SENTENCING DECISION

Overview

[1] On May 6, 2024, following a four-day judge-alone trial, I convicted Wasitt Izaz of three firearm-related offences:

(a) Possession of a loaded prohibited firearm (Glock Model 21) without being the holder of an authorization or licence permitting such possession, contrary to s. 95(1) of the Criminal Code.

(b) Possession of a loaded prohibited device (Over Capacity Magazine), contrary to s. 91(2).

[2] My reasons for judgment are reported at R. v. Izaz, 2024 ONSC 2651.

[3] The circumstances of the offences are that in the late evening hours of April 24, 2021, Mr. Izaz was the driver of a vehicle with six occupants. At about 12:48 a.m. on April 25, 2021, the vehicle stopped outside the Oakdale Community Centre on Grandravine Drive in Toronto. Mr. Izaz remained at the wheel. Two other occupants got out. Each had a loaded handgun. They shot 18 bullets at two men walking in front of the community centre. Miraculously, no one was killed. One victim, Darron Mitchell, suffered three bullet wounds to his leg. The other, Emron Wilson, escaped injury by jumping into bushes. The shooters got back in the car which sped off. About five minutes later, the police stopped the vehicle at gunpoint and arrested the six occupants. Police found one handgun in the front glove compartment of the vehicle, and the other near the right rear passenger door. Mr. Izaz was charged with several firearm-related offences.

[4] In my reasons, I found objective evidence that the get-away car was limited in speed and noisy. I accepted that it was reasonably possible that Mr. Izaz, who had an interest in cars, was duped into being the driver by the occupants who planned and executed the shooting. I could not say whether the planning for the shooting was days, hours, minutes or seconds in advance of it occurring, but I found it reasonable to infer that, if the shooting was planned in advance of the evening it happened, the perpetrators would not have chosen a get-away car that was limited in speed and noisy, or one with distinctive yellow fog lights that would make the car easily identifiable. For reasons that were not clear, Mr. Izaz ended up being the driver when the shooting occurred.

[5] Mr. Izaz testified at trial. I found it a reasonable possibility that, even though Mr. Izaz was driving the vehicle up and down Grandravine Drive for more than half an hour before the shooting, he did not know that the occupants had guns that they intended to discharge. Mr. Izaz testified that when he first approached the subject vehicle in an empty parking lot sometime after 9 p.m., there were already five people in the car, three of whom he had never met. I accepted that it was dark, the occupants wore baggy clothing, and that the two shooters were not displaying their firearms.

[6] I was skeptical of Mr. Izaz’s limited description of the conversation in the car prior to the shooting, but I found it a reasonable possibility that the shooters communicated in code and that, even if Mr. Izaz physically heard what they said, he did not understand that the shooters had guns that they intended to discharge that night. There was no evidence of Mr. Izaz’s prior association or communication with the shooters, or evidence he was associated with gang activity, or that he heard of or knew the victims in any way. Ultimately, I was left with a reasonable doubt that Mr. Izaz knew, before the shooting, that the shooters had guns that they intended to discharge.

[7] I also had a reasonable doubt that he knew, both before and after the shooting, about the gun that was found near the rear right passenger door. However, I was convinced beyond a reasonable doubt that, after the shooting, Mr. Izaz knew about the gun (Glock Model 21) that was found in the front glove compartment of the vehicle. Since police intercepted the car within five minutes of the shooting, the sentencing for firearm possession raises the following question: what is the appropriate sentence for a young, first-time offender who had constructive possession of a firearm in the vehicle that he drove for about five minutes?

[8] For the reasons that follow, I find that a conditional sentence of two years less a day to be served in the community, with two years of probation, is appropriate. Certain ancillary orders should also be imposed.

Victim Impact Statements

[9] There was a debate over the admissibility of the Victim Impact Statements provided by Mr. Mitchell, the victim who was shot in the leg, and Mr. Mitchell’s mother.

[10] Defence counsel argued that the letters should not be admitted since Mr. Izaz was convicted of gun possession and not being one of the shooters. Moreover, since Mr. Izaz was found to have no foreknowledge of the shooting, the Defence argued that Mr. Mitchell is not a direct victim of Mr. Izaz’s offences. Rather, society at large is the victim when the offence is firearm possession.

