COURT FILE NO.: CR-22-40000587
DATE: 20240215
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Barry Stagg and Joshua Tupper, for the Crown
- and -
JONATHAN KOZUCH
Ari Goldkind, for the Defendant
Defendant
HEARD: January 22, 2024,
at Toronto, Ontario
Michael G. Quigley J.
Amended Reasons For Sentence[^1]
Overview.. 2
A. The Statutory Considerations. 2
(i) The nature of the offences and the circumstances surrounding their commission. 2
(a) Paragraph 10. 5
(b) Paragraph 11:. 6
(c) Paragraph 15:. 6
(d) Paragraph 16:. 7
(ii) Findings of fact 9
(iii) The character and circumstances of the offender. 11
(iv) The recommendations of the jury. 14
B. The Victim Impact Statements. 14
C. Analysis and conclusions. 17
(i) Findings and Appropriate Range. 17
(ii) Aggravating and Mitigating Circumstances. 22
D. Conclusions. 24
E. Disposition and Orders. 25
Overview
[1] On October 8, 2023, Jonathan Kozuch was arraigned before me on an indictment charging him with the second-degree murder of Floreano Lopes.[^2] On November 2, 2023, after 2 days of deliberation, the jury found Mr. Kozuch guilty as charged. He is before the court today for sentencing.
[2] Under ss. 235(1) and 745(c) of the Criminal Code (the “Code”), the sentence required to be imposed on Mr. Kozuch is a term of imprisonment for life, without eligibility for parole until he has served at least 10 years. However, under s. 745.4 it is open to me to increase the period of parole ineligibility from 10 years to a maximum of 25 years, after considering Mr. Kozuch’s character, the nature of the offence, the circumstances surrounding its commission, and the recommendations of the jury.
[3] In R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 (S.C.C), Justice Iacobucci observed at paragraph 27, that while the general rule, in a median number of cases, might still see the minimum period of parole ineligibility set at 10 years, it would not be unusual, taking account of the statutory criteria now found in s. 745.4, for a trial judge to exercise his discretion to determine that the offender should be required to wait for a longer period of time to pass before having his suitability assessed, to be released into the general public.
[4] In this case, Crown counsel advocates for a minimum period of parole ineligibility of fifteen years, while defence counsel submits that the circumstances here call for the minimum 10-year period of ineligibility, or at the most, within the low range which he assesses at ten to twelve years.
A. The Statutory Considerations
(i) The nature of the offences and the circumstances surrounding their commission
[5] I begin with a consideration of the nature of the offence, the circumstances surrounding its commission, and the fact-finding process I am required to engage in to determine the facts in this case. I must make findings on what the jury decided: what were the facts essential to their decision and what additional facts did they find?
[6] There were two alternative routes to culpability put to the jury, the first described in paragraphs 229(a)(i) and (ii), and the second under subsection 229(c) of the Code. Both pathways were potentially embraced within the general words of the Indictment charging Mr. Kozuch with second-degree murder.
[7] On the first route, the jury was instructed that they could not return a verdict of guilty of murder under paragraphs 229(a)(i) and (ii), unless they were satisfied beyond a reasonable doubt that Mr. Kozuch fired the shot that killed Mr. Lopes, that he fired it intentionally (i.e, that the gun was not discharged accidentally), and that he either meant to kill Mr. Lopes or to cause him bodily harm that he knew was likely to kill him and he was reckless whether he died or not. All of those facts, therefore, were essential to the jury’s verdict, if they found culpability on the basis of this first route.
[8] The second route to culpability for homicide under ss. 229229(c) is different. Unlike the first route, it did not require proof of an intention on Mr. Kozuch’s part to cause death or bodily harm to Mr. Lopes. On this second route, the jury was instructed that they could not return a verdict of guilty of murder unless they were satisfied beyond a reasonable doubt that Mr. Kozuch was in pursuit of an unlawful object, that he did something dangerous in pursuit of that unlawful object that he knew was likely to cause Mr. Lopes’ death, and that Mr. Lopes’ death ensued, notwithstanding that Mr. Kozuch did not desire to cause death or bodily harm to Mr. Lopes in the course of pursuing that unlawful object. All of these facts, therefore, were essential to the jury’s verdict, if they found culpability on the basis of the second route.
[9] The jury was also instructed on the lesser but included offence of manslaughter and on the defences of self-defence and intoxication. Plainly, the jury found no scope on the evidence to support that Mr. Kozuch acted in self-defence, or a verdict of manslaughter based on intoxication. Neither did they conclude that a verdict of manslaughter was required, rather than second degree murder, based upon a reasonable doubt about Mr. Kozuch’s state of mind and whether he had the requisite intent for murder.
[10] That leaves the principal question, namely, the basis of the jury’s finding of guilt on second degree murder, and which of the two routes to culpability they found to be applicable.
[11] Subsection 724(2) of the Criminal Code provides as follows:
(2) Where the court is composed of a judge and jury, the court
a) Shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
b) May find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[12] Where there is a dispute with respect to “any other relevant fact”, as put forward by either party, further evidence is required unless I am satisfied that sufficient evidence was adduced at the trial to permit me to determine whether that fact can be found to be true. Generally, I must be satisfied of the existence of a disputed fact on the balance of probabilities, but if the fact is an aggravating fact, then the law requires that I be satisfied of its truth beyond a reasonable doubt.
[13] Crown counsel put forward a description under paragraph 724(2)(a) of the Code of the events that he submits were “facts that were essential” to the jury’s verdict that Mr. Kozuch was guilty of second-degree murder, or “additional facts” that can be found on the evidence.
[14] Defence counsel agrees that most of these factual assertions are true, as do I, but asserts that the evidence at trial cannot factually support the phraseology used by Crown counsel in certain paragraphs of the chronology or show that they were essential to the jury’s verdict. At the end of this section, I reproduce the list of facts as I find them and that I can and do find to be true on the evidence taking account of the four disputed paragraphs. But before that, I set out my findings relative to the defence objections to the wording that was proposed.
[15] It is the position of the defence that the wording in paragraphs, 11, 12, 15, and 16, strays from being proven or essential to the jury’s verdict. The court “may” find other relevant facts but the defence submits that tremendous caution is called for in the unusual circumstances of this case, consistent with the direction of appellate decisions that a sentencing judge must exercise considerable care and restraint in determining the facts that were essential to the jury’s verdict.
[16] In R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 73, the Supreme Court explained the importance of fashioning an appropriate sentence to the offence committed and the moral blameworthiness of the offender:
…In our system of justice, the ultimate protection against excessive criminal punishment lies within a sentencing judge's overriding duty to fashion a ‘just and appropriate’ punishment which is ‘proportional to the overall culpability of the offender.’ To achieve this objective, ‘the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.’
