COURT FILE NO.: CR-23-30000737-0000

DATE: 2024-10-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KRISTIAN GORGIEVSKI

A. Rose, for the Crown

A. Mamo, for Mr. Gorgievski

HEARD: October 17, 2024

REASONS FOR SENTENCE[^1]

SCHRECK J.:

[1] Kristian Gorgievski had a .40 calibre handgun in his bedroom together with an overcapacity magazine and 11 rounds of ammunition. The serial number on the gun had been removed. At the time, Mr. Gorgievski was bound by two court orders prohibiting him from possessing firearms.

[2] The police found Mr. Gorgievski’s gun when they searched his home, and he was charged with several offences. He has pleaded guilty to possession of a prohibited firearm with readily accessible ammunition, contrary to s. 95(1) of the Criminal Code (Count 1), possession of a firearm knowing that the serial number on it had been defaced, contrary to s. 108(2)(b) (Count 4), and two counts of possession of a firearm while prohibited, contrary to s. 117.01(1) (Counts 5 and 6).

[3] Mr. Gorgievski is 31 years old. He has a criminal record with serious but unrelated convictions and a very supportive family. The Crown submits that a total sentence of imprisonment for four and a half years is appropriate. Counsel for Mr. Gorgievski submits that the sentence should be three years.

[4] The following reasons explain the sentence that will be imposed.

I. FACTS

A. The Offences

[5] A search warrant was executed at Mr. Gorgievski’s home on July 5, 2022. Inside a bag in Mr. Gorgievski’s bedroom, the police found a .40 calibre semi-automatic handgun with a defaced serial number, an overcapacity magazine capable of holding 12 rounds of .40 calibre ammunition, and 11 rounds of such ammunition. Both the gun and the magazine were prohibited within the meaning of s. 84 of the Criminal Code. Mr. Gorgievski acknowledges that he had knowledge and control of the items.

[6] At the time he possessed the firearm, Mr. Gorgievski was bound by two orders made pursuant to s. 109 of the Criminal Code which prohibited him from possessing it.

B. The Offender

(i) Background

[7] Mr. Gorgievski is 31 years old. He was born and grew up in Toronto. His parents separated when he was three years old and he and his older sister were primarily raised by their mother, although Mr. Gorgievski developed a stronger relationship with his father when he got older. Mr. Gorgievski’s family lived in the area of Eglinton Avenue East and Danforth Road, which is an area in which there is significant gun violence and other crime.

[8] Prior to his arrest, Mr. Gorgievski lived with his mother and his sister. According to the information in the Presentence Report (“PSR”) and letters written to the court by Mr. Gorgievski’s family members, this is a close and supportive family. Mr. Gorgievski’s mother was diagnosed with cancer and Mr. Gorgievski played a large role in caring for and supporting her, something he is no longer able to do as he is in custody.

(ii) Education and Employment

[9] Mr. Gorgievski completed Grade 11 in high school and then left school because of difficulties focussing. Although he was never diagnosed, his mother suspects that he may have Attention Deficit Disorder.

[10] The PSR is somewhat vague with respect to Mr. Gorgievski’s work history. It appears that he worked in his father’s renovation business at times, but the work was seasonal. For the two years prior to his arrest, he collected social assistance.

(iii) Health

[11] According to the PSR, Mr. Gorgievski has been diagnosed with anxiety and depression, although it is unclear when this was. He received medication for these conditions. He is otherwise in good health.

(iv) Criminal Record

[12] Mr. Gorgievski was convicted of failing to comply with a probation order in 2013, for which he received a suspended sentence. In 2016, he was convicted of arson and failing to comply with a recognizance, for which he received another suspended sentence. In 2021, he was convicted of possession of a Schedule I controlled substance for the purpose of trafficking, for which he received an effective sentence of two years less a day, to be served in the community pursuant to a conditional sentence order.

(v) Presentence Custody and Time on Bail

[13] Mr. Gorgievski has spent 220 days in presentence custody. He spent 101 of those days at the Central East Correctional Centre (“CECC”). During that period, he was subject to full or partial lockdowns on 86 days, mostly because of staffing levels. For 59 days, he was triple-bunked in a cell designed for two people. Mr. Gorgievski spent the remainder of the time at the Toronto East Detention Centre (“TEDC”), where he was locked down on three days and spent seven nights triple-bunked.