[11] Crown counsel disagreed and submitted that the Victim Impact Statements focus on the impact from Mr. Izaz driving away from the crime scene after Mr. Mitchell was shot. Moreover, the definition of “victim” in section 2 of the Criminal Code is broadly defined:

victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.

[12] Further, s. 722(8) of the Criminal Code makes it clear that a sentencing judge shall take into account the portions of the statement that the judge considers relevant and disregard any other portion.

[13] I agree with the Crown’s position and find that the two Victim Impact Statements are admissible. Having said that, I note that the Victim Impact Statements hold Mr. Izaz responsible for all the consequences that have befallen Mr. Mitchell and his family since the shooting. These consequences include the difficult financial circumstances that Mr. Mitchell and his family have faced. It is understandable why Mr. Mitchell and his mother feel this way, but it does not follow that Mr. Izaz’s criminal conduct is responsible for all of the impact on Mr. Mitchell and his family. Without diminishing the voice of a victim in the sentencing process, it is important to remember that sentencing hearings are not tripartite proceedings, rather they are a proceeding between society, as represented by the Crown, and a convicted person: R. v. Bremner, 2000 BCCA 345, at para. 26, citing R. v. Gabriel, 1999 CanLII 15050.

Circumstances of the Offender

Pre-Sentence Report

[14] A Pre-Sentence Report (PSR) was prepared by Radika Koneswaran, a Probation and Parole (P&P) Officer.

[15] Mr. Izaz has no prior criminal record.

[16] The PSR indicates that Mr. Izaz, now 21, was born in Dhaka, Bangladesh in February 2003. He arrived in Canada in August 2004 with his parents. His parents were married but separated when he was 12 years old. He has two younger sisters who are enrolled in middle and high school. His father works for the TTC but is currently on medical leave because of back pain. His mother is presently enrolled in nursing school. Mr. Izaz noted that no one else in his family has a criminal record. He stated that his grandfather on his father’s side is a retired Supreme Court judge in Bangladesh.

[17] Mr. Izaz reported that he was raised in a good stable home without any major trauma or neglect. He was never exposed to any substance abuse.

[18] Mr. Izaz’s parents pointed to the traumatic effect that their separation had on Mr. Izaz. His father reported that the mother took the children to a shelter in 2009 and 2015.

[19] Mr. Izaz was initially raised in an apartment and then, in 2012, moved to a house that his father purchased. He then moved around quite a bit—to “three separate addresses”—with his mother before settling down in a three-bedroom apartment. After a year, in the summer of grade 7, he moved back in with his father, sharing a condo with his siblings. Several moves followed, and his father and the three children now reside in a five-bedroom home in Scarborough as of April 2024. Mr. Izaz does not think he was influenced so much by the various communities where he lived, as much as the instability caused by his frequent moves.

[20] Mr. Izaz reported having a close relationship with his mother. In describing his relationship with his father, he stated that his father would be working all day; he barely saw him, but did see him every Sunday. His time together with his father meant a lot. His father did what he could with the time that he had and made sacrifices for the children. Mr. Izaz has mostly lived with his father since his parents’ separation, but nowadays his interactions with his mother are more frequent.

[21] Mr. Izaz has had two serious relationships: one in high school between the ages of 14 and 17, and a later one, during the time of the criminal proceedings, when he was between 18 and 20. At the time of the PSR, he was single, without children.

[22] The PSR noted that Mr. Izaz is no longer friends with his co-accused. Nowadays, he has three close friends: a business partner, and two friends from high school.

[23] In high school, Mr. Izaz reported taking part in every team sport offered. In August 2023, he suffered an ACL tear, a sporting ailment that limits his ability to play sports.

[24] Mr. Izaz graduated from high school in 2024. He graduated with an 82% average. He was recently admitted into a four-year Bachelor of Arts program in criminal justice and public policy at the University of Guelph. I understand that he commenced this program in September 2024.

