R. v. Zaban, 2024 ONSC 2704

COURT FILE NO.: CR-21-50000595-0000 DATE: 20240514

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - FAZAL Zaban

Counsel: P. Zambonini and C. MacNeil, for the Crown A. Newman and P.J.I. Alexander, for Mr. Zaban

HEARD: May 2, 2024

KELLY J.

Reasons for SENTENCE

[1] Mr. Fazal Zaban was charged with the first-degree murder of Mr. Dung Le on August 19, 2019. At trial, Mr. Zaban admitted that he shot and killed Mr. Le while they were both inside Mr. Le’s car in the context of a drug and firearms deal. However, he testified that he acted in self-defence and did not intend to kill Mr. Le.

[2] I found that Mr. Zaban’s use of force in discharging the firearm eight times in Mr. Le’s car was excessive. However, I found that Crown counsel had not proven intent to kill beyond a reasonable doubt. As such, Mr. Zaban was acquitted of murder. He was convicted of manslaughter.

[3] Mr. Zaban now appears before me for sentencing. Crown counsel seeks a sentence of 15 years to life imprisonment. Counsel for Mr. Zaban submits that the appropriate sentence is 10 to 12 years’ less credit for pre-sentence custody. All counsel agree that Mr. Zaban should be subject to the following ancillary orders: a weapons prohibition pursuant to s. 109 for life and the provision of a sample of his DNA.

[4] For the reasons set out below, I sentence Mr. Zaban to 13 years’ imprisonment. He has served the equivalent of 7 years in pre-sentence custody. As such, Mr. Zaban will be required to serve a further 6 years in prison. He will be subject to a s. 109 order for life and he will provide a sample of his DNA.

Overview of the Facts at Trial

[5] A few days before the shooting, Mr. Zaban entered a drug and firearm transaction with “Trini” who was out of the country at the time. Mr. Zaban agreed to purchase 20 pounds of marijuana, a Tec-9 machine gun and a magazine for $20,000. The deal was orchestrated by “Fat Boy”, Trini’s “minion” in Canada. Mr. Le was in the area when the transaction occurred. It went smoothly. Thereafter, Mr. Zaban sold 10 pounds of marijuana and the TEC-9 machine gun to B.I. The success of this drug and firearms transaction led to the second deal, which resulted in Mr. Le’s death.

[6] The second transaction was scheduled to occur on August 19, 2019. Again, the arrangements were made by Mr. Zaban and Trini. Mr. Zaban intended to purchase 10 pounds of marijuana as well as a Glock firearm with a drum clip, that would hold 50 rounds of ammunition. Mr. Zaban was to pay $18,000 for all three items.

[7] While the location of the deal changed several times during the day in question, Mr. Zaban eventually ended up in the Tim Horton’s Plaza located at Weston Road and the 401. Also present at the time were Fat Boy and Mr. Le. The plaza was busy with members of the public coming and going from various businesses.

[8] While awaiting the delivery of the marijuana, Glock, and drum clip, Messrs. Zaban and Le got into Mr. Le’s car. I concluded, at trial, that Mr. Zaban attended at the drug deal with both a loaded firearm (a .45 calibre Glock handgun with a magazine loaded with 13 bullets) and a loaded magazine (that had an additional five bullets). While I am uncertain as to how the shooting incident started, I found that Mr. Zaban discharged the firearm eight times, starting in the parking lot and continuing as the car traveled from the Tim Horton’s Plaza into one across the street with a McDonald’s restaurant. Three bullets hit Mr. Le: two to his leg and one to his arm. The bullet hit an artery in Mr. Le’s arm, causing his death. I found that discharging the firearm eight times was excessive and I convicted Mr. Zaban of manslaughter.

[9] After the shooting, Mr. Zaban exited Mr. Le’s car. He put the still-loaded firearm in his Gucci satchel with the loaded magazine. He walked across the street and discarded the Gucci satchel at a nearby embankment by the 401. He fled the scene. After making travel arrangements, Mr. Zaban left the country. He went to Jamaica two days after the shooting. He returned two months later and was arrested at the airport when he did so.

