Court File and Parties
COURT FILE NO.: CR-22-30000494-0000 DATE: 2024-07-24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: His Majesty The King – and – Anthony Papilota
Counsel: Aitan Lerner, for the Crown Yonaton Eshetu, for the Accused
HEARD: March 15 and June 6, 2024
Reasons for Sentence
HIMEL J.
[1] Anthony Papilota entered a plea of guilty to charges of possession of a non-restricted firearm while knowingly not being the holder of a licence permitting such possession contrary to s. 92(1) of the Criminal Code of Canada, possession of a loaded restricted firearm without being the holder of a licence or registration contrary to section 95(1) of the Code and possession of a prohibited device, an over capacity cartridge magazine while knowingly not being the holder of a licence permitting such possession contrary to s. 92(2) of the Code. He had elected to be tried by a judge sitting alone.
[2] Mr. Papilota confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.
[3] Following the plea of guilty, I ordered that a pre-sentence report be prepared. It has now been completed and reviewed by counsel. Counsel have provided their submissions on sentence. The following are my reasons for sentence.
Factual Background
[4] Members of the Gun and Gang Task Force commenced an investigation of Thomas Papilota. Information provided by a confidential source advised that he was in possession of a firearm and that he resided at 19 Knotwood Crescent in the City of Toronto. The house is a two-level home with an attached garage. He was believed to reside in the basement of the dwelling.
[5] On February 15, 2022, officers conducted surveillance of the residence at 19 Knotwood Crescent and observed him exiting the residence through the side entrance. A motor vehicle registered to him was observed being parked by him in the driveway of 19 Knotwood Crescent. The vehicle was bearing Ontario licence plate AYYPAPI. After exiting the motor vehicle, he was observed entering the side entrance to 19 Knotwood Crescent. Police drafted a Criminal Code Telewarrant which was granted by Justice of the Peace R. Rerup for the residence and the motor vehicle. The search warrants had ancillary orders and a validation date of February 15, 2022, at 6:40 p.m. until February 18, 2022 at 9:00 p.m.
[6] On Wednesday, February 16, 2022, officers were conducting observations of the address 19 Knotwood Crescent and observed Mr. Papilota exit the house and get into his black Mercedes with licence plate AYYPAPI. A call was made to take him down and he was arrested without incident. Officers entered the unit using Mr. Papilota’s key and they located a female inside. She too was detained. She was identified as Monina Serquina. She identified herself as the girlfriend of Mr. Papilota.
[7] Police searched the residence and located in the bedroom closet sitting upright in plain view an unloaded Pump Action shotgun. They arrested Mr. Papilota and Ms. Serquina for unauthorized possession of a firearm. Further search of the house revealed a Glock 17 loaded with 9 x 9 mm luger ammunition under the pillow of the bed in the bedroom. Ammunition for the Glock 17 and the shotgun was located in the closet of the bedroom and seized. Documents in the name of Mr. Papilota were found in this location. Both Mr. Papilota and Ms Serquina were transported to 42 division for further investigation. Ms. Serquina gave a videotaped statement and was released without charges. Mr. Papilota was held pending a show cause hearing.
[8] On the basis of these facts and the admission of the defence, I found Mr. Papilota guilty of the offences charged.
Evidence on the Sentencing Hearing
[9] The pre-sentence report was filed as an exhibit and is referenced below. The defence filed a number of letters in support of Mr. Papilota. His close friend, Justin Lorenzana, described Mr. Papilota’s challenging upbringing and that he was raised in a harsh environment by a hardworking mother who provided for three other children and without a biological father in the picture. He described his friend as having “shown remorse and a sincere desire for personal growth.” Charles Luib, a friend of Mr. Papilota since childhood, also wrote that Mr. Papilota is a talented tattoo artist and that he manages a team at the shop. He says that his friend has learned from his mistake. Thomas Papilota’s mother wrote that Thomas is dedicated to his family, and she expressed concern if her son is sent to jail. She also says he has learned from his mistake.