[17] In R. v. Ferguson, 2008 SCC 6, then Chief Justice McLachlin explained that ss. 724(2) contains a two-pronged analysis. First, the sentencing judge “is bound by the express and implied factual implications of the jury's verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, at p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury. Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts. Aggravating facts require the judge to be convinced of the existence of that fact beyond a reasonable doubt. To rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities ... The question is, what are the issues on sentencing and what facts must be found as necessary, to deal with those issues.
[18] Finally, in R. v. Moreira, 2021 ONCA 507, the Court of Appeal considered these authorities on an appeal dealing directly with the application of ss. 724(2). In finding that the sentencing judge erred, the court explained that the judge must attempt to identify the express or implied factual implications of the verdict on material issues. Where there is ambiguity, the sentencing judge must make their own determination of the relevant facts, but not arrive at findings inconsistent with the jury’s verdicts: see e.g., R. v. L.M., 2014 ONCA 640, at paras. 48-51.
[19] Defence counsel here submitted that the Crown’s submissions on what facts the jury must have found as expressed in the italicized words, in each of these paragraphs is, at best, what the jury “could have found”. I consider each of these submissions in turn.
(a) Paragraph 10
[20] The impugned language is that Mr. Kozuch: (i) knew the lethal power of the handgun he brought with him; and (ii) that he discharged the shot from the handgun that hit Mr. Lopes and that resulted in his death. No evidence was presented that Mr. Kozuch knew that the firearm was loaded, although that could be reasonably inferred. Whether Mr. Kozuch knew of the “lethal power” of the Glöck, it was not a fact necessary to the jury’s verdict. It is enough that he knew he possessed a firearm that was loaded, and ready to fire. “Firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person: R. v. Dunn, 2013 ONCA 539.
[21] Secondly, counsel claims the language of paragraph 10 ignores that the pathologist was clear and unequivocal that the pathway of the bullet that killed Mr. Lopes was not direct, but rather interrupted. I do accept the submission that the moral blameworthiness of an offender who fires point blank at a victim is different from that of an offender who has fired a gun during a physical altercation where the bullet strike may have been inadvertent. The uncertainty must be resolved in favour of the offender. I have amended this language to clarify the point in accordance with the unchallenged evidence of the pathologist
(b) Paragraph 11:
[22] Neither the video compilation in Exhibit 2 nor the testimony of the witnesses called revealed anyone holding the firearm until it was observed in the hand of Mr. Lopes as he lay on the ground after the shots were fired. However, I reject that no evidence was presented that could have established that the handgun was in the possession and control of Mr. Kozuch when the altercation with Mr. Lopes began.
[23] To the contrary, the location after the fact of the backpack on the ground beside the door to the cube van, but with the handgun removed, is very strong inferential evidence, when combined with the shots having been fired in front of the truck, and the firearm found, again in front of the truck after the shooting, that it would necessarily have had to be in Mr. Kozuch’s possession and control when the altercation started. In my view, that was the only reasonable inference: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The jury would certainly have concluded on the whole of the evidence that it was Mr. Kozuch who introduced the firearm to the altercation. The exact timing of when that moment occurred does not alter the result.
(c) Paragraph 15:
[24] It is not essential to the jury’s verdict to determine who started the confrontation that left Mr. Lopes bleeding to death on the asphalt. Nonetheless, what is important, and I do find, is that the jury would have concluded that the fracas commenced when Mr. Kozuch was attempting to gain access to the cube van, whatever his intent at that time may have been. Mr. Lopes came up and pulled him away from that door from behind. The altercation commenced at that moment.
[25] Who landed the first punch will never be known, but the video evidence and Ms. South’s testimony does show Mr. Lopes repeatedly punching Mr. Kozuch. Whether it was Mr. Kozuch who “started the confrontation” or not, does not diminish the jury’s obvious finding that it was Mr. Kozuch who introduced the firearm into the altercation. That was the principle focus of the evidence and the Crown’s submissions. He could only have introduced the firearm into the mix if he was in possession and control of it at that time, as the jury must necessarily have concluded. That conclusion necessarily means it was available to Mr. Kozuch for use during the fight between he and Mr. Lopes.
(d) Paragraph 16:
[26] Finally, I come to paragraph 16, and the proposition the Crown advances in support of a longer period of parole ineligibility, that the offender “entered the confrontation while in possession of his loaded handgun, demonstrating a plan that included the option of using the firearm…”
[27] This is a more complex question that requires more in-depth consideration based upon the evidence and the relevant caselaw. Virtually the entirety of Crown counsel’s submissions on the facts here related to his claim that “there was a plan.”
[28] Planning and deliberation are elements which, if found, will give rise to a conviction of first-degree murder. Here, there was no allegation of deliberation, and that explains a charge of second-degree murder. However, I am unable to agree with the Crown that there was “a plan” here, at least in the sense that he described it.
[29] Crown counsel described this plan in several slightly different ways in his submissions, but in the R. v. Hayles-Wilson decision that the Crown relies upon, there is extensive evident planning: 2018 ONSC 4337(S.C.J.). It is also important not to gloss over that Hayles-Wilson involved a charge of first-degree murder, not second, but the defendant was convicted of second-degree murder because of the absence of evidence of deliberation beyond a reasonable doubt. On the facts of that case, however, while deliberation was absent Code J. accepted that planning had been made out.
[30] The presence of planning, if established, will obviously be an aggravating fact, and it was certainly advanced by Crown counsel for that purpose in favour of the fifteen-year period of parole ineligibility it seeks. On the other hand, an absence of planning is a mitigating factor.
[31] Several decisions of long standing provide insight into the concept of planning, from the criminal law perspective. A planned murder refers to one that is “conceived and carefully thought out prior to being committed”; it must have “a design or scheme and be arranged beforehand”: see R. v. Nygard, 1989 6 (SCC), [1989] 2 S.C.R. 1074 at para. 18 per Cory J.; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, at para 26. A killing is only planned when “done after real consideration, and not suddenly or impulsively”: see R. v. Coleman, 1991 338 (B.C. C.A.), per McEachern C.J.
[32] In their pre-eminent text, Ruby, Chan and Hasan on Sentencing (8th Ed.), the authors address the presence or absence of planning as an aggravating or mitigating factor on sentencing: see paras. 5.4 to 5.10, and in particular para. 5.4:
The court will always have recourse to an examination of the manner and method by which the offence was committed. Sophisticated, planned activity is contrasted with impulsive and isolated crimes. Those who are capable of great sophistication and careful planning are capable of doing more harm as criminals because of their greater abilities. They constitute a greater danger to society. Their planning gives them time to reflect before they act.