Mr. Zaban’s Background

[10] Mr. Zaban was born and raised in Guyana. He testified that his family was very poor. He attended school until grade nine and has obtained his high school diploma since being incarcerated awaiting trial on this charge.

[11] Mr. Zaban testified that he became involved in drug trafficking shortly after leaving school in grade nine because he liked nice things. He would buy and sell marijuana and cocaine. On occasion, he also bought firearms. He testified that until the time in and around these offences, he had not sold firearms. He agreed that he has discharged firearms in the past – at a firing range.

[12] Mr. Zaban acquired many convictions as a youth which include the following:

Date	Offence	Disposition
1991-01-30	Fail to comply with recognizance.	Probation for 3 months
1991-03-27	Assault.	Probation for 12 months and 30 hours of community service work
1991-06-13	Possession of property obtained by crime over $1000.	42 days open custody (time served) and probation for 12 months
1991-09-26	Theft over $1000.	7 days of secure custody
	Attempt to obstruct justice.	As above, concurrent
1991-11-15	Break, enter and theft.	7 months of open custody and probation for six months
1991-11-21	Possession of property obtained by crime.	60 days of secure custody consecutive to the sentence above
1992-01-08	Fail to comply with recognizance.	1 day of secure custody (time served)
1992-01-16	Possession of a weapon.	3 months of open custody, 18 months of probation and firearms prohibition for 3 years

[13] Mr. Zaban has the following entries on his adult criminal record:

Date	Offence	Disposition
1994-10-20	Assault	30 days (time served) and one day
1996-11-01	Trafficking in a narcotic	163 days (time served) and 2 years’ imprisonment
	Trafficking in a narcotic	2 years, concurrent
	Possession of a narcotic for the purpose of trafficking	As above, concurrent
2005-04-22	Possession of a prohibited or restricted firearm with ammunition	1 year imprisonment and mandatory weapons prohibition order pursuant to s. 109
	Possession of counterfeit money	3 months concurrent
2007-07-03	Possession of a Schedule II substance	2 days (pre-sentence custody) and $250 fine
2017-03-06	Kidnapping	3 years (time served) plus 1 year imprisonment and a mandatory weapons prohibition pursuant to s. 109
	Forcible confinement	As above, concurrent
	Robbery	As above, concurrent
	Assault with a weapon	As above, concurrent
	Assault	As above, concurrent

[14] At his sentencing hearing for the kidnapping offences in 2017, Mr. Zaban addressed the court and stated as follows:

It took me 40 years to realize that crime does not pay at all and I just want to be a family man for my family and be a positive role model for my kids. And you will never see me in a courtroom again.

[15] In addition to earning an income from drug trafficking and while not incarcerated, Mr. Zaban worked in various lawful capacities. When he obtained parole following the drug trafficking conviction in 1996, he got a job at Oil Changers. He worked there for a few years and was promoted to manager of two of its locations.

[16] Mr. Zaban’s lawful employment also included owning and operating his own recording studio (76 Music). He attended classes at Long & McQuade where he studied music production. He received a certificate of completion and continued to produce music with artists. He lost his business when he was arrested for the kidnapping offences in 2014.

[17] Mr. Zaban also owned a company called 76 Renovations. He was skilled at electrical work, plumbing, flooring and framing.

[18] At the time of the incident, Mr. Zaban was living in a four-bedroom home in Brampton with his common-law spouse and their seven-year-old son. Mr. Zaban has a twenty-nine-year-old son and a grandchild as well.

[19] When given an opportunity to address the court during the sentencing hearing, Mr. Zaban expressed remorse for his conduct. He apologized to Mr. Le’s family as well as his own.

Pre-Sentence Custody

[20] Mr. Zaban was arrested for this offence on October 9, 2019. He has been in custody since that time. He was initially imprisoned at the Toronto South Detention Centre (“TSDC”). Since March 2023 he has been at the Toronto East Detention Centre (“TEDC”).

[21] Mr. Zaban completed his high school education while incarcerated. He also enrolled in various courses including life skills programs for substance use, anger management, supporting relationships, goal setting, problem solving, managing stress, seeking and maintaining employment, discharge planning, changing habits, being an effective father, budgeting, recognizing healthy relationships and understanding feelings.