[14] Prior to being incarcerated, Mr. Gorgievski was on bail for 625 days, on 538 of which he was subject to house arrest. His bail was revoked when he was charged with new criminal offences, including failing to comply with a recognizance. Those charges remain outstanding.

II. ANALYSIS

A. General Sentencing Principles

[15] Section 718 of the Criminal Code provides that 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….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58, the various objectives “will not necessarily point toward the same sentencing disposition” and that the court must “prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.”

[16] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30.

B. Sentencing for Firearm Offences

[17] Mr. Gorgievski unlawfully possessed a handgun. This is a device that is specifically manufactured to end the lives of human beings. Applying pressure on the trigger for only an instant can result in the end of a life, thereby destroying all the hopes and dreams that the person had and leaving a trail of heartbreak and lifelong sorrow for those who cared about him. The threat posed by handguns cannot be overstated.

[18] Like most who work in the criminal justice system, I have personally seen the harm handguns can do time and time again. People who become involved in otherwise inconsequential altercations end up dead. Innocent children are killed by stray bullets. Family members have to come to terms with the fact that they will never again see a person they loved.

[19] For many years, the courts have reiterated the need to impose “exemplary sentences” to deter those who would possess and use firearms: R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77. Given the continued prevalence of the problem, it is clear that the criminal justice system cannot eradicate the problem by itself. Additional steps need to be taken to identify and remedy the social conditions that result in young men like Mr. Gorgievski arming themselves with deadly weapons. But this not something the court can accomplish on its own and sentencing judges can do no more than take reactive steps.

C. The Appropriate Range

(i) Firearm Possession

[20] There is a well-established range of sentences for firearm possession offences of between two and five years imprisonment for a first offence: R. v. Hussey-Rodgriques, 2024 ONSC 2671, at para. 88; R. v. Burke-Whittaker, 2024 ONSC 2906, at para. 27. The gravity of firearm possession offences is always significant, so where an individual is situated within the range will depend on the offender’s level of moral culpability. This often depends on the reason for which the firearm was possessed.

[21] Where the firearm was possessed by an “outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade,” such as a drug dealer intending to protect his supply or a person planning to engage in an armed robbery, the level of moral culpability will be high: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51 (aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82). Because of this, such offenders tend to receive sentences that are higher than the lower end of the two-to-five-year range: R. v. Graham, 2018 ONSC 6817, at para. 38, aff’d 2020 ONCA 692, 474 C.R.R. (2d) 137; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; R. v. Mensah, 2024 ONSC 2796, at para. 52. On the other hand, where the handgun is possessed in private and not for the purpose of facilitating other criminal activity, a sentence at the lower end of the range may be appropriate: R. v. Stewart, 2022 ONSC 6997, at para. 74; R. v. King-Joseph, 2024 ONCJ 280, at para. 28; R. v. Edwards, 2023 ONCJ 53, at para. 41. To be clear, while there may be different levels of moral culpability, the moral culpability associated with possessing a firearm will always be significant.

[22] While Mr. Gorgievski’s reasons for possessing the firearm are not altogether clear, the search of his home did not reveal any evidence that he was involved in other criminal activity. Furthermore, comments made by him and his mother to the author of the PSR indicate that Mr. Gorgievski may have possessed it out of some sort of misguided belief that it was necessary for him to protect himself, given the level of violent crime in the area where he lived. This “ameliorates the offender’s moral responsibility” and is a “limited mitigating factor”: Morris, at paras. 100-101. This takes Mr. Gorgievski out of the higher end of the range, subject to a consideration of other relevant aggravating and mitigating factors.

(ii) Breach of Prohibition Order

[23] Although breaching a prohibition order could be considered as an aggravating factor on the s. 95 offence, in which case a concurrent sentence would be appropriate, it is usually treated as a separate offence requiring a separate and consecutive sentence: R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at paras. 21-22; R. v. Chambers, 2013 ONCA 680, 295 C.R.R. (2d) 314, at paras. 21-25. The sentencing range for this offence appears to be imprisonment for six months to one year: Chambers, at paras. 20-22; McCue, at para. 23; R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598, 132 O.R. (3d) 510; R. v. Jogiyat, 2024 ONSC 3498, at para. 73; R. v. Morgan, 2024 ONSC 1344, at para. 38.