And at para. 5.9:
The absence of planning and premeditation will often act as a mitigating factor: a spur of the moment, offence or panic attempt, where the offender is merely taking advantage of an opportunity offered to him, is the usual occurrence. But even in the case of impulsive acts, other factors in the context must be examined to determine whether there really is a low level of culpability. In Butler; Dorey et al., the offender had entered his plea to an escape custody charge, and the court noted that he had, “fled the court in panic.” In Evans, “the assault was an emotional ‘spur of the moment’ flare-up, contrasted to a planned and deliberate assault carried out after careful premeditation.
[33] I decline to accept the Crown’s submission that there was planning, at least in the sense that Crown counsel described it. The video footage shows what was done and what happened, the steps that were taken and the chronology of events, but, as in these authorities, the word plan has a notion of exactly what it suggests, that you know ahead of time what it is that you are intending to do.
[34] Instead, I see a series of random, bizarre, and unexplainable events tied together by a timeline, and little else. I am unable to accept that there was planning to Mr. Kozuch backing up his white truck at considerable speed and hitting and then getting stuck on the sidewalk median. That was not planned. Neither was it planned to get out of the white truck and get into and steal the black truck: it was opportunistic. It was simply what Mr. Kozuch did to get out of that situation. Those are the events that happened, but they do not entail a plan, and in my view, the jury did not need to find a plan to have reached the verdict they did.
[35] What is a constant, however, and aggravating, is that from the start of the video with him leaving the apartment, until the moment that the altercation commences with Mr. Lopes, Mr. Kozuch was in possession and control of a dangerous object, his firearm and magazines of ammunition stored in the backpack at all material times, his “armoury” as the Crown described it.
[36] It is also beyond doubt that Mr. Kosuch was “armed”, i.e., in possession and control of the loaded handgun, when the backpack was left by the door of the cube van with the firearm having been removed, and he engages in the altercation with Mr. Lopes. He is armed. He who introduces the loaded firearm into the fight with Mr. Lopes. Less than a minute later, the firearm discharges two rounds, one hitting Mr. Lopes, and causing his death a short time later.
[37] I have great doubt that the jury found that Mr. Kozuch had the plan the Crown attributes to him. What I do know with certainty is that the jury most certainly found that Mr. Kozuch did introduce the loaded firearm into the altercation with Mr. Lopes, causing his death unlawfully, whether he had the intent required under s. 2229(a)(i) and (ii), or did not, but is culpable for having introduced a dangerous object into an altercation as he was in pursuit of an unlawful object, as required by s. 2229(c).
(ii) Findings of fact
[38] In the result, for the purposes of this sentencing, I find that the following facts were found by the jury in this case to be “essential” facts and “any additional facts.” I have amended former paragraphs 10, 11, and 15 as requested and other paragraphs as shown in the strikeout and underlined text. Any other changes I have made to the language is identified the same way. I have deleted former paragraph 16 as unnecessary and unproven. Finally, I have changed the ordering of the paragraphs considerably to better reflect my view of the chronology and to eliminate duplication and redundancies:
(i) On September 3, 2021, Jonathan Kozuch murdered Mr. Floreano Lopes by shooting and killing him with his firearm, namely a handgun.
(a) The handgun was a Glöck 9mm (millimetre) Model 17 firearm with serial number ABFL211 that had been modified from a semi-automatic firearm to a fully automatic firearm. It is not known when or by whom the firearm was modified.
(b) A semi-automatic firearm will discharge only one shot every time the trigger is pulled. A fully automatic firearm fires continually until the trigger is released.
(c) The handgun functioned as a fully automatic firearm during test fires.
(d) A firearm in a fully automatic state may fire more than one round with a single trigger pull. It is not possible to determine how many times the trigger was pulled in this case.
(ii) Jonathan Kozuch drove from Limestone Crescent, Toronto to the murder scene on Steeles Avenue, Toronto, driving a black pickup truck he had stolen from Mr. Zea Yokhana at Limestone Crescent.
(iii) Jonathan Kozuch brought the handgun with him when he drove from Limestone Crescent, Toronto to the scene of the murder on Steeles Avenue, Toronto.
(iv) The handgun was loaded with functioning ammunition and was ready to fire when Jonathan Kozuch arrived at the scene of the murder on Steeles Avenue, Toronto.
(v) Jonathan Kozuch drove the truck he had stolen at Limestone Crescent recklessly and in a dangerous manner and caused it to collide with a van at the work site on Steeles Avenue. He left that truck and attempted to steal the van.
(vi) In the course of trying to steal the van, Jonathan Kozuch was confronted by Mr. Floreano Lopes. They fought.
(vii) Jonathan Kozuch possessed the loaded handgun and became engaged in the confrontation with Mr. Floreano Lopes while in possession and control of the loaded handgun.
(viii) Jonathan Kozuch had access to the handgun he had brought with him. He had the loaded handgun in his possession and had it available to him as the confrontation started. He resorted to use of the loaded handgun in the fight with Mr. Floreano Lopes.
(ix) It was his decision, made while the confrontation was ongoing, to utilize his gun against Mr. Floreano Lopes. That led to him murdering Mr. Lopes.
(x) Jonathan Kozuch pulled the trigger and fired the handgun, and as a result a shot was fired which entered the right calf of Mr. Floreano Lopes at an oblique angle and travelled up his leg, causing catastrophic, fatal wounds.
(xi) When Jonathan Kozuch fired the handgun knowing its lethal power the path of the bullet that was discharged from the handgun and that hit Mr. Lopes and caused his death was not direct, but rather interrupted by an unknown intermediate object or force.
(xii) Jonathan Kozuch’s dangerous act of using the loaded handgun was the cause of the injuries that killed Mr. Floreano Lopes, who was unarmed when he was shot and murdered by Mr. Kozuch.
(xiii) Mr. Floreano Lopes bled to death as a result of being shot by Jonathan Kozuch.
(xiv) Jonathan Kozuch killed Mr. Floreano Lopes in the open, in public, in the middle of the day, at the worksite on Steeles Avenue where Mr. Lopes was employed as a construction worker. He was doing his job when this senseless murder took place.
(xv) I find these are the essential or additional facts that are proven on the evidence and that the jury would have and did find that this is how the way that Jonathan Kozuch murdered Mr. Floreano Lopes.
(iii) The character and circumstances of the offender
[39] The second matter that I am required to take into account in making a decision with respect to parole ineligibility is the character of the offender.