[22] Mr. Zaban advised that, since being incarcerated on this occasion, he recognizes that he has an addiction to alcohol. As a result, he has taken addictions counseling through Alcoholics Anonymous. He believes that his addiction played a role in his life choices.

[23] Mr. Zaban kept track of his lockdowns while in custody. He believes that he was subject to a total of 1,123 days of lockdown since being incarcerated (1,063 at the TSDC and 60 at the TEDC). The jail records show a total of 704 lockdown days.

[24] Mr. Zaban was incarcerated before and throughout the COVID-19 pandemic. Mr. Zaban provided an affidavit that detailed his experiences before and during the pandemic. I will simply outline some of the repercussions of the pandemic on Mr. Zaban:

a. The number of lockdowns increased. b. If an inmate tested positive for COVID, they were placed in segregation and the rest of the range would be placed in medical lockdown that would be indefinite (lasting for two weeks or more). Because of the repercussions of being diagnosed with COVID, inmates were reluctant to report their symptoms for fear of the range being put into lockdown. On occasion, inmates who did report their symptoms were beaten for doing so. Mr. Zaban believes that he had COVID on two occasions while incarcerated but did not report it for fear of the repercussions to himself and to the inmates on his range. c. Mr. Zaban had dental issues that could not be addressed because of the pandemic. For example, he could not attend for gum surgery and tooth cleanings that were recommended because those services were discontinued during the pandemic. d. Programs were cancelled during the pandemic as were in person visits. Mr. Zaban went for more than two years without seeing his family in person.

[25] The conditions of the jails themselves, were also described by Mr. Zaban in his affidavit. Again, I will simply summarize them here:

a. There were infestations of silverfish, spiders and rats. b. Mr. Zaban moved into a unit that was filthy. It smelled like urine and human waste. There was feces smeared on the wall. It took four days for Mr. Zaban and his cellmate to clean it. Mr. Zaban developed breathing problems as a result and as such, requires the use of a puffer. c. While at the TSDC, Mr. Zaban did not go outside. The “yard” was described as “an enclosed area on the range with a mesh covering over the top for fresh air”. d. Violence was rampant, including beatings and stabbings. Gangs controlled much on the range including access to phones. This could not be reported for fear of retaliation. Mr. Zaban was assaulted, resulting in a concussion and trauma. e. While at the TSDC, Mr. Zaban described that he began to struggle with depression, anxiety, and feelings of worthlessness. He then started feeling fear, anger and frustration. He described it as feeling like “a raindrop in the ocean”. He felt that he had no hope. f. Mr. Zaban was transferred to the TEDC in March 2023. Initially, he was put on the maximum-security range where he had to sleep on the floor. He could not use the phone. Eventually, he was transferred to the minimum-security range. g. At the TEDC, the conditions were described as “bad”: showers with mould and rust; faulty plumbing; lack of privacy during toilet use; infrequent clothing and bedding changes; infestations of insects and rats; temperature variations (cold in winter, hot in summer). h. Access to fresh air was rare. On average, Mr. Zaban got outside four times a month. Sometimes he got outside less frequently.

[26] Six weeks before Mr. Zaban’s trial was set to begin in January 2023, his counsel was appointed to the Ontario Court of Justice (Stephen Bernstein J.). As such, he spent an additional year in pre-sentence custody as no lawyer could take on his matter on such short notice.