[10] Jerikka Nahibuan, a physical therapist and co-founder of a multidisciplinary clinic, has known Mr. Papilota for over ten years. She says that he is regretful of his mistake and has learned his lesson. He has babysat for her son and is a support to her family. Matthew Cabrera describes Thomas Papilota as his best friend and says that Mr. Papilota is “a good person, with a kind heart and admirable qualities.” Monina Serquina is Mr. Papilota’s business partner and a friend and says that Mr. Papilota has learned from his mistakes and has regret for his actions. Negus Webster-Chan has known Mr. Papilota for five years and says that Mr. Papilota has positively impacted the lives of many others in the community. Ronyth Buenaventura writes that Mr. Papilota is her brother and that since he has been living with her, he has contributed much to the household. Finally, Krizzia Papilota, who is also a sister of Mr. Papilota, says that Mr. Papilota has learned his lesson and she writes: “Thomas is a successful tattooist, business owner, a loving brother, son, and a loving boyfriend to his soulmate. He has a lot of potential to succeed more, to do great things in life and I know if given the opportunity, he will 100% achieve his goals.”
[11] Mr. Papilota spoke at the sentencing hearing and expressed remorse for his actions. He apologized and said that he has learned from his mistakes.
Positions of the Parties
[12] Crown counsel submits to the court that an appropriate sentence in this case is one of three years of imprisonment. He argues that the objectives of denunciation and deterrence are met with this sentence. There is an increase in gun violence in the City of Toronto and having a loaded firearm is a dangerous blight on the city. Guns kill and such conduct must be deterred. In accordance with what the Supreme Court has said in R. v. Nur, 2015 SCC 15, a penitentiary sentence in the range of 3 to 3.5 years is an appropriate sentence for a s. 95 offence. Mr. Lerner says this submission takes into account all mitigating factors. The sentence also recognizes the guilty plea and that Mr. Papilota has taken responsibility for his actions.
[13] In his submissions to the court, Mr. Lerner says that he takes no issue with the mitigating factors such as that Mr. Papilota did not carry the guns in public and that in the continuum of cases involving possession of a loaded and an unloaded gun, Mr. Papilota could likely have applied for a gun licence since he did not have a criminal record.
[14] Crown counsel says the problem is not specific deterrence in the case of Mr. Papilota as he believes, based on what was said in the pre-sentence report and the letters of support, that this was an isolated incident. Furthermore, there was no suggestion that possession of the guns was connected to other criminal activity. However, the concern is general deterrence and denunciation.
[15] Mr. Lerner acknowledges that the option is available for a conditional sentence if the sentence imposed is less than two years. However, while Mr. Papilota did not have the guns out in public, he had them in his residence which had a basement apartment where he had a tattoo parlour. Those who visited were invited into the home where there was potential danger, and this is an aggravating factor. Having a second unloaded shotgun in his possession is also an aggravating factor.
[16] Crown counsel suggests to the court that if a conditional sentence is imposed, however, it should be in the upper reformatory range of sentence followed by a period of probation. Mr. Lerner confirmed that there were no incidents of breach and Mr. Papilota was fully compliant with the terms of his bail. In addition to the term of imprisonment, Mr. Lerner seeks a s.109 order for life and a forfeiture order for the guns and ammunition.
[17] Mr. Eshetu on behalf of the defence seeks a sentence of two years less a day served as a conditional sentence in the community followed by a period of two to three years of probation. He recommends that the conditions be house arrest for 12 months with exceptions for work and to purchase necessities once each week and a curfew for the second 12 months. He also submits that an order for community service and counselling may be indicated during the conditional sentence and the period of probation.
[18] Mr. Papilota was arrested on February 16, 2022. He was released on bail on February 17, 2022. He is credited with two days of pre-sentence custody. He was on a strict house arrest bail which was varied on May 27, 2022, to provide for a curfew and allow him to go to work. Mr. Papilota complied with the terms and there were no incidents. He has demonstrated that he can follow court orders. Counsel also agrees that there be a s. 109 order for life, and an order of forfeiture of the guns and ammunition.