[40] The Pre-Sentence Report (PSR) discloses that Mr. Kozuch is Canadian and presently 39 years of age. He is single and has no fixed address. He does have two minor children from a prior relationship. He was an only child and had a father who was bipolar, and who passed away when Mr. Kozuch was 15. He suffered physical and emotional abuse at the hand of his father according to him and others in his family who observed it first-hand.
[41] He is the last child in a sib-line of 5 with two half siblings from both his father’s and mother’s side. He was raised by both parents until the age of fifteen when he lost his father. He maintains that he has a great relationship with his half-sister Alikee Beach but not any of his half-brothers.
[42] Mr. Kozuch’s mother, Rita, described his childhood as less than favourable. She believes that he inherited mental health issues from his father that went undiagnosed and unmedicated, and which had a negative impact on his childhood. She believes he was also bi-polar and exhibited the same traits as his father, but to a lesser degree. She hopes he will receive treatment while incarcerated.
[43] The probation officer asked Mr. Kozuch questions about how the offence occurred. Mr. Kozuch and Mr. Lopes did not know each other. On the day of the offence, Mr. Kozuch was high on cocaine, marijuana and alcohol. He had been off cocaine for a couple of months prior to using it the night before and on the day of the offence. He told the parole officer he had plans to meet up with a friend later that day. He did not know why he left his residence when he did. He claimed to feel “bad vibes” in the apartment which made him uncomfortable, so he left on the morning of September 3.
[44] He expressed remorse for his actions and emphasized that he was not in the right frame of mind on that day and could not explain what happened. When asked for the reasoning behind carrying a weapon, however, Mr. Kozuch refused to speak about this further.
[45] Mr. Kozuch’s medical records from the incident were disclosed by the Crown. They showed that he also suffered injuries during the Steeles Avenue incident, including being shot in the hand.
[46] During his time in custody, Mr. Kozuch has availed himself of opportunities for spiritual and psychological education within the TSDC. He has completed a multiweek Biblical Studies course, and he has been baptized in detention, on July 19, 2022). He has completed the The John Howard Society’s Anger Management course and a program on Supportive Relationships. These facts demonstrate that Mr. Kozuch has attempted to put his time to good use while incarcerated.
[47] An offender’s character can also be discerned from his criminal antecedents. Those antecedents may influence the period of parole ineligibility in many cases, but I find they do not in this case.
[48] Mr. Kozuch has convictions dating back to 1999, when he was a young person. Since 2004, he has 14 adult convictions, but, notably, all were dealt with in the Ontario Court of Justice: motor vehicle and driving related offences, drug offences, theft and other property related offences failing to comply with court orders and two convictions for identity theft. His longest sentence was 12-months conditional, with various shorter duration custodial terms and numerous probation periods. He has never served more than 79 days of time in jail. This is the first time he has been in Superior Court.
[49] The point that jumps out is that this is generally a non-violent record of petty crime. Unlike in so many other homicide cases, including Hayles-Wilson with the significant violent antecedents of that offender, there are no prior convictions for firearms offences, or for offences involving violence. Mr. Kozuch’s record is not one that would reasonably predict his involvement in a homicide. It does not show a prior escalation of egregiousness and moral culpability. As tragic and senseless as the events were of September 3, 2021, I accept that his history of non-violent offences does support counsel’s submission that they are seemingly “out of character” for Mr. Kozuch.
[50] The most disconcerting part of Mr. Kozuch’s record relates to his multiple convictions for driving while disqualified; dangerous operation and theft of a motor vehicle, all behaviour’s that were present and caused damage and injury in this case, but since all of those convictions predated this offence by more than three years, they do not influence my decision in any material way.
[51] On the other hand, letters of reference written on his behalf seemingly describe a very different person than is before the court. Letters were received from Tiffany Brigley, a long-time family friend, and sister-in-law of Mr. Kozuch’s sister, Alikee Beach, who also wrote in support of the offender, her brother. Letters were received from Andy Beach, Mr. Kozuch’s brother-in-law, his nephew Ben Beach, his mother, Rita Kozuch, and his Pastor at TSDC, Reverend Ansford Pearson.
[52] There are always supportive letters of reference provided on the sentencing of offenders by family, friends and sometimes employers or religious leaders in the community. They also can provide insight into the character and potential of the offender, to assist in developing a suitable program for his psychological needs and rehabilitation while in the penitentiary.
[53] His sister, Alikee Beach, has been a teacher for special needs children for over 20 years. She provides personal insight into the abusive childhood she and the offender experienced at the hands of their father. She wrote that they grew up at the hands of a very abusive father. Growing up in a constant state of trauma, has led Mr. Kozuch to a life of struggle (including PTSD), including with addictions, as he has tried to dull the pain of the past and the ensuing mental health conditions. It is the intertwinement of these two issues, an abusive childhood and substance abuse, that she believes led the offender to this day in court. She has sought on many occasions to get help for him and hopes he will now receive that help while incarcerated. She concluded saying:
At the end of the day, I hope you can understand that he has a family that loves him, and wants to see him find his way onto a path where he can lead a successful and productive life, where he will have finally got the help he needs to support his mental health struggles and addictions and can lead a life he is proud of. That's all we want for him, and I know what he wants for himself.
[54] His brother-in-law, Andy Beach, provides perspective as the husband of Mr. Kozuch’s sister, and as a person who has seen the effects of an abusive childhood on his wife, and Mr. Kozuch. He says the offender has always been kind and loving to him and their family, and he has never seen him do anything violent in any way.
[55] His mother Rita Kozuch echoed her daughter’s plea, that steps be taken to assess and treat his mental issues, but more important spoke directly to the Lopes family:
It makes me incredibly sad (as a mother of a child who lost his father) that Mister Lopez's entire family- especially his children and spouse- have had to go through this painful ordeal. I wish to express my condolences through the court to the Lopez family for the suffering and loss they must deal with. Their loss is not over. With the resolution of the trial or sentencing, I can only hope that they can find solace in the cherished memories they have and can share.
[56] Finally, Reverend Pearson spoke to Mr. Kozuch’s willingness to confront his mistakes, take responsibility for his actions, and actively participate in programs designed to foster personal growth and positive change. He expressed his belief that Jonathan Kozuch is not defined solely by his past but has the potential to contribute positively to society with the right support and opportunities for rehabilitation.
(iv) The recommendations of the jury
[57] The third matter that a sentencing judge must consider when determining an appropriate period of parole ineligibility in a murder case is any recommendation made by the jury. In Mr. Kozuch’s case, after retiring to consider the matter, the foreperson announced that eleven of the twelve jurors declined to make any recommendation and that the remaining one juror recommended leaving the ineligibility period at the minimum of ten years.