D. Aggravating and Mitigating Factors

(i) Aggravating Factors

(a) Prior Criminal Record

[24] Mr. Gorgievski is not a first offender. While he has never been convicted of a firearms offence, he has been convicted of other serious offences and the sentences he received do not appear to have deterred him from engaging in further criminal conduct. This is a significant aggravating factor.

(b) Defaced Serial Number

[25] Another aggravating factor is that the serial number on the firearm was defaced. This is the basis for a separate conviction. However, since I intend to impose a concurrent sentence for that offence, it is appropriate to treat this is an aggravating factor.

(c) Overcapacity Magazine

[26] Finally, the firearm had an overcapacity magazine, which rendered it more dangerous because of the ability to fire more rounds at once.

(ii) Mitigating Factors

(a) Remorse

[27] Mr. Gorgievski accepted responsibility for his actions and pleaded guilty. In doing so, he relieved the Crown of the burden of prosecuting him and saved the justice system the time and expense of a trial. In a jurisdiction such as this facing a backlog of cases, this is a factor that must be accorded considerable weight.

[28] More importantly, Mr. Gorgievski’s pleas, together with the comments he made to the author of the PSR as well as the comments he made when addressing the court at his sentencing hearing, satisfy me that he is remorseful for his actions.

(b) Supportive Family

[29] Mr. Gorgievski has a close and supportive family who will undoubtedly assist him in his rehabilitative efforts.

(c) “Downes” Credit

[30] Mr. Gorgievski spent a considerable amount of time on bail subject to strict conditions, which should be taken into account in arriving at a fit sentence: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.), at para. 33; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. Courts are not required to quantify a specific amount of credit, and doing so risks skewing the calculation of the ultimate sentence: R. v. Marshall, 2021 ONCA 344, at para. 53. When courts do quantify the credit, it is often between a quarter and a third of the total time spent on bail: R. v. Long, 2021 ONSC 4747, at para. 39; R. v. Navarathinam, 2021 ONSC 4241, at paras. 47-51; R. v. Campbell, 2021 ONSC 4193, at paras. 15-20; R. v. Inshanally, 2021 ONSC 3432, at paras. 35-37. In this case, Mr. Gorgievski is entitled to a credit of approximately four months.

(d) Conditions of Presentence Custody

[31] While at the CECC, Mr. Gorgievski was subject to lockdowns on 85% of the days he was there and triple-bunked for 58% of the time. The treatment he experienced at the CECC was by no means an anomaly: R. v. Hamilton, 2024 ONSC 2167, at para. 59; R. v. Rooplal, 2024 ONSC 3729, at para. 26; R. v. Samuels, 2023 ONCJ 597, at paras. 30-32; R. v. McPherson, 2023 ONCJ 160, at paras. 89-95; R. v. Lovell, 2023 ONSC 6776, at paras. 38-42; R. v. Valley, 2023 ONSC 166, at para. 43; R. v. Brown, 2022 ONCJ 679, at paras. 34-39; R. v. Smith, 2022 ONSC 3800, at paras. 39-44; R. v. Derby, 2022 ONSC 2266, at paras. 35-40; R. v. Lewis, 2022 ONSC 1260, at para. 38; R. v. Williams, 2022 ONCJ 57, at paras. 67-68; R. v. Hillier, 2021 ONCJ 634, at paras. 16-17; R. v. Doan, 2021 ONCJ 8590, at paras. 15-16; R. v. Charles, 2021 ONSC 5907, at para. 49; R. v. Ashton, 2021 ONSC 3994, 2021 ONSCJ 3994, 86 M.V.R. (7th) 102, at paras. 27, 66-67; R. v. Perry, 2020 ONSC 8173, at paras. 43-46; R. v. Salmon, 2019 ONSC 1574, at paras. 40-41; R. v. Johnson, 2017 ONSC 3512, at paras. 69-79; R. v. Cooper-Flaherty, 2017 NUCJ 11, at para. 48.

[32] It is now well accepted that the existence of unduly harsh conditions in presentence custody is a relevant factor on sentencing. Reducing a sentence on this basis is often referred to as “Duncan” credit after the decision in R. v. Duncan, 2016 ONCA 754, although in R. v. Marshall, 2021 ONCA 344, at para. 52, the court explained that this is not really a “credit,” but rather a mitigating factor to be considered together with other aggravating and mitigating factors. Its mitigating effect stems from the fact that the harsh custodial conditions are a collateral consequence of the offence: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 47-48; R. v. Doyle, 2022 ONSC 2489, at paras. 50-53.