[19] Mr. Eshetu outlined Mr. Papilota’s background and asks the court to take into account his guilty plea, that he is taking responsibility for his actions, that he has no criminal record, and that the possession of the firearm was not in connection with drug trafficking or related to gangs. He has rehabilitative prospects as shown by his conduct while on bail. His involvement in the criminal justice system is out of character. Those who wrote letters of support were shocked that he was in possession of firearms. They described him as hardworking, kind and loving. He has shown willingness to give back to the community. He has pursued employment and is successful in his profession. He has employees in his business. At the time of the offences, he worked out of his basement but now rents a portion of a shop from a barber. He has positive family and community support.
[20] Defence counsel submits that a sentence of two years less one day served in the community as a conditional sentence would not endanger the safety of the community and would meet the sentencing objectives. There is no minimum sentence for these offences and there are mitigating circumstances which support a conditional sentence. Counsel relies on jurisprudence where conditional sentences were imposed for weapons offences. In the case of R. v. Carter, 2021 ONCJ 561, the accused pleaded guilty to two counts of importing prohibited firearm parts and possessing a prohibited firearm. Mr. Carter was sentenced to 18 months served as a conditional sentence under house arrest and 18 months’ probation. The accused was a 50-year-old man who was a full-time professor at a local college and was a first-time offender. Fergus O’Donnell J. wrote at para. 29: “I have come to the conclusion that a sentence of real jail as sought by Mr. King is not called for. Indeed, I think it would be harmful to Mr. Carter and to his prospects for rehabilitation…”
[21] In R. v. Desmond-Robinson, 2022 ONCA 369, the Ontario Court of Appeal upheld the trial judges’ sentence of 18 months for the firearms offence but reversed the trial judge who declined to order a conditional sentence saying it was outside of the range affirmed by the Court of Appeal. The court wrote at para. 13 that the trial judge erred as the Court of Appeal has recognized that a conditional sentence may be appropriate in certain circumstances: see R. v. Morris, 2021 ONCA 680. In Desmond-Robinson, the appellant was convicted of firearms-related offences and possession of cocaine and marijuana. The court wrote that, “He was a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.”
[22] Mr. Eshetu cites the decision of R. v. Marier, 2023 ONSC 5194, where the accused tossed a satchel containing a loaded handgun over a backyard fence while fleeing from police and pleaded guilty to possession of a loaded prohibited firearm without a licence. Garton J. sentenced him to two years less 46 days to be served as a conditional sentence. He was a youthful first-time offender who took full responsibility for his actions. He had strong support of his family and community and had been proactive in taking steps towards his rehabilitation while on bail. The court considered the factor of anti-Black racism and held that he was not likely to reoffend or pose a risk to the safety of the public during the period of community supervision.
[23] In the case of R. v. Orin Moses, 2022 ONSC 332, the accused was an early middle-aged first offender who was convicted following a trial of two counts of knowingly having possession of a loaded restricted firearm. When police executed search warrants at two residential addresses and an automobile, they found a handgun that contained a magazine loaded with seven rounds of ammunition in the same room where the accused was found and at another residence that he shared with his common law spouse. They also found matching ammunition in the pocket of a sweater in a closet mixed among other clothes that he wore regularly. Mr. Moses came to Canada in 1996 from Guyana, pursued an education and received a college diploma. He had a strong and stable family and was in a common law relationship for the past seven years. He lived with his spouse and their five-year-old daughter and his twelve-year-old stepdaughter. He also has an 11-year-old son from a previous relationship. He was fully employed and working the night shift. Quigley J. held that a sentence of two years less a day served as a conditional sentence was appropriate for a first-time offender with a stable family life and work background and especially in consideration of the severe immigration consequences that would flow from a period of imprisonment served in custody.