B. The Victim Impact Statements
[58] This hearing commenced with the introduction of twenty Victim Impact Statements (VIS), introduced into evidence under ss. 722(4) of the Code.
[59] Some of the statements were read into the record by Crown counsel, but by far the majority were read in person. The statements were detailed and articulate, evidencing the care and thought each of the writers had brought to their very sad and challenging task. They were courageous in overcoming their pain to communicate those feelings directly to the Court, to counsel, and particularly to the offender.
[60] The VIS Statements came from Mr. Floreano Lopes’s family, his extended family, and his life-long friends. His wife Tonia, and I believe his daughters, were present every day without fail. A large group of family and attended many, if not most days of the trial, from October 8 until the jury returned a verdict of guilty on November 2, 2024. They included: lifetime friends of Mr. Lopes and his extended family, Cathie Gouveia, Sandra Silva, Luisa Leite-Moniz, and Veronica Dos Santos; his nieces and nephews, Raquel and Dylan Lopes; his cousins Alfredo and Jody Dias; his extended family by marriage, Nancy Morais Lopes, Richard Morais, Dyanne Martinho, Bryan Martinho, and Mario and Alice Morais, parents of Richard and Nancy. They include his brothers and sister, Steve, Nelson and Isabel Lopes; and most importantly, his children, Emily, Vanessa, and Ethan Lopes (video), and finally, Tania Martinho Lopes.
[61] Very deep, significant and painful emotions were expressed in those twenty victim impact statements. It is not possible for me to imagine any feeling person would not be affected emotionally by these statements. It is not possible to reproduce the entirety of the statements read to the court. It would also not do these statements justice to try to summarize all of them, but I do wish to try to convey at least some of the powerful emotions and sense of loss that was described to me and to quote a few illustrative passages.
[62] Cathie Gouveia described herself as Mr. Lopes ‘second mother’. She spoke about the loss experienced by her paraplegic husband. He was a construction worker like almost all of the men in these families. His life was changed in a construction accident which left him paralyzed, but Floreano Lopes encouraged and cared for him. He urged him to push to the next step. The loss of Floreano was very hard for him. It left him heartbroken and crying “my buddy is gone.”
[63] Sandra Silva and Luisa Leite-Moniz, voiced concerns for the safety of construction workers, including family members who work in the sam e industry. Floreano was simply doing his job when he was shot at his workplace. That should have been a safe space. His death as a result of the offender’s criminal choices has left them fearful for the safety of their loved ones at the work site.
[64] A number of family members, especially his children and niece and nephew, felt cheated, not only that they never got to say goodbye to Mr. Lopes, their father or uncle, but also that they did not have a final opportunity to tell him how they loved him and how much fun he was. They despair that he will not be there for the important human milestones they would experience as they grow older, graduations, weddings, and of course, in this family, the famous and much anticipated motorcycle rides with him on his big vintage Harley-Davidson.
[65] His brothers, Steve and Nelson, his sister Isabel, and his brothers and sisters in law, express the enormity of his loss in angry and despondent language. For them, he was a very special and caring man, for whom it was always “family first.” One of them was troubled as she tried to imagine “how [Floriano] felt at the moment when he was being attacked, not realizing that the other guy would have a gun on him and use it against him and realize that he was about to lose his life and never see his family again.”
[66] Richard Morais summed up so much when he said:
Floreano is gone. We will never get to hear his voice again, his contagious laugh - gone. We will never have those nights after hockey where we would just tell jokes and tease each other. He will never watch his kids grow up and live their dreams, he will never get the chance to play hockey with his son or one day walk his daughters down the aisle. Jonathan Kozuch took that all away from all of us.
[67] Finally, Tania Martinho Lopes ended her emotional and heartbreaking statement describing the lives that have been forever affected when they lost a husband, father, brother, son, grandson, uncle, nephew, and friend, courageously delivered in a strong firm voice, in the following words:
Floreano was a wonderful person. He was not a perfect man and never claimed to be, but you always knew where he stood, what was right, and what he believed in. I never went a day doubting his love for myself his wife and mother of his children and his family.
My life stopped on September 3rd, 2021. I have been shocked to the core of my being. I feel battered and bruised, never whole again without him. I can no longer live an ordinary life and my heart suffers from the deepest wound- a wound from which it will never recover.
[68] I found this self-reflection of the circumstances she and her family have experienced, the tragic, emotional, and senseless loss of life, to be emotionally heart wrenching. Several photographs included in the statements show a big, happy, bear of a man, a hardworking man who was trying to provide more for his family than he and his siblings experienced as they grew up. I came to understand that Mr. Lopes was loved because of who he was and what he stood for, not only loved because he shared blood and connections, but because he was admired and deeply respected by his family and friends, as he deserved to be, for who he was, and the values that he adhered to in his life.
[69] I am required to consider these moving victim impact statements, but it is not the principal focus of my task. As incomprehensible as these circumstances are, it must be understood that under our law there is a balancing that is required, and that balancing relates solely to the person who has been convicted of this homicide, Mr. Kozuch.
[70] Here the sentence is plain and clear. Parliament has determined that Mr. Kozuch will receive a life sentence. Contrary to the erroneous belief of some members of the public, a life sentence in Canada is just that: a life sentence. My task is to determine the legal issue of the minimum period of parole eligibility that is called for in this case. That calls for me to more clinically apply all the usual principles of sentencing that are mandated by the Code. That is the analysis I am called upon to undertake.
[71] This court plays no role in the process of considering when, or whether, he may be released on parole. That lies in the sole and exclusive jurisdiction of the Parole Board, based on their statutory criteria. The question to be answered here, applying the relevant principles, is simply when, no earlier than 10 years, may Jonathan Kozuch petition the National Parole Board of Canada to first consider him for release? It should be remembered that when that day comes, if he has not been sufficiently rehabilitated, he will not be released until he is: R. v. Mafi, 2000 BCCA 135.
[72] I turn finally to considering that question based upon the submissions of counsel and the authorities put forward on this hearing.
C. Analysis and conclusions
(i) Findings and Appropriate Range
[73] The Crown’s position is that this is a killing that was carried out at Mr. Floreano Lopes’ workplace, where Jonathan Kozuch invaded that construction work site on Steeles Avenue East, with his loaded handgun, as “he continued his flight” from Limestone Crescent, that he “confronted” and fought with the late Mr. Floreano Lopes as “he attempted to take the work van to continue his flight”. Finally, Crown counsel correctly asserts this was a work van that Mr. Lopes lawfully possessed as a worker at that roadway construction site. While this short summary is at least partially accurate, but it appears to me to again convey phrases that suggest “planning”, a proposition I have rejected.