[25] In terms of employment, Mr. Izaz’s first paid position was at the age of 18 at a warehouse for one month. After various short-term positions, he started his own business, a luxury mobile car cleaning company, in April 2023. He has a business partner. He has no assets. At the time of the PSR, no confirmation of Mr. Izaz actually operating this business had been provided.

[26] As regards his future ambitions, Mr. Izaz stated that he wants to be a criminal trial lawyer and a businessman.

[27] Mr. Izaz denied any dependency on alcohol or drugs.

[28] The PSR noted that Mr. Izaz presented as cooperative, respectful, and engaged, answering most questions in a forthcoming manner. His attitude towards the offences was described as “the worst day I’ve experienced of my life.” He stated that, “it ruined my life, every single day I have to live with it.” He is thankful that the shooting victim is healthy. He is extremely remorseful. He did not think there was any reason for people to have firearms, unless you have a gun license, and he drew a distinction with the situation in the United States.

[29] Mr. Izaz denied any gang affiliation and said that he was not concerned for his personal safety.

[30] While Mr. Izaz stated that he felt discriminated against and felt various stereotypes, but only until grade 3; then it became normalized, and he felt it was nothing out of the ordinary. He indicated that he did not have any negative experiences with the police. Mr. Izaz’s father could not recall any racism to which Mr. Izaz had been subjected.

[31] Mr. Izaz does not report any mental health issues. His father recalled taking him to a psychiatrist when he was 13 to address any childhood trauma and there was no diagnosis.

[32] The PSR concluded that Mr. Izaz has some insight into his behaviour and does appear to express regret for what occurred. He needs to address several concerns, including those who he associates with as well as reflecting on the potential danger of firearms.

Sentencing Position of the Crown

[33] The Crown seeks a three-year (36-month) sentence for Mr. Izaz.

[34] Additionally, the Crown seeks:

(a) A DNA order under s. 487.051 of the Criminal Code in respect of the three offences which are secondary offences.

(b) An order pursuant to s. 109 of the Criminal Code that Mr. Izaz be prohibited from carrying or applying for weapons for 10 years; and

[35] The Crown presented several authorities that suggest a custodial sentence of between 36 and 42 months is appropriate in the circumstances of this case.

[36] The Crown submits that, after the shooting at the Community Centre, Mr. Izaz continued to drive through a Toronto neighbourhood for another 2.1 to 2.4 kilometres knowing that he was doing so with a loaded, prohibited weapon and the shooters in the car. His decision to continue driving posed a significant risk to the public. Mr. Izaz would have continued driving but for the police take down, though for how much longer can never be known.

[37] The Crown acknowledges that, in terms of mitigating factors, Mr. Izaz is a young, first-time offender. However, appellate courts have repeatedly emphasized that denunciation and deterrence are the key sentencing principles to deter offenders from possessing illegal firearms.

Sentencing Position of the Defence

[38] The Defence submits that the appropriate sentence for Mr. Izaz is a conditional sentence of 18 months to be served in the community.

[39] The Defence does not take issue with the ancillary orders requested by the Crown.

[40] The Defence submits that Mr. Izaz has strong rehabilitative potential. He is a young, first-time offender. He has been admitted to the University of Guelph. He has expressed remorse for his actions. While his criminal conduct cannot be likened to a regulatory breach, it is not as if Mr. Izaz possessed the firearm found in the glove compartment as a tool of his criminal trade. That the firearm was brought into the vehicle by someone else, presumably one of the shooters, diminishes Mr. Izaz’s moral culpability. His possession of the firearm lasted for only about 5 minutes.

[41] The Defence presented its own set of cases in support of its request for an 18-month conditional sentence.

Discussion

[42] I agree with the comments of Stribopoulos J. in R. v. Barreira, 2024 ONSC 4682 concerning the appropriate range of sentences for firearms offences:

[32] The gravity of gun crimes cannot be exaggerated. Guns intimidate, they maim, and they kill. They are implements of human destruction. That is why criminals seek to possess and use them. The cases recognize that unlawful firearms are a scourge in our community, and their possession must be discouraged through exemplary sentences that denounce and deter their possession and use, and thereby enhance public safety: see R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Mohiadin, 2021 ONCA 122, at para. 12.