[33] However, unlike other collateral consequences which are fact-specific, the existence of unduly harsh conditions of presentence custody is a systemic problem that has been ongoing for several years. Courts have condemned these conditions as being unacceptable on countless occasions. The government’s response to these criticisms has been to do nothing. To ignore the state’s refusal to heed the court’s admonitions risks bringing the administration of justice into disrepute. As a result, in addition to ensuring proportionality, granting credit for time spent in harsh conditions also serves to communicate the court’s disapprobation of the state’s conduct: R. v. Greene, 2024 ONSC 5155, at para. 62; R. v. Bernard, 2021 ONSC 5817, at paras. 26-32; R. v. Shaikh, 2024 ONSC 774, at paras. 27-30; R. v. McEwan, 2023 ONSC 1608, at para. 99; R. v. Spicher, 2020 ONCJ 340, at paras. 66-67; R. v. Kongolo, 2022 ONSC 3891, at paras. 82-84; R. v. Hassan, 2023 ONSC 5040, at para. 46; R. v. Ahmed, 2021 ONSC 8157, at para. 42; R. v. Persad, 2020 ONSC 188, at paras. 35-36.

[34] In Marshall, at para. 53, Doherty J.A. noted that many courts often specify the number of days or months that are given as “Duncan” credit and that “[w]hile this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence.” Since Marshall, many judges, including myself, have often declined to specify the amount of “Duncan” credit that is given. However, I am now of the view that it will often be appropriate to do so for the reasons expressed by my colleague, Molloy J., in Shaikh, at paras. 22-23:

With the greatest of respect for the guidance provided by the Court of Appeal for Ontario in Marshall, I consider it preferable, not merely acceptable, to quantify the period of time by which a sentence is reduced to reflect the harsh and punitive conditions of pre-trial custody provided for in Duncan. I take no issue with this being properly characterized as a mitigating factor, nor that it should not be used so liberally as to make a sentence unfit. However, in my opinion, the Duncan credit by its nature, lends itself to being expressed numerically, which is not the case for other kinds of mitigating factors, such as remorse, youth, and the like.

Transparency and consistency are two important underlying principles of sentencing that are best served by specifying the amount of the Duncan credit. If a sentencing judge merely states that the punitive pre-trial custody conditions have been factored in, without specifying how, neither the accused, the public, the government, nor correctional officials will know the extent to which this has been done. In the result, there will be no public knowledge of the impact deplorable conditions in the prisons are having on the sentences served by offenders, providing little incentive to those in authority to fix the problem. While the amount of credit to be given is a matter of discretion to which deference would typically be afforded, sentencing judges being transparent about the amount of the sentence reduction given will also provide a better opportunity for appellate oversight and error correction.

Later in her reasons, at para. 30, Molloy J. stated:

I too, both before and after Marshall, have quantified the extent of any credit to be given for extremely harsh circumstances of pre-trial custody. Perhaps it is naïve to believe that judges consistently and continuously speaking out about the unacceptability of treating human beings in this manner will have any impact at all. However, I consider it important to at least speak out. Judges can only do that through our decisions, and we should be clear about what we are doing and why. Simply taking these kinds of conditions into account with a myriad of other mitigating factors, without specifying the reduction in sentence attributed to the harsh conditions in the institution, only serves to hide the impact of these conditions on the amount of actual time offenders are being required to serve for their crimes. There are already many decisions by judges of this court decrying these conditions. Maybe, someday, someone will notice. And maybe, someday, the someone who notices will be in a position to do something about it. In the meantime, I will continue to quantify the amount by which I reduce any sentence to reflect the principles in Duncan. It is both the least, and all, I can do.

I agree with these sentiments.

[35] In this case, I view the conditions at the CECC as a significant mitigating factor because of the Ontario government’s steadfast refusal to treat people in accordance with basic minimum standards set by the United Nations over 50 years ago.[^2] As a result, Mr. Gorgievski is entitled to a “credit” of five months for the 86 days he spent in full or partial lockdown and the 59 days on which he was triple-bunked.