[27] Various letters of support were provided on behalf of Mr. Zaban. Their contents may be summarized as follows:

• Elaria McPhera [1] – Brighter Dayz Community Reintegration Organization: Brighter Dayz offers services that will give offenders the ability to become productive members of society. They advise that Mr. Zaban had been an active participant, having completed many programs. He displayed an avid interest in learning self-control and how to develop self-esteem. He showed an eagerness to learn.
• Maya Samila – Addictions Counsellor, Social Work and Rehabilitation Services: Mr. Zaban was described as an active participant who has been patient and understanding. He was described as “engaged”.
• Megan MacDonald – Amadeusz: Amadeusz supports inmates to create positive change in their lives through access to education, community supports and exceptional care. Mr. Zaban worked on his high school diploma and achieved it in July 2023. He was described as dedicated, capable, and engaged. He took initiative and asked for help when he needed it. He maintained a positive attitude.
• Terence Neblett – Urban Rez Solution Enterprise: Mr. Zaban participated in the Black Employment Specialist Program. Mr. Neblett described him as “focused on bettering himself, through reading to improve his vocabulary and his knowledge base”. The letter refers to Mr. Zaban’s new focus on life, “one which he views life from a different perspective and values life and what it has to offer to all”. He is determined to be “a better version of himself” and has put together a plan of action to return to his pro-social modes of employment.

[28] Various family members provided letters as well. They may be summarized as follows:

• Ms. Pamela Brij is Mr. Zaban’s partner. Together, they have one son. She has known Mr. Zaban for 20 years. She has been there through the “many ups and downs”. She describes Mr. Zaban as “caring and softspoken”. He makes her laugh and he has stood by her. She describes him as an “amazing dad”. While incarcerated, he has tried to remain in their lives. She is “positive” that Mr. Zaban is remorseful. He has told her that he wants to do better. She believes that with the support of his family and friends, they will keep Mr. Zaban on a “healthy path to a brighter future”.
• Mr. Zayon Zaban is Mr. Zaban’s youngest son. He is currently 13 years of age. He misses his dad. He describes his father as loving and caring. He cannot wait for his dad to come home so that they can be together. Although he appreciates that they cannot change the past, he is looking forward to a future with his father.
• Mr. Ashton Zaban is Mr. Zaban’s elder son. He describes his father as his “pillar of strength” and his “guiding light”. Mr. Zaban’s absence has left a void for both he and his son (Mr. Zaban’s grandson). He describes his father as kind, compassionate and a man of integrity. He places the needs of others above his own. Mr. Zaban is described as a “constant source of strength and inspiration”. He states that Mr. Zaban’s “positive influence knows no bounds”.
• Ms. Shazena Fagan is Mr. Zaban’s sister. She describes her brother as a “kind, generous man who has a loving partner and son at home, waiting for the day of his return”. She believes that Mr. Zaban has proven that he wishes to make positive changes in his life. She will be supportive of him upon his release. She also believes that Mr. Zaban “feels tremendous remorse for the mistakes he has made and the impact these mistakes have had on the victim and the victim’s family”.
• Mr. Alfaz Zaban is Mr. Zaban’s eldest brother. He describes his brother as someone who is always willing to help family. He knows that Mr. Zaban “was in trouble in the past and his last trouble was a very serious one but Fazal has realized that he is much older now and just wants to abide with the law and spent [the] rest of life with his family”. He is “sure” that Mr. Zaban will be a “good law-abiding citizen going forward”.
• Mr. Abdool and Ms. Jessiman Zaban are Mr. Zaban’s parents. Like the other family members, they miss Mr. Zaban and “will take all precautions to make sure he follows the correct path going forward”. They believe that he is “older and wiser” now.

Victim Impact Statements

[29] There were no Victim Impact Statements filed. However, I had the benefit of hearing from Mr. Le’s daughter-in-law during the trial. She witnessed the incident and testified about her observations and relationship with her father-in-law.

The Legal Framework: Sentencing

[30] The following is a summary of the legal principles applicable in sentencing Mr. Zaban.

i. General Principles

[31] In determining an appropriate sentence for Mr. Zaban, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

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.