[33] Further, as the Court of Appeal has recognized, “[d]enunciation and deterrence assume places of prominence in determining a fit sentence for crimes involving firearms, especially loaded semi-automatic firearms in the possession of drug traffickers”: R. v. Mohammed, 2017 ONCA 691, at para. 6.

[34] In Nur, in affirming the Ontario Court of Appeal's decision, the Supreme Court of Canada agreed with Justice Doherty that firearm offences fall along a spectrum, with regulatory infractions at one end and guns used for criminal purposes at the other. Cases falling near the “true crime” end of the spectrum warrant sentences of three years or more. Writing for the majority in Nur, Chief Justice McLachlin explained, at para. 82:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. ... [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

[Underlining added]

[35] Since Nur courts have often imposed sentences approaching or at the maximum reformatory range (two years less a day) in cases involving first offenders who unlawfully possess a restricted firearm but have not otherwise engaged criminal activity: see R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30; R. v. Filian-Jiminez, 2014 ONCA 601 (18 months); R. v. Boussoulas, 2015 ONSC 1536, aff'd 2018 ONCA 222, 407 C.R.R. (2d) 44 (21 months); R. v. Shomonov, 2016 ONSC 4015 (21 months); R. v. Downey, 2017 ONCA 789(two years less a day); R. v. Hassan, 2023 ONSC 5040(two years less a day).

[36] In such cases, where exceptional circumstances were also present, sentencing judges have even imposed conditional sentences. For example, they have done so in cases where Morris factors mitigated an offender’s degree of responsibility and/or where the offenders had already made considerable strides toward rehabilitation: see R. v. Moses, 2022 ONSC 332 (conditional sentence of two years less a day); R. v. Stewart, 2022 ONSC 6997(same); R. v. Beharry, 2022 ONSC 4370, at paras. 30-31 (same); R. v. Ramos, 2023 ONSC 1094(same); R. v. Marier, 2023 ONSC 5194(same); R. v. Stewart, 2024 ONSC 281(same); R. v. Roy, [2023] O.J. No. 4931 (S.C.J.) (18-month conditional sentence).

[37] In contrast, offenders with prior criminal records, even those who are youthful, tend to receive sentences of three years of imprisonment: see R. v. Bedward, 2016 ONSC 939(three years); R. v. Jama, 2018 ONSC 1252(same); R. v. Johnson, 2022 ONSC 2688(same).

[43] In R. v. George, 2024 ONSC 6016, Penman J. also commented on the appropriate sentence for loaded firearm possession offences for well-situated first-time offenders:

[74] Loaded firearm possession for first offenders typically attracts a sentence in the range of 3 to 5 years. Sentences at the higher end of the range are typically applied where there is evidence that a firearm was possessed in connection with other criminality, such as drug trafficking connected to the firearm possession: R. v. Marshall, 2015 ONCA 692, at paras. 47-48; R. v. Graham, 2018 ONSC 6817, at para. 38, aff’d 2020 ONCA 692; R. v. Beharry, 2022 ONSC 4370, at para. 31.

[75] For example, in R. v. Carrol, 2014 ONSC 2063, Molloy J. analyzed the effect of Nur and R. v. Smickle, 2013 ONCA 678 on the appropriate range of sentence for well-situated first offenders. Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held that 2 years less a day to 3 years was now the appropriate range of sentence in this kind of first s. 95 offence case involving well situated first offenders.

[44] Some of the above caselaw was well summarized by Himel J. in R. v. Papilota, 2024 ONSC 4065:

[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.

[45] On the facts in Papilota, the accused pleaded guilty to charges of possession of a non-restricted firearm while knowingly not being the holder of a licence permitting such possession. He was sentenced to two years less a day served as a conditional sentence, and two years of probation. The accused, a first-time offender with strong rehabilitative potential, had possession of an unloaded shotgun and a loaded Glock 17 in his home.