[24] The defence further submits the case of R. v. Stewart, 2022 ONSC 6997, where Copeland J. found Mr. Stewart guilty of four counts relating to possession of a loaded prohibited firearm with an over-capacity magazine. He had just turned 19 years old at the time of the offence, was a first offender with strong family support and was a young Black man. An Enhanced Pre-sentence report had been prepared which discussed his background and showed he had been negatively affected by systemic bias in the educational system which affected his employment history. Justice Copeland wrote at para. 72, “…his responsibility for the offences must be viewed through the lens of his background, including the experience of systemic discrimination.” He had good prospects for rehabilitation. He was sentenced to two years less a day served as a conditional sentence followed by two years of probation.
[25] Finally, counsel relies on the case of R. v. Hussey-Rodrigues, 2024 ONSC 271 where, following a no contest hearing, Presser J. found the accused guilty of two counts of possession of a loaded prohibited firearm with no authorization or licence contrary to s. 95(1) of the Code and one count of possession of a prohibited firearm while knowingly not being the holder of a licence contrary to s. 92(1) of the Code. Mr. Hussey-Rodrigues was 18 years old at the time of the offences, had no criminal record, was born in Toronto, had a five-year-old son and was a single parent to the child for nine months. The defence filed several letters regarding his exceptional parenting of a high-needs child. He had a supportive relationship with family and a circle of close friends. He had been on bail for almost five years with a long time on strict house arrest. The aggravating factors were that he was in possession of the handgun in public on a summer evening in a populated residential area. He ran from police knowing that he was in possession of a loaded handgun.
[26] The court considered Mr. Hussey-Rodrigues’s youth, his lack of a criminal record, his stable and supportive relationships in the community, his well-established track record for rehabilitation, his intent to pursue education and employment and his low risk for re-offending, as well as the collateral consequence of incarcerating Mr. Hussey-Rodrigues when he is a primary caregiver for his son. Justice Presser was satisfied that an appropriate sentence was one of two years less 24 days served as a conditional sentence in the community followed by three years of probation.
[27] In summary, Mr. Eshetu asks the court to impose a sentence of two years less a day served as a conditional sentence followed by probation. He argues that the safety of the community would not be endangered, that there is no minimum sentence, that Mr. Papilota has no criminal record, that he has complied with terms of bail since February 2022 and that in light of mitigating and aggravating factors, a conditional sentence is appropriate. Counsel also submits that Mr. Papilota is willing to attend counselling and has excellent rehabilitative prospects.
Analysis and the Law
[28] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code of Canada. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[29] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.
[30] I now turn to the relevant jurisprudence concerning the offence in this case. The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, [2005] O.J. No. 3532, 201 O.A.C. 138 at para. 78. In R. v. Nur, the Supreme Court of Canada also emphasized the objectives of denunciation and deterrence when sentencing persons found in possession of loaded firearms. While striking down the mandatory minimum sentence for possession of a firearm contrary to s. 95(2), the court upheld the sentence of 40 months for a 19-year-old first offender.
[31] In the decision of the Court of Appeal at R. v. Nur, 2013 ONCA 677, Doherty J.A. wrote at para. 206: “Individuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”
[32] In R. v. Smickle, 2014 ONCA 49, [2014] O.J. No. 258, the offender was convicted of possession of a loaded prohibited firearm contrary to s. 95(1) of the Code. The Court of Appeal held that the offence was serious, that the principles of deterrence and denunciation are paramount but that those principles could be met without re-incarcerating the offender. The court wrote at para. 19: “…Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders…”
[33] In R. v. Ramos, [2023] O.J. No. 805, Goldstein J. sentenced the offender who pleaded guilty to possession of a loaded prohibited firearm. Ms. Ramos was found guilty of possession of cocaine for the purpose of trafficking following a summary trial. While Justice Goldstein noted that cases involving loaded prohibited firearms require exemplary sentences and sentences in the range of three years for a first offender are the norm, he held that Ms. Ramos’ moral blameworthiness was relatively low, sentenced her to two years less a day concurrent on all counts and ordered that she serve her sentence in the community as a conditional sentence.
[34] In R. v. Beharry, 2022 ONSC 4370, the offender was sentenced following receipt of an Enhanced Pre-Sentence Report, to two years less one day served in the community as a conditional sentence for the offences of possession of a firearm without being the holder of a licence, possession while knowingly not being the holder of a licence and occupying a motor vehicle knowing that a firearm was in it.
