1) of the Criminal Code has since been repealed as of the coming into force of An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15, s. 12 (“Bill C-5”), assented to on November 11, 2022. [^2]: Section 742.1 (f) of the Criminal Code was also repealed by Bill C-5, s. 14(2). [^3]: Mr. Celaj’s constitutional challenge of s. 344(1)(a.1) and Ms. Millan’s challenge of s. 742.1 (f)(iv) are now moot given both sections have been repealed. Only s. 279(1.1)(a.1) remains. [^4]: As mentioned earlier, Mr. Yusuf received a total sentence just short of seven years that included a sentence for possession for the purpose of trafficking cocaine found in his possession at the time of his arrest. Five years was the portion of the total sentence attributed to the charges arising from this incident. [^5]: I am aware that Ms. Millan breached her bail conditions in July 2020 even if, in the circumstances, the Crown exercised its discretion not to prosecute the breach. Ms. Millan decided to attend a job interview which resulted in a job offer on which she based her first application to court for a relaxation of her bail conditions. Her bail conditions clearly did not authorize absence from her home to attend the interview. The issue of the failure to abide by these conditions is entitled to some weight in considering Downes “credit” in particular since the breach came to light during the bail review application and the breach’s circumstances were taken into account when her conditions were revised at that time.