[46] In R. v. Desmond-Robinson, 2022 ONCA 369, the Ontario Court of Appeal held that a sentence of two years less a day served in the community as a conditional sentence followed by two years of probation for a firearm offence was appropriate for an offender with no criminal record who had made a terrible error in judgment.

[47] I also find the case of R. v. Bajraktari, 2024 ONSC 4536, which has several factual similarities with Mr. Izaz’s case, to be instructive. Mr. Bajraktari was a back-seated passenger in a Nissan parked in front of an Ultramar gas station store. The police detained Mr. Bajraktari for an investigation into potential Liquor Licence Act violations after finding an open bottle of wine in the front passenger footwell. After removing Mr. Bajraktari from the vehicle, police located a Glock 45 handgun loaded with 27 rounds of 9 mm bullets in a satchel located at Mr. Bajraktari’s feet. Mr. Bajraktari was 21 years old at the time of sentencing. At the time of the offence, he had just turned 19. He had no criminal record but had some outstanding new charges. He was born in Italy to Albanian parents. He had two older brothers and, at age seven, his parents divorced.

[48] Unlike Mr. Izaz, Mr. Bajraktari recalled an unhappy childhood due to conflict between his parents. His father was eventually diagnosed with schizophrenia and his mother became the sole breadwinner as a chef. Sugunasiri J. sentenced Mr. Bajraktari to a sentence of two years less a day to be served in the community.

Aggravating Factors and Mitigating Factors

[49] The aggravating factors are that Mr. Izaz possessed the loaded, prohibited firearm in a moving vehicle with five other individuals as it fled from the scene of a brazen shooting. The shooters and the firearm that he was aware of were in the car for at least five minutes before police intercepted the vehicle at gunpoint. The risk level to the public and occupants of the car was high.

[50] The mitigating factors are that Mr. Izaz had just turned 18 at the time of his criminal conduct. He has no prior criminal record and he constructively possessed the firearm for five minutes. He has expressed remorse and appears to have recognized the gravity and danger of his offences. Notwithstanding the separation of his parents, he has a close relationship with each of them.

[51] He has strong rehabilitative potential. He did well academically in high school and has been admitted to the University of Guelph. At least on paper, he has started a car detailing business and has a group of supportive friends. There are no alcohol or drug dependency issues and his mental health appears sound.

Sentencing Decision

[52] I am guided by the principles of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. An appropriate sentence is one that reflects a realistic appraisal of the offender’s prospects for rehabilitation, his individual and family circumstances, and the principle of restraint.

[53] I find that a conditional sentence of two years less a day to be served in the community is just for the following reasons.

A sentence of two years less a day is appropriate

[54] Mr. Izaz falls into that category of well-situated first-time offenders where the very low end of the sentencing range of two years less a day is appropriate. Such sentences are available even in the absence of the offender pleading guilty: see, for example, Bajraktari; R. v. Beharry, 2022 ONSC 4370; R. v. Stewart, 2022 ONSC 6997.

[55] Mr. Izaz was barely an adult when he committed his offences and the duration of his firearm possession lasted five minutes. It is tempting to suggest that he may have continued to drive around for hours longer, but that is speculation.

[56] On the unique facts of this case, notwithstanding the fact that the firearm that Mr. Izaz constructively possessed was associated with a serious crime – the shooting of two victims – I cannot say that Mr. Izaz used the firearm as a tool to commit some other crime. Further, Mr. Izaz was not responsible for bringing the firearm into the vehicle. These facts reduce the degree of moral culpability within the spectrum of firearm possession charges.

[57] Mr. Izaz is of South Asian origin. He experienced some discrimination growing up, but I do not place him in the same category as Black Canadian offenders (R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641).

[58] It bears repeating that Mr. Izaz is a youthful first offender with family support and strong rehabilitative potential: R. v. E.N., 2024 ONCA 472, at para. 18. The principle of restraint serves to minimize a youthful first offender’s sentence in that it requires a sentencing judge to consider all sanctions apart from incarceration and where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender: R. v Desir, 2021 ONCA 486, at para. 41, citing R. v. Batisse, 2009 ONCA 114, R. v. Priest, 1996 CanLII 1382.