E. The Appropriate Sentence

[36] Counsel for Mr. Gorgievski submits that a total sentence of three years is appropriate and relies on R. v. Barreira, 2024 ONSC 4682, where three and a half years was held to be appropriate after trial for an offender with an unrelated record who possessed a firearm in relation to drug trafficking activities. However, the serial number on the firearm was not defaced, there was no overcapacity magazine and the offender was not subject to a prohibition order.

[37] The Crown submits that a total of four and a half years is appropriate (three and a half for the possession offence and one year consecutive for violating the prohibition order) and relies on a number of cases where offenders had records and/or breached prohibition orders: R. v. Bakal, 2023 ONCA 177, at paras. 58-68, aff’g unreported, March 9, 2021, Ont. C.J.; R. v. Crevier, 2013 ONSC 2630, aff’d 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 127-130; R. v. Jean, 2014 ONSC 9, varied 2016 ONCA 128, at paras. 17-19; R. v. McKenzie, 2016 ONSC 5025; R. v. Nascimento, 2014 ONSC 6739. I note that all of these cases involved sentences imposed after trial and many had significant aggravating factors that are not present in this case. In three of them, Bakal, Jean and Crevier, the firearm possession was somehow connected to the drug trade. In Nascimento, the offender had a very significant criminal record and in Samaniego, the gun had been possessed in a public place and used to threaten someone.

[38] The case that is closest to this one on its facts is McKenzie, where a 33-year-old offender with a prior but unrelated record comparable to Mr. Gorgievski’s possessed a handgun in his home while subject to a prohibition order. Although there was no guilty plea, the offender had accepted responsibility for his offence and had only litigated the validity of a search warrant. On the other hand, that case did not involve a defaced serial number or an overcapacity magazine and the offender was subject to only one prohibition order. The total sentence imposed in McKenzie was three and a half years (three years for the firearm possession and six months consecutive for the violation of the prohibition order). However, one year was then deducted from this because the offender had spent over four years subject to strict bail conditions.

[39] In my view, given the aggravating factors present in this case that were absent in McKenzie, particularly the fact that there was a breach of two prohibition orders, a somewhat longer total sentence of four years is appropriate. However, for the reasons explained earlier, I am of the view that five months should be deducted because of the conditions of Mr. Gorgievski’s presentence custody and another four months because of the time spent subject to strict bail conditions. In the result, the appropriate total sentence is three years and three months, consisting of two years and nine months for the firearm possession offences and six months for each prohibition order offence, to be served consecutively to the firearm possession offence but concurrently with one another.

[40] In accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Gorgievski is entitled to a credit of 330 days, or approximately 11 months, for the 220 days he has spent in presentence custody. The sentence that remains to be served is therefore two years and four months.

III. DISPOSITION

[41] The sentences of imprisonment imposed are as follows:

• Count 1: 33 months;

• Count 4: 12 months, concurrent;

• Counts 5: six months, consecutive;

• Count 6: six months, concurrent.

The total sentence is therefore 39 months (three years and three months). Mr. Gorgievski is entitled to a credit of 330 days (11 months) for 220 days spent in presentence custody. The sentence that remains to be served is 28 months (two years and four months).

[42] Pursuant to s. 109(3) of the Criminal Code, there will be an order prohibiting Mr. Gorgievski from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life.

Pursuant to s. 491(1)(b) of the Criminal Code, there will be an order that the firearm seized from Mr. Gorgievski’s residence be forfeited to His Majesty and disposed of as the Attorney General directs.

Justice P.A. Schreck

Released: October 24, 2024

COURT FILE NO.: CR-23-30000737-0000

DATE: 2024-10-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KRISTIAN GORGIEVSKI

REASONS FOR SENTENCE

Schreck J.

Released: October 24, 2024

[^1]: An abbreviated version of these reasons was delivered orally in court on October 24, 2024. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[^2]: The Standard Minimum Rules for the Treatment of Prisoners was first adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955. The Rules were revised and expanded in 2015 and are now known as the “Nelson Mandela Rules”: A. Gilmour, “The Nelson Mandela Rules: Protecting the Rights of Persons Deprived of Liberty” (https://www.un.org/en/un-chronicle/nelson-mandela-rules-protecting-rights-persons-deprived-liberty).