[74] Yes, Mr. Kozuch did drive from his apartment building, and ultimately find his way to the Limestone address, crashed his truck, stole Mr. Yakhoun’s truck and drove to Steeles Avenue. Unexplainably, he then drove in part along the sidewalk, and then through the construction site that was so plainly delineated, causing serious injury to one worker as he progressed. However, whether the jury concluded that Mr. Kozuch “attempted to take the work van to continue his flight” was not an essential fact, though I expect they did make that finding, nor was the question of who started the confrontation. As such, those assertions do not form part of my decision on the period of ineligibility.
[75] In support of its’ position that the correct ineligibility period in this case is 15 years, Crown counsel relies upon three Ontario decisions that supported ineligibility periods of 15 years: R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532 (O.C.A.); R. v. Hayles-Wilson, 2022 ONCA 790; and R. v. Hayles-Wilson, 2018 ONSC 4337(S.C.J.).
[76] In Danvers, the victim was a college student employee at “Guvernment”, a well-known lakefront nightclub in Toronto. The offender and the victim came to be in a conflict. Like for Mr. Lopes, it was the victim’s workplace. After the accused was asked to leave the nightclub, an altercation ensued. The victim was fatally shot inside the nightclub. The nightclub was full. The accused fired the handgun in the middle of a room where somewhere between 400-500 patrons were present and in proximity at the time of the shooting. The victim was on his last week of employment before returning to his sports scholarship at an American university.
[77] Although he was only 19 years of age at the time, the accused had a lengthy criminal record, and notably, six of his convictions were for weapons related offences, all at times when he was on orders prohibiting him from possessing firearms. In sentencing the appellant, the trial judge described the murder as “motiveless, impulsive and senseless involving gratuitous violence by an armed drug dealer”. The trial judge imposed a period of 18 years of parole ineligibility. While the Court of Appeal reduced that period to 15 years, Armstrong J.A. strongly endorsed the sentiments of the trial judge at para. 77:
It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole ineligibility. Society must be protected from criminals armed with deadly handguns.
[78] In Hayles-Wilson, the principal decision relied upon by Crown counsel in this case, the Court of Appeal affirmed the sentencing decision of Code J., fixing parole ineligibility at 15 years. The accused was charged with first-degree murder based upon the Crown’s theory that it was a planned and deliberate murder based on revenge, but the jury convicted him of second-degree murder. The accused testified that the killing was spurred by comments made that sent him into some form of rage. He fired eight shots – five of which struck the deceased, and another struck a bystander.
[79] The Court of Appeal upheld the 15-year parole ineligibility period as appropriate and fit given that the appellant opened fire with a handgun in a public space, firing multiple times, with the result that the victim was killed, and a bystander was injured.
[80] The sentencing decision in Hayles-Wilson demonstrates a strong and compelling basis for fixing parole ineligibility at 15 years in the circumstances of that case, but that was based upon the finding that the murder was planned and was a “near first degree murder”: 2018 ONSC 4337(S.C.J.), at para. 15. However, as I have observed, I am unable to find that there was any planning here.
[81] I do find that Mr. Kozuch was armed and in possession and control of the handgun when he engaged in the altercation with Mr. Lopes. He introduced the loaded firearm into the fight with Mr. Lopes. Less than a minute later, the firearm discharged two rounds, one of which hit Mr. Lopes, causing his death a short time later. A second distinguishing feature is that unlike the accused in Hayles-Wilson who was plainly gang associated, Mr. Kozuch was a loner, not a gang member.
[82] This is a highly unusual case, almost bizarre, with a unique set of facts. Counsel have been unable to source any decisions across Canada that reveal similar facts and circumstances. This does not diminish the tragedy and the impact of Mr. Lopes’ death on his family and friends, but it shows it is different and distinguishable from the caselaw relied upon by the Crown.
[83] In my view, any fair and reasonable viewing of the video footage that comprises Exhibit 2 plainly reveals that Mr. Kozuch’s behaviour on September 3 seems highly unusual and almost disconnected.
[84] He leaves his apartment in a rushed and dishevelled state. He was with his dog, Diesel. He is dragging various belongings towards his truck before speeding away. It may provide some insight to his state of mind that a search warrant was subsequently executed on Mr. Kozuch’s apartment, and it was found to be in a state of complete upheaval, the state that he left it in.
[85] There was disclosure video not introduced at trial that seemingly demonstrates bizarre behaviour relating to Mr. Kozuch attending a residence that is otherwise disconnected with these events. No connection between Mr. Kozuch and the residents of that address was ever made[^3]
[86] It was after leaving that location that Mr. Kozuch travelled to the Limestone address, which also reveals the highly unusual behavior that Mr. Kozuch exhibited on September 3.
[87] Mr. Youkhana was a reliable and credible witness who knew what transpired behind the Limestone Avenue buildings. When he first observed the white truck, it was moving quite fast in reverse and was weaving somewhat but he could discern no obvious or specific reason why the vehicle was driving in reverse at such a high rate of speed. He wondered if Mr. Kozuch was a bad driver, or was having a medical event or was intoxicated. He said he later detected alcohol on Mr. Kozuch’s person. When Mr. Youkhana challenged him, Mr. Kozuch yelled “you don’t understand!” What was not understood is unknown, but Mr. Kozuch was anxious and asked whether he may have hit anyone as he was driving. It is telling, to me, that he did not on his own know if he had. Mr. Youkhana found that Mr. Kozuch’s behavior to be odd.
[88] Police Constable Pigott also observed questionable behaviour following the shooting on Steeles Avenue, once officers arrived and Mr. Kozuch was arrested. P.C. Pigott testified that Mr. Kozuch was asking “Please don’t hurt me! Please don’t hurt me!” and said “I’m sorry! I’m sorry!” several times. Though P.C. Pigott would not agree that Mr. Kozuch appeared to be “paranoid”, it is plain from his observations that he also found that Mr. Kozuch’s behavior was unusual.
[89] There was also at least some evidence concerning Mr. Kozuch’s mental state and potential impairment. The jurors were given appropriate instructions on how to deal with that. Although the jury did not accept that any impairment was sufficient to reduce murder to manslaughter, this should still be a factor in assessing parole ineligibility, even if of limited weight in context.
[90] The defence position is that parole ineligibility should be set to the minimum of ten years, but acknowledges that jurisprudence supporting that position is scarce, perhaps owing to the continuing high level of crimes involving firearms. He relies upon only three decisions, two from Ontario and one from B.C.