[59] Having decided that a sentence in the reformatory range is a fit one, I turn to whether Mr. Izaz should serve this sentence in the community.

A conditional sentence to be served in the community is appropriate

[60] First, under s. 742.1 of the Criminal Code the court may impose a jail sentence of less than two years to be served in the community if the offence is not one on the excluded list of offences and does not have an attached minimum sentence.

[61] Mr. Izaz’s offences fit those criteria, and so a conditional sentence is available.

[62] Second, a conditional sentence must not endanger the safety of the community and it must be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2.

[63] Regarding conditional sentences and the fundamental purpose of sentencing, the Supreme Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 22, stated:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. [Emphasis in original.]

[64] I do not find that Mr. Izaz serving his sentence in the community will endanger its safety and I find that such a sentence remains consistent with the fundamental purpose and principles of sentencing.

Discussion of Credits

[65] Mr. Izaz served 17 days of pre-sentence custody from April 25 to May 11, 2021. He is entitled to 26 days of Summers credit.

[66] He was then on house arrest with ankle monitoring from May 11, 2021 to March 8, 2023. The Defence submits that since Mr. Izaz spent 22 months under full house arrest and his bail conditions were very restrictive, he should receive a Downes credit based on a ratio of 1 day credit for every 4 days under house arrest.

[67] I adopt the comments of Schreck J. in Beharry:

[34] Time spent subject to restrictive bail conditions should be taken into account: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.), at para. 33. This is a mitigating factor which must be considered in arriving at a fit sentence: 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.

[68] In this case, I have considered the time Mr. Izaz spent subject to restrictive bail conditions, but I do not intend to assign a specific amount to it. I exercise my discretion and have considered this factor in fashioning the overall sentence.

Conclusion

Sentence

[69] In conclusion, Mr. Izaz is sentenced to:

(a) Under Count 7 - Possession of a loaded prohibited device (Over Capacity Magazine), contrary to s. 91(2) – 18 months to be served concurrent to Count 9.

(b) Under Count 8 - Occupy motor vehicle knowing a firearm (Glock Model 21) was in it, contrary to s. 94(2) – 18 months to be served concurrent to Count 9.

(c) Under Count 9 - Possession of a loaded prohibited firearm (Glock Model 21) without being the holder of an authorization or licence permitting such possession, contrary to s. 95(1) – Two years less a day.

[70] Accordingly, I impose an effective sentence of imprisonment of two years less one day to be served in the community as a conditional sentence. I recognize that Mr. Izaz served 17 days in custody and he is credited with 26 days in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] S.C.R. 575.

[71] The sentence of two years less 27 days served as a conditional sentence shall have the following terms: in addition to the statutory conditions in s. 742.3 which I impose, Mr. Izaz shall reside at [redacted] Kennedy Road in Scarborough, Toronto with his father 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.

[72] 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.

[73] I have signed an Adult Conditional Sentence Order (CSO) that specifies the terms of Mr. Izaz’s conditional sentence. In the event of any inconsistency between these Reasons for Sentence and the CSO, the CSO prevails.

Probation

[74] Following this period of confinement, Mr. Izaz 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 thereof 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.

Ancillary Orders

[75] I also order that Mr. Izaz be subject to:

(a) A DNA order under s. 487.051 of the Criminal Code in respect of counts which are secondary designated offences;

(b) An order that Mr. Izaz be prohibited from carrying or applying for weapons for 10 years, pursuant to section 109 of the Criminal Code;

Pinto J.

Released: December 13, 2024

R. v. Izaz, 2024 ONSC 6460

Case Summary

SENTENCING DECISION

Overview

Victim Impact Statements

Circumstances of the Offender

Pre-Sentence Report

Sentencing Position of the Crown

Sentencing Position of the Defence

Discussion

Aggravating Factors and Mitigating Factors

Sentencing Decision

A sentence of two years less a day is appropriate

A conditional sentence to be served in the community is appropriate

Discussion of Credits

Conclusion

Sentence

Probation

Ancillary Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 11

Legal Tests 2

Legislation 1