[32] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2 (a)(i) to (vi) of the Criminal Code; the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2 (c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2 (d) and (e)). [2]

ii. The Range: Manslaughter

[33] The maximum sentence for manslaughter is life imprisonment. However, the spectrum of manslaughter convictions can range from an “unintentional and almost accidental killing” to “those approaching murder at the opposite extremity”. [3] The varying circumstances in manslaughter cases gives rise to the wide variation in the sentences imposed. [4]

[34] Manslaughter is a serious offence because it involves the taking of a life and would normally attract a lengthy sentence. [5] In order to arrive at an appropriate sentence, the sentencing judge is required to consider the context in which the manslaughter occurred and as a result, is case-specific to the facts of the offence and the offender. [6] Provocation is a mitigating factor that must be taken into consideration in sentencing. [7]

[35] Schreck J. provided an overview of the authorities that suggest the ranges for sentencing a person convicted of manslaughter in R. v. Kerr, 2023 ONSC 3892. [8] At para. 29, he found as follows:

Manslaughter is an offence that can be committed in a wide variety of ways and, as a result, the sentences that are imposed for the offence vary greatly: R. v. Ali, 2018 ONSC 5536, at para. 31. A number of authorities from the Ontario Court of Appeal and this court suggest that there are three broad ranges of sentence, as summarized in R. v. Wight, 2022 ONSC 5137, at para. 43, and R. v. Smith, 2022 ONSC 3800, at paras. 26-32:

• Six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential: R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864; Kwakye, at paras. 5-6.
• Eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim: R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 14; R. v. Clarke (2003), 172 O.A.C. 133 (C.A.); R. v. Cleyndert, [2006] O.J. No. 4038 (C.A.), at para. 12.
• Twelve to 15 years in cases where the most serious aggravating factors are present, such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or a planned home invasion involving beating of the victims: R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Tahir, 2016 ONCA 136, at para. 2, aff'g [2012] O.J. No. 6449 (S.C.J.); R. v. Atherley, 2009 ONCA 195, at para. 4.

[36] Counsel provided sentencing precedents in cases involving convictions for manslaughter. [9] I do not intend to refer to all of those authorities here, but as the sentencing court, I have considered them.

iii. Other Considerations: Pre-sentence Custody

[37] It is agreed that Mr. Zaban should be given credit for the time he has spent in pre-sentence custody pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26. [10]

[38] In certain circumstances, harsh pre-sentence incarceration conditions can be relevant in the determination of an appropriate sentence: see R. v. Duncan, 2016 ONCA 754. [11] The approach to be taken in considering the harsh conditions of pre-sentence incarceration was clarified by Doherty J.A. in R. v. Marshall, 2021 ONCA 344: [12]

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

[39] In light of Marshall, 2021 ONCA 344, the practice of assigning a credit of a specific number of days or months to punitive conditions of pre-trial custody is not to be encouraged. However, Doherty J.A. stated at para. 53 that, “quantification is not necessarily inappropriate” so long as it does not skew the calculation of the ultimate sentence. [13]

Analysis

[40] The objectives of denunciation, deterrence and isolation must be given paramount consideration in this case. Other considerations such as rehabilitation are not to be ignored but in the case of Mr. Zaban, must assume a subordinate role. [14]

[41] I am satisfied that the circumstances of this case situate Mr. Zaban in the most aggravated range of 12 to 15 years described by Schreck J. in Kerr, 2023 ONSC 3892. I find that there are several serious aggravating factors that, in my view, justify a sentence in that range and needed to protect our society:

a. Mr. Zaban’s history shows that he is involved in serious criminality involving drugs and firearms and has been for years. b. Mr. Zaban has a lengthy record, including entries for crimes of violence. c. Despite having been convicted and sentenced for possessing a loaded prohibited or restricted firearm, he continued to do so. d. At the time of this offence, Mr. Zaban was bound by a lifetime order prohibiting him from possessing firearms. That did not deter him from doing so. e. The firearm that Mr. Zaban possessed and used in the shooting was a .45 calibre Glock handgun. It was loaded with an overcapacity magazine designed to hold 13 bullets. f. The Glock firearm had a selector switch on the back of it that allowed the firearm to be discharged in automatic or semi-automatic mode. Obviously, it is a lethal weapon regardless of the mode in which it is operated. g. Mr. Zaban also attended at the drug and firearms deal with an additional magazine that could be used in the Glock. It contained five additional bullets. h. Eight bullets were fired during the struggle. Mr. Le was shot in the leg twice and once in his arm. The shot to his arm severed a main artery which resulted in his death. i. The plazas were both busy at the time, with members of our community accessing the Tim Horton’s in the first plaza and the McDonald’s restaurant in the second plaza. It is a miracle that no one in the area was hit by one of the bullets discharged by Mr. Zaban. j. When he left the area after the shooting, Mr. Zaban rid himself of the still-loaded firearm and additional magazine in the Gucci satchel adjacent to an on ramp to the 401. Any member of our community could have retrieved it from there. This, of course, further put members of our public at risk. k. Despite having received the equivalent of a penitentiary sentence for drug trafficking and kidnapping, Mr. Zaban has not been deterred from committing crimes and specifically crimes involving violent criminal conduct. l. Mr. Le was 61 years of age at the time of his death. He was a husband, father, father-in-law and grandfather at the time.