[91] In R. v. Bhandher, 2010 BCSC 1812, the British Columbia Supreme Court accepted that the offender exhibited a high level of moral blameworthiness but was genuinely remorseful for his crime. He was originally charged with first degree murder. Like Mr. Kozuch, he raised defences of self-defence and intoxication. He was convicted of second-degree murder. Three jurors recommended a 10-year parole ineligibility period while the others refrained from making any recommendation.
[92] Dickson J. referred to the general rule from Shropshire that the period of parole ineligibility following a second-degree murder conviction is 10 years, but since every case is unique and intensely fact sensitive, unusual circumstances are not required before an extension may be justified. Regardless, the court emphasized that the appropriate range of sentence should be assessed bearing in mind other similar sentencing decisions: see R. v. Forslund and Quinn, 2007 BCSC 573. Generally, for parole ineligibility greater than 10 years to be imposed, there must be some particularly aggravating feature, whereas for a penalty of greater than 15 years, more egregious circumstances of a higher order of moral culpability are required.[^4]
[93] Defence counsel also advances R. v. Grant, 2016 ONCA 639, where the Ontario Court of Appeal allowed an appeal against sentence where the two accused committed a drive-by shooting on a busy main thoroughfare in the west end of Toronto. The facts were particularly disturbing. Thirteen shots were fired from one vehicle into another moving vehicle, killing one person and injuring three others. There were elements of impulsiveness to the offence, as it was preceded by provoking behaviour from two of the victims, and involving revenge by Grant and his co-accused, Vivian.
[94] I agree with Code J.’s assessment that the offence in Hayles-Wilson was more serious than the offence in Grant, because it was not an impulsive act and the evidence demonstrated the presence of planning. Further, in Grant, the sentencing judge had found that the jury’s recommendations of 15 years for Grant and 10 years for Vivian were “wholly inadequate”, and instead imposed parole ineligibility at 18 and 13 years. The Court of Appeal accepted that the crime was “outrageous, shocking and horrendous”, but also that the sentencing judge had missed the mark. The Court reduced the parole ineligibility period to 14 years for Grant and 11 years for Vivian.
[95] As with other sentencing decisions, the circumstances of the offenders differ and certainly the circumstances of the offences in Grant did as well, but I find that the facts in Grant are considerably higher on the scale of moral blameworthiness than the circumstances of Mr. Kozuch in this case. Nevertheless, in that case parole eligibility was set at 14 years for the shooter, Grant, and 11 years for Vivian, less than the 15 years sought by Crown counsel in this case.
[96] I find the most helpful of the decisions advanced is that of my now retired colleague, MacDonnell J., in R. v. Suthakaran, 2020 ONSC 4245, where the learned judge imposed a 12-year period of parole ineligibility.
[97] That case involved a shooting where the accused shot and killed the wrong person – a totally unintended target. He and his friends got into an altercation with others in a large group outside a nightclub in Scarborough. He fired his gun at another person, but instead struck and killed his own friend. He was convicted of second-degree murder without possibility of parole for 12 years. He had no criminal record or history, had significant family support and was still a young man so he had strong prospects for rehabilitation.
[98] MacDonnell J. found that the circumstances surrounding the offence, particularly that it was gun violence committed in public amongst a chaotic scene of people, fully engaged the need for denunciation and deterrence. It called for a fit increase in the period of parole ineligibility, even though the jurors had recommended that the period be left at ten years. Crown counsel in Suthakaran argued that 13 years was the appropriate period of parole ineligibility, extending the 10 to 12-year range up to 13 years, but still below the 14 to 16 year middle range.
[99] Justice MacDonnell concluded that 12 years was the right number. He distinguished the decision in Hayles-Wilson. What elevated the situation in that case for sentencing purposes, and distinguished the two cases, as I have noted, was Justice Code’s finding that the murder was planned: “a targeted planned murder” and “a near first degree murder.”
[100] Neither of those descriptions could fairly be applied to the murder committed by Mr. Suthakaran, nor in my view, can they be fairly applied to the killing of Mr. Lopes. While it was a serious and aggravating factor that there were other construction workers nearby when Mr. Kozuch and Mr. Lopes were fighting, not to mention the cars driving by in the westbound lanes of Steeles Avenue, this shooting lacks the element of planning, and as counsel described it, is more opportunistic. In my view, the circumstances MacDonnell J. describes in Suthakaran have much in common with the circumstances surrounding the shooting death of Mr. Lopes, and the circumstances of this offender.
[101] In my view, these factors support the conclusion that the appropriate range in this case is the lower end of the statutory range, that is, 10-12 or even up to 13 years. Apropos of the Crown’s position in that case, I see no reason that a more egregious low end set of circumstances, where they start to approach the middle range, might not call for a 13-year period of ineligibility.
[102] Where this offender should be situated on that lower range depends on aggravating and mitigating factors.
(ii) Aggravating and Mitigating Circumstances
[103] The aggravating circumstances in this case, in my view, include the following:
(i) Mr. Kozuch’s possession of his handgun and ammunition was unlawful.
(ii) The only reasonable inference that can be drawn from Mr. Kozuch carrying the loaded Glöck pistol and magazines of ammunition conceaoed in his backpack, which he was careful to keep with him at all times, was that he must have anticipated and wanted to be prepared if an occasion arose calling for the use of the gun, whether in a public place or not.
(iii) The continuing possession and use of illegal handguns in the Greater Toronto Area, whether in public squares, or on highways and roads, continues to be an aggravating major problem. Our courts must continue to focus on the principles of denunciation and deterrence for gun related crimes in the strongest possible terms.
(iv) Toronto police statistics show that shooting and firearms discharges in the City of Toronto in the five years, from 2019-2023, have steadily declined on a yearly basis from 492 occurrences in 2019 (with 44 deaths) to 343 occurrences in 2023 (with 29 deaths). While the trend has changed from upward to downward by 30% over 5 years overall, with deaths down by 35%, the overall number of shootings and gun discharges remains troublingly high.
(v) Mr. Lopes was unarmed. There was no need for the intervention of Mr. Kozuch’s firearm in the fistfight. The firing of his handgun, however it happened was an unacceptable, totally unreasonable and excessive, uncalled for response that can only be directly attributable to his decision to possess that firearm and keep it with him at all times.
(vi) Mr. Kozuch fired two shots in a public place, a construction workplace on a major Toronto thoroughfare, with other persons nearby. One of those shots hit and ultimately killed Mr. Floreano Lopes. Whether Mr. Kozuch was hit by that same bullet, or the other is unknown. However, neither Mr. Kozuch’s injury nor Mr. Lopes’ death would have occurred if Mr. Kozuch had not introduced his loaded firearm into the altercation that developed, between he and Mr. Lopes on September 2, 2021.
