COURT FILE NO.: 21-A12209 DATE: 2024/09/06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Alexander Borelli Appellant

Counsel: Moiz Karimjee for the Respondent Eric Granger for the Appellant

HEARD: August 21, 2024

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Appeal from the sentencing decision of N. Boxall J., of the Ontario Court of Justice

ANNE London-weinstein j.

1The Appellant pleaded guilty to one count of carrying a concealed weapon, contrary to section 90(2) of the Criminal Code. The Crown sought a period of six months custody, the Appellant sought a conditional discharge. The Trial Judge, after taking time for reflection, imposed a suspended sentence and 18 months probation.

2The Appellant submits that the Trial Judge erred in principle by sentencing the Appellant as if he had committed a “use” offence when he had only admitted to a “possession” offence, thereby erring in principle and imposing a sentence based on an inappropriate assessment of the Appellant’s moral culpability.

3The Appellant submits that given the legal error alleged, this Court should impose the conditional discharge requested at the original sentencing hearing, it not being contrary to the public interest to grant him a conditional discharge.

4On April 20, 2023, the Appellant entered a guilty plea to the offence of carrying a concealed weapon, contrary to section 90(2) of the Criminal Code. The matter proceeded on the basis of an agreed statement of fact that was read into the record at that time. The agreed statement of facts stipulated as follows:

Agreed Statement of Facts:

On December the 19th, 2021 Alexander Borelli and his friend Connor Dinardo and a third friend named John, attended the Happy Fish bar at 330 Elgin Street. While at the bar, Mr. Borelli engaged in an argument with a group of other people inside. This argument led to a physical altercation erupting between the two groups of people. Mr. Borelli was a member of one of the groups, along with Mr. Dinardo. John did not participate in the physical altercation.

The other group consisted of at least five individuals. The fight was broken up by bar security inside and both groups were escorted outside by security. The fight then broke out again, once everyone was outside.

During the second confrontation outside, Mr. Borelli was observed pulling out what looked to be a handgun from his fanny pack. To everyone at the scene, it looked like a real handgun. He was then observed to point it at Nicholas Bouris. Witnesses heard approximately five discharges that sounded like a taser sound, while Mr. Borelli was pointing the gun at Mr. Bouris. People scattered. Police were called, and quickly arrived on scene. Mr. Borelli was pointed out to the police, and they chased after him and arrested him.

Search incident to arrest found a Crosman C02 powered BB pistol tucked into the small of his back by his waist, along with three small baggies with a total of about three grams of cocaine.

Testing and analysis of the imitation gun confirmed that, while this model of C02 pistol was capable of passing the “pig’s eye” test, this particular pistol, however, was not. It had a broken C02 canister and could not muster enough pressure to project its projectiles fast enough to pass the test and qualify as a Section 2 firearm. Specifically, it had a broken cartridge valve and/or seal in its receiver, which caused C02 to leak at a high rate from any C02 canister that was attempted to be threaded into place within the grip receiver. Consequently, the seized C02 pistol was incapable of discharging a projectile to cause serious bodily injury or death in its current condition, and any efforts to render it capable of doing so would be labour intensive and beyond the realm of the average person’s abilities.

As such, the seized item could not meet the Criminal Code definition of firearm and in spite of any sounds that were heard, nothing was actually discharged from the C02 pistol on the night in question.

Connor Dinardo suffered facial injuries during the altercation, including a left cheekbone that was grossly swollen and approximately a two-centimetre gash at the centre of it, with dried blood observed that had dripped down his neck. Mr. Borelli suffered minor facial injuries. None of the members of the other group have reported any injuries to police.

Sentencing Hearing:

5The defence highlighted several contextual circumstances surrounding the offence that tended to diminish the Appellant’s moral blameworthiness. The Appellant pointed out that what had been plead to was a possession offence, not a use offence, and that it was possession of an object that itself was not inherently illegal. The defence pointed out that it was the fact of concealment that made the possession illegal in these circumstances.

6The Crown acknowledged various mitigating factors, including the Appellant being a youthful, first-time offender, his 18 months on bail without issue, the positive reference letters submitted, and the entry of a plea that enabled a scheduled trial date to be cancelled months in advance.

7The Crown indicated there were a number of aggravating factors including that people reacted as if what was involved was a real firearm, there was panic, police were called and came to the scene looking for a real firearm, and that real firearms “have been and continue to be a problem in Ottawa”, also concluding that the Crown was of the view that a custodial sentence was required. The Crown indicated:

“And unfortunately, having our neighbour to the south where mass shootings have become all too common, I can only imagine the reaction of the patrons of the Happy Fish when a simple bar fight turns into a drawn handgun, and there needs to be a message sent that there’s no place for that in Canadian society, and whatever the reason was, [the Appellant] was carrying that in his satchel, he shouldn’t have been, and that needs to be dissuaded.”

8The Trial Judge asked what the Appellant would have been thinking in possessing the pellet gun “going down to an establishment, just a few blocks from the courthouse, with that type of item on your person.” Counsel indicated that while the admitted facts had been silent on this point, the Appellant had the item in his car, where it had been for some time, and retrieved in the context that he and his friend were outnumbered by at least five individuals. In addition, his friend had suffered some facial injuries and was ultimately taken to the hospital, the Appellant suffered some minor facial injuries and nobody in the other group reported any injuries. There was some damage to the Appellant’s car, but it was unknown who caused it. The appellant and his friend were overmatched, and the friend was getting the worst of it. The Appellant grabbed the pellet gun. The individual that the Appellant engaged with the pellet gun was the individual who was assaulting the Appellant’s friend. The altercation then promptly ended.