[42] I find the following to be the mitigating factors:

a. Mr. Zaban has a loving and supportive family. b. Mr. Zaban’s trial was delayed one year through no fault of his own as his lawyer was appointed to the Ontario Court of Justice, mere weeks before it was scheduled to begin. c. Mr. Zaban has been subject to horrific conditions in the TSDC and the TEDC due to both lockdowns and being incarcerated during the COVID-19 pandemic. He has been subject to inhumane conditions as set out in his affidavit. d. Despite the conditions in the institutions, Mr. Zaban has made wise use of his time by obtaining his high school diploma and participating in all available courses to assist him in leading a pro-social life when he is released. e. Mr. Zaban has worked in ventures that have met with success in the construction and music businesses. He was also successfully employed having been promoted to a management position at Oil Changers. f. Mr. Zaban expressed remorse for his conduct, apologizing to Mr. Le’s family, his own family, and our community.

[43] Mr. Zaban is a mature recidivist. He has several prior convictions for violence and drug dealing. He is in the business of buying and selling drugs and firearms. He appears to have little (or perhaps no) regard for the court system and the safety of our community.

[44] Mr. Zaban’s history shows that he continues to possess firearms which is a scourge on our society. Firearms are manufactured for the sole purpose of seriously injuring and/or killing people – exactly the purpose for which Mr. Zaban used it on this occasion. Firearms are a significant threat to our society and continue to be a problem to the extent that exemplary sentences must be imposed. [15]

[45] While Mr. Zaban is a veteran member of the criminal underworld and has been given the equivalent of penitentiary sentences in the past, he has yet to be imprisoned in one. This will be his first visit to the penitentiary, so I bear in mind the direction of Rosenberg J.A. in R. v. Borde (2003), [16] that a “first penitentiary sentence should be as short as possible”. That said, the jump principle is not applicable in light of the seriousness of this offence, including the moral blameworthiness of Mr. Zaban.

[46] In my view, without taking into account the especially difficult conditions under with Mr. Zaban spent his 4.5 years imprisoned, a fit and effective sentence for him would have been 15 years imprisonment. However, his sentence should be adjusted for the exceptionally harsh conditions under which Mr. Zaban spent his time in pre-sentence custody (i.e., the “Duncan” credit). I find that Mr. Zaban has experienced conditions that are more difficult or punitive than the restrictions normally associated with pre-sentence detention.

[47] There has been hardship suffered due to the lockdowns and conditions in the jail, most of which were the result of staff shortages. I have said it before and I echo the sentiments of my colleagues, that although the message is being sent to our government that they must properly staff institutions to permit inmates to reside in humane conditions, that issue has remained, for the most part, unresolved. [17] The ongoing unacceptable treatment of inmates in the detention centres is a significant mitigating factor.

[48] Mr. Zaban served some of his pre-sentence custody during the global COVID-19 pandemic. The circumstances of COVID-19 adversely affected the conditions of imprisonment. There were increased risks for those incarcerated in any institution. This observation has been made by several jurists, including Harris J. in R. v. Kandhai, 2020 ONSC 1611. [18] Again, this is a significant mitigating factor.