[35] In R. v. Lewis, [2022] O.J. No. 872, Boswell J. sentenced a 25-year-old offender for possession of a loaded prohibited firearm and possession of cocaine following guilty pleas to two years for the weapons offence to which he credited for 7 ½ months in custody with two months credit for harsh conditions of incarceration and four months in recognition of stringent bail conditions for the first nine months of release followed by a curfew for 20 months. The sentence was ordered to be served in the community as a conditional sentence. In the case of R. v. Stewart, 2022 ONSC 6997, Copeland J. sentenced an offender found guilty of four counts of possession of a loaded prohibited firearm with an over-capacity magazine to two years less a day served as a conditional sentence followed by two years of probation. Applying the decision of Morris, she found that since the range of sentence was in the upper reformatory range because of the offender’s young age at the time of the offence and that he was a first offender, the sentence should be served as a conditional sentence with terms that would meet the objectives of deterrence and denunciation.
Decision
[36] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.
[37] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Papilota.
[38] Mr. Papilota is 32 years of age and was born on January 11, 1992, in Iloilo City, Iloilo, Philippines. He is the only child of his mother and father. He has six half-sisters with three from his mother’s side and three from his father’s side. He has never been acquainted with his biological father. He now lives with his mother, stepfather and two younger maternal half-sisters in Markham, Ontario. When he was seven years old, his mother immigrated to Canada on her own leaving an abusive relationship with Mr. Papilota’s stepfather. He was told she would be away for a year or two, but six years passed before he and his sister were able to come to Canada. His mother arranged for him to live with an aunt and uncle. His mother communicated with them weekly and sent financial support.
[39] He described to the probation officer that his immigration experience as a teenager proved to be a difficult period of transition. He had to learn a new language and adapt to a new lifestyle. His mother married her present spouse and had a child with him. His mother described to the probation officer that these events may have intensified the struggles for her son to adjust to his new life. However, before long, he had many friends. Mr. Papilota is close to his mother and sisters. He has a cordial relationship with his stepfather.
[40] Mr. Papilota completed high school and attended a two-year college diploma course in general arts and science. He had various retail jobs in fast food restaurants, clothing stores and as a personal trainer at the gym. He was skilled in drawing and penmanship. He pursued work in tattooing first on a part-time basis and then full time. He is now in business with Monina Serquina whom he met in 2020. They have a small shop within a barbershop in North York and they manage a team of six tattoo artists including two apprentices. Mr. Papilota has established himself as a reputable tattoo artist in Toronto. Mr. Papilota does not have any issues with addiction to drugs or alcohol. He has not been involved with a mental health professional. He does not have a criminal record.
[41] Mr. Papilota expressed to the probation officer that he was tattooing in his basement apartment at the time of the offence and became “paranoid” with regards to his safety. He was involved with “a bad circle of friends” whom he met through work, and they assisted him in obtaining firearms. He denied possessing a firearm in public. He says that he lost high school friends following his arrest. His mother was shocked when she learned of his arrest. His hope is to continue to grow his business and mend broken relationships. He has taken responsibility for his actions. The probation officer expressed the view that he would benefit from counselling.
[42] Mr. Papilota has demonstrated that he has positive family and community support and strong rehabilitative potential.
[43] With respect to the circumstances of the offence, the offence was comprised of possession of a loaded restricted weapon without being the holder of a licence or registration and possession of a prohibited device, an over capacity cartridge magazine while knowingly not being the holder of a licence. Police found the unloaded pump action shotgun in the bedroom closet, a Glock 9 mm loaded with ammunition under the pillow of the bed in the bedroom and ammunition for the Glock and the shotgun in the closet of the bedroom.
[44] While the circumstances of the offences are serious, there are many factors in mitigation including that Mr. Papilota pleaded guilty to the charges (although it was after an unsuccessful Charter application in the Superior Court) and that he has demonstrated remorse, thus taking responsibility for his actions. He has a supportive family. He has no criminal record. He has complied with bail terms since February 17, 2022, and has shown that he is able to live in the community subject to strict terms.