9The Appellant pointed out a number of mitigating factor, including his guilty plea, his absence of a criminal record, his youthful first offender status (24 at the time of sentencing, 22 at the time of the offence), close knit and supportive family including reference letters provided by his mother, who the Appellant lived with along with his brother, as well as letters provided by his girlfriend, brother and uncle.

10The Appellant had started a business with his brother. The imposition of a criminal record would pose a significant adverse impact on the Appellant due to the nature of that business.

11The Appellant sought a conditional discharge seeking that significant weight be given to the plea and the saving of trial time, especially given the backlog in the courts. The Appellant requested that considerable weight be afforded to the principle of restraint, given that the Appellant was a youthful first time offender and in light of the meaningful consequences already experienced by the Appellant. Those consequences included three real days in custody and a 10 p.m. to 6 a.m. curfew for a year and a half, along with the significant adverse impact on his career if he were saddled with a criminal record. The Appellant submitted that for an incident that appeared to be out of character that it would not be contrary to the public interest to grant a conditional discharge.

12The Trial Judge reserved judgment, indicating that the court needed time to reflect. He noted that in balancing the relevant factors, that it was difficult as he was sentencing a prosocial individual who, despite the fact it was not a real gun, transgressed in a serious manner. He acknowledged the submissions of the Crown.

13The Trial Judge indicated that he had been out the prior Saturday night not too far away from a location where four people were shot. When the Trial Judge read about the shooting in the paper the next day, he said it reminded him of what was transpiring in the city of Ottawa. He pointed out that in the case before him the gun was not a real gun, but no one was aware of that fact. He pointed out, correctly in my view, the potential tragic consequences of the Appellant’s decision to carry a concealed pellet gun on his person at a downtown bar. Police may have been involved; a real gun may have been relied on in response. The potential for harm, the Trial Judge noted, was significant.

14When he returned to court to render a decision, the Trial Judge confirmed that the Appellant had plead guilty to a possession offence.

15The Trial Judge then indicated that he agreed with the Crown that, for the offence involving possession and production of an imitation firearm, to the extent of pulling the trigger and making noises in a public place, that the offence is serious, and that deterrence and denunciation are the primary sentencing concerns.

16The Trial Judge declined to grant a conditional discharge finding that it would be contrary to the public interest given the facts of the offence itself, including the production and engagement of the imitation firearm at the location in question. The Trial Judge noted that while a discharge can still have a denunciatory and deterrent effect, a discharge would lack the denunciatory and deterrent effect required on these facts.

17The Trial Judge then suspended the passing of sentence and placed the Appellant on probation for a period of 18 months. He noted credit for five days of pre-sentence custody. He imposed a five-year weapons prohibition pursuant to section 110 of the Criminal Code.

Legal Analysis:

Position of the Parties:

Appellant’s Position:

18The Appellant submits that the Trial Judge erred in principle by assessing the Appellant’s culpability as though the Appellant had committed a “use” offence as opposed to a “possession” offence. The Appellant maintains that the Sentencing Judge treated various aggravating factors associated with the “use” offence as proven when they had not been admitted. The Appellant’s position is that the Trial Judge erred in assessing the Appellant’s admitted level of moral culpability and overstated the seriousness of the offence.

19The Appellant submits that this perception of elevated moral culpability of the Appellant by the Trial Judge was central to his conclusion that it was contrary to the public interest to grant a conditional discharge. The Appellant maintains that this was an error in principle that had an impact on the sentence imposed, the sentence imposed is therefore not entitled to deference, and that it falls to this Court to determine a fit sentence for the Appellant. The Appellant submits that a fit sentence remains the conditional discharge sought in the first instance.

Respondent’s Position:

20The position of the Crown is that the Trial Judge made no error in principle, that the sentence was a fit one in the circumstances of the case, and that the Trial Judge is entitled to consider any facts forming part of the circumstances of the offence that could constitute the basis of a separate charge. Section 725(1)(c) of the Criminal Code.

Analysis:

21I am not satisfied that the Trial Judge erred in sentencing the Appellant with regard to the “possession” offence. The Trial Judge checked with the Registrar to confirm which offence had been plead to before sentencing the Appellant. The Trial Judge is entitled to accept any fact agreed on by the Crown and the offender and may consider any facts forming part of the circumstances of the offence that could constitute the basis of a separate charge. Section 724 of the Criminal Code and Section 725(1)(c) of the Criminal Code.

22In determining whether a conditional discharge is not contrary to the public interest, the Trial Judge is entitled to consider all of the circumstances surrounding the offence. Possession of a concealed weapon in public in a bar during a bar fight where police were called, and the possible tragic consequences which may have ensued here, was an entirely proper consideration for the Trial Judge.

23The Appellant argues that the Trial Judge erred in the balancing of the relevant factors, and clearly sentenced the Appellant as though he had used the weapon, rather than simply carrying it in a concealed fashion. I find that the Trial Judge did not err, but rather, considered all the surrounding circumstances of the offence. All the facts relied on by the Trial Judge were agreed to as part of the plea in determining whether a conditional discharge was not contrary to the public interest.

24If I am wrong in this regard, I would not interfere with the sentence imposed by the Trial Judge were I to impose sentence in this case. In my view, the sentence imposed by the Trial Judge was fit, fair and rendered generous consideration to the principle of restraint, given the circumstances of the case. This case could have easily ended in tragedy due to the Appellant’s decision to carry a concealed pellet gun during a bar fight downtown. Fortunately, tragedy was averted. In my view, the Trial Judge demonstrated restraint in imposing the sentence he did, given the potential for serious harm to have occurred because of the Appellant’s actions.

25I appreciate the youthfulness of the Appellant and the many mitigating factors presented. However, if I were sentencing the Appellant, I too would have concluded that a conditional discharge, given the circumstances surrounding this offence, is contrary to the public interest. Therefore, the appeal of sentence is dismissed.

Anne London-Weinstein J.