[49] While the Duncan credit is properly considered a mitigating circumstance rather than a credit against sentence, it is my view that quantification can be a useful tool if used with appropriate care. Quantification is not a precise mathematical calculation but is simply an approximation of how much of a sentence reduction is appropriate in Mr. Zaban’s circumstances while imposing a sentence that is proportional and individualized. [19]

[50] While I appreciate that there is a difference in the record of how many days Mr. Zaban spent in lockdown (based on his calculation and that of the institutions), I do not consider this to be significant since the calculation is not meant to be a precise computation of “credit” but simply a way of roughly approximating how much of a sentence reduction is warranted as a mitigating factor. [20]

[51] While I would have been inclined to impose a sentence of 15 years’ imprisonment, I have taken the circumstances of Mr. Zaban’s pre-sentence incarceration into consideration to impose a sentence of 13 years’ imprisonment. A sentence of 13 years’ imprisonment is a fit and substantial one that reflects the circumstances surrounding Mr. Zaban’s conviction for manslaughter.

[52] Mr. Zaban has spent 1,682 days in custody since October 19, 2019 (or, 56 months). [21] Enhanced at 1.5 days for each day spent in pre-sentence custody (pursuant to Summers), Mr. Zaban will be given credit for 2,523 days (or 84 months) [22]. This leaves a sentence to be served by Mr. Zaban of 72 months (156 months - 84 months = 72 months or 6 years).

The Sentence Imposed

[53] Mr. Zaban is sentenced to 13 years’ imprisonment (156 months) for the offence of manslaughter. Mr. Zaban will be given credit of 84 months (7 years). This requires that Mr. Zaban serve another 72 months or 6 years in custody.

[54] Mr. Zaban has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment. As such, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that Mr. Zaban be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, or explosive substance for life.

[55] Manslaughter is a primary designated offence within the meaning of s. 487.04(a) of the Criminal Code and accordingly, a DNA order is mandatory. Therefore, I direct that Mr. Zaban provide a sample of his DNA.

Kelly J.

Released: May 14, 2024

Footnotes:

[1] The name of the author was in handwriting only. I did my best to reflect it accurately in these reasons.

[2] See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773.

[3] R. v. Carrière (2002), 158 O.A.C. 36, at para. 10; R. v. Kehl, 2019 ONSC 7561, at para. 37.

[4] R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40.

[5] R. v. Head (1985), 10 O.A.C. 87.

[6] R. v. Simcoe (2002), 156 O.A.C. 190, at para. 24.

[7] R. v. Clarke (2003), 172 O.A.C. 133, at para. 6, citing R. v. Stone, [1999] 2 S.C.R. 290, at para. 237.

[8] 2023 ONSC 3892.

[9] For example, Crown counsel provided several cases in support of their position that included the following: R. v. Warner, 2018 ONSC 1799 and 2019 ONCA 1014; R. v. Danvers (2005), 201 OAC 138; R. v. Cheveldayoff, 2018 ONSC 6154; R. v. Barreira, 2021 ONCA 455; and R. v. Husbands, 2024 ONCA 155. Defence counsel provided several cases in support of their position that included the following: R. v. Kerr, 2023 ONSC 3892; R. v. Lee, 2021 ONSC 6704; R. v. Johnson, 2022 ONSC 5689; R. v. Surendran, 2020 ONSC 3378; R. v. Gill, 2011 ONSC 2598; R. v. Roberts-Stevens, 2019 ONSC 257.

[10] 2013 ONCA 147, 130 O.R. (3d) 80; aff’d 2014 SCC 26, [2014] 1 S.C.R. 575.

[11] 2016 ONCA 754, at para. 6.

[12] 2021 ONCA 344, at para. 52.

[13] 2021 ONCA 344, at para. 53.

[14] R. v. Carrière (2002), 158 O.A.C. 36, at para. 18.

[15] R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.

[16] (2003), , 63 O.R. (3d) 417 (C.A.), at para. 3.

[17] R. v. Persad, 2020 ONSC 188.

[18] 2020 ONSC 1611.

[19] R. v. Mojassam, 2022 ONSC 4951 and R. v. Bernard, 2021 ONSC 5817.

[20] Mojassam, 2022 ONSC 4951, at para. 113.

[21] For ease of the math, I have rounded this number up.

[22] For ease of the math, I have rounded this number up.