[45] The aggravating factors are that the Glock was a fully loaded weapon which posed a significant danger, and this type of offence is what the Supreme Court of Canada considered to be at the more significant spectrum of firearm related offences. Mr. Papilota did not have a firearm licence and the gun was available for use. He had an unloaded shotgun, but ammunition was readily available for both the Glock and the shotgun. The guns were in his possession in the residence and not out in the public, but he was inviting clients into the basement of his house for tattooing.
[46] There is no question that a period of imprisonment must be imposed for these offences. However, although aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Each case must be considered individually: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f).
[47] As outlined above, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2(e)).” Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
[48] I have considered the need for denunciation and deterrence in this case. However, I am mindful that Mr. Papilota is relatively young, has no criminal record and has stable family and friends who support him. He has a business which has proven to be successful and in which he employs five people; he wishes to continue this business with his partner. Permitting Mr. Papilota to serve his sentence in the community will allow him to continue his rehabilitation and be a productive member of society. In reaching this sentence I am mindful that Mr. Papilota has been on a release to reside with his sureties with strict house arrest for a portion of it and a less strict release permitting him to work and be subject to a curfew. These terms that have been in place since his release on February 17, 2022, following his arrest and are a factor I consider in fashioning the appropriate sentence as is discussed in R. v. Downes, (2006), 205 C.C.C. (3d) 488 (Ont. C.A.).
[49] In R. v. Downes, Justice Rosenberg of the Ontario Court of Appeal wrote that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider see: para. 37. The court is to look at the factors of the length of time on bail subject to the conditions, the stringency of the conditions, the impact on the offender’s liberty and the offender’s ability to carry on normal relationships, employment, and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit.
[50] The sentence of imprisonment served in the community as a conditional sentence will achieve the objectives of denunciation and deterrence as well as rehabilitation and with restrictive terms will also be a punitive sanction. I am satisfied that serving the sentence in the community meets the objectives of sentencing and is also in the public interest.
[51] Accordingly, I impose a sentence of imprisonment of two years less one day served in the community as a conditional sentence. I credit Mr. Papilota with having served 2 days in custody as he was charged on February 16, 2022, and released on February 17, 2022, and is credited in accordance with s. 719(3.1) of the Criminal Code of Canada and R. v. Summers, [2014] S.C.R. 575 at 1.5:1.
[52] As for credit in accordance with Downes, I certainly accept that the terms of release over the previous more than two years which included house arrest for three months and then varied to a curfew on June 13, 2023, have been restrictive of Mr. Papilota’s liberty. There have been no incidents of breaches and the information provided was that he was fully compliant with the terms of release. I exercise my discretion and consider this factor in fashioning the overall sentence.
[53] The sentence of two years less one day served as a conditional sentence shall have the following terms: in addition to the statutory conditions in s. 742.3 which I impose, Mr. Papilota shall reside at 30 Everidge Drive, Markham, Ontario with his mother or at such address as approved by his supervisor. He shall be under house arrest for the first twelve months of the conditional sentence and shall only leave the house for the purpose of work, to attend school or attend at appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household, to obtain necessities once each week for four hours and for any other reason that his supervisor approves. In any event, during the period of house arrest, he shall be in the house between the hours of 11:00 p.m. and 6:00 a.m. each day for seven days each week.
[54] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 11:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor. During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence.
[55] Following this period of imprisonment, Mr. Papilota will be on probation for two years. In addition to the statutory conditions, he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary; he shall reside at an address approved by his probation officer, he shall maintain employment or attend school and provide proof to his probation officer; he shall abstain from owning or possessing any weapon and he shall attend and participate in any counselling and/or treatment as directed by his probation officer and sign any necessary releases.
[56] I further make an order under s. 109 prohibiting Mr. Papilota from possessing any weapon as defined by the Criminal Code of Canada for life. Finally, there will be an order of forfeiture of the gun and ammunition.
Himel J. Released: July 24, 2024