[104] On the other hand, the mitigating circumstances in this case include the following:
(i) Although Mr. Kozuch has criminal antecedents, they are insignificant and unconnected to the circumstances and gravity of this offence, so, while not mitigating in the usual sense, neither are they aggravating, in my view.
(ii) Mr. Kozuch appears to enjoy the continued support of his family, all of whom who appear to be pro-social individuals who will hopefully be able to assist him to reintegrate into society in a lawful and productive manner once he has been determined to be sufficiently rehabilitated that he may be released on parole.
(iii) It is a positive indicator that Mr. Kozuch has engaged in numerous constructive self-improvement programs while in pre-trial detention awaiting trial at the Toronto South Detention Centre (TSDC). He is highly spoken of by Reverend Pearson. In my experience it is unusual to receive the kind of thoughtful and introspective letter he wrote about this offender, a letter that is meaningful, insightful and shows glimmers of promise.
(iv) Finally, Mr. Kozuch spoke directly to the family of Mr. Floreano Lopes in his statement to the Court at the end of the sentencing hearing. When asked if there was anything he wished to say before sentencing, Mr. Kozuch expressed just one brief but direct thought. He said:
I just want to give my deepest condolences to the Lopes family and his loved ones for the loss of him. Thank you.
[105] In my judgment, the above four mitigating factors, viewed cumulatively, give some hope for Mr. Kozuch’s rehabilitation. It is too early to reach any final conclusion on this point, but steps taken to start the turn-around show there is some present potential to hope for success.
[106] There is one final point to be raised in mitigation. All pre-trial custody in murder cases is fully credited in relation to parole eligibility pursuant to s. 746(a) of the Code: R.S.C. 1985, c. C-46, s. 746: see: R. v. Hong, 2016 ONSC 2654 (Ont. S.C.J.) at para. 60; R. v. Corner, 2018 ONSC 1529 (Ont. S.C.J.) at paras. 49-50.
[107] Mr. Kozuch was detained upon his arrest on September 3, 2021, and has remained in detention to this day. Calculated to today’s date, February 15, 2024, that is 895 days of detention at the TSDC. While no specific evidence was presented on this sentencing hearing concerning the number of lockdowns at TSDC over the past two and a half years, it has become accepted that being incarcerated in such conditions amounts to a form of “hard time” that ought to have a mitigating effect, in relation to parole eligibility. However, the cases hold that it is not a particularly strong factor, presumably because all pre-trial custody is credited, albeit not on an enhanced basis.
[108] Since an offender found guilty of murder, like Mr. Kozuch, is not entitled to enhanced credit for pre-trial custody, the only meaningful way this factor can be accounted for is to take it into account in relation to the appropriate period of parole eligibility. I have considered this as a mitigating factor in determining Mr. Kozuch’s sentence but also acknowledge that its relative lower importance does not materially affect my conclusion on the fit and just sentence for Mr. Kozuch.
D. Conclusions
[109] Bearing in mind, then, the nature and circumstances of the offences, the character of the offender, and the evident neutrality of the jury’s position on parole eligibility, what is the total period of parole ineligibility that would be appropriate for Mr. Kozuch?
[110] In answering that question, all of the principles and objectives of sentencing set out in sections 718 and 718.1 of the Code must be taken into account, including most importantly in a case like this, that the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, as best as can be discerned, must be respected.
[111] I do believe Mr. Kozuch will continue to have strong family and community support, particularly from his half-sister and his church. He can no longer be described as a youthful offender, but he is still a man who has not yet passed his 40th birthday in a world where most Canadians are living well into their late 70’s, 80’s and 90’s. His prospects for rehabilitation, therefore, are potentially strong. However, the circumstances surrounding the murder he committed fully engage the need repeatedly recognized by our appellate courts for general and specific denunciation and deterrence. It involved gun violence in a public place, a construction site, a place that should have been a safe place for Mr. Lopes, at least from firearms, if not construction accidents. There were other people present. It was out in the open on Steeles Avenue on the Friday before Labour Day, in the middle of a sunny afternoon.
[112] I have taken Mr. Kozuch’s consumption of alcohol and cocaine that day into account, but that did not discourage him from getting into his white truck and setting in motion the series of bizarre events that followed. In my view, the need for denunciation and deterrence, public and individual, remains the paramount factor. The mitigating factors I describe move Mr. Kozuch from the middle range to the lower range, but I do not accept that the fit sentence in this case is the minimum of 10 years ineligibility and am instead inexorably drawn to the conclusion that an increased period of parole ineligibility is required.
[113] In coming to that conclusion, I also bear in mind that only one of twelve jurors who made a recommendation recommended that the period be left at ten years. The opinions of the members of the jury can provide a valuable insight into the degree of his moral culpability and I am statutorily bound to take those opinions into account. Interestingly, at least to me, the fact that only one recommended the minimum and the other eleven had no recommendation, is arguably evidence on its own of the unique and bizarre flavour of this tragic set of circumstances and the jurors just not being able to say what is appropriate. That said, this is not a case where the jurors have called strongly for a particularly exemplary period of parole ineligibility.
[114] I must also note, however, that the jury had no information that would enable them to take into account, as I must, the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As a review of the sentencing authorities demonstrates, in order to comport with that principle, I find that a period of ineligibility beyond the statutory minimum is required. I have determined that the fit period is an additional two years.
E. Disposition and Orders
[115] Mr. Kozuch, please stand up.
[116] On count one of second-degree murder, Mr. Kozuch, I sentence you to a term of imprisonment for the remainder of your natural life, without eligibility to apply for parole until you have served 12 years of that sentence.[^5]
[117] Because you have been convicted of an indictable offence involving the use of violence that is punishable by imprisonment for 10 years or more, it is mandatory that I impose an order under s. 109(1)(a) of the Criminal Code, relative to firearms possession, and in the circumstances of this case, I direct that the possession prohibition order be for life.
[118] Since murder is an offence listed in paragraph (a) of the definition of “primary designated offence” in s. 487.04 of the Criminal Code, a DNA order is mandatory. Pursuant to s. 487.051(1), I authorize the taking of the number of bodily samples reasonably required for the purpose of forensic DNA analysis and historical recording.
[119] Let me acknowledge that today’s decision brings this matter to an end, at least in this Court. I extend my hope that you, the family and friends of Mr. Floreano Lopes, will find some finality into the end of these proceedings and be able to use it as a stepping stone to move forward from this very sad chapter in your lives, to the next chapter, with strength, hope and determination. I also extend my hope to you, Mr. Kozuch, that you also will be able to learn how to move forward, positively, and on a better path.
[120] To end, I would be remiss if I did not thank all of you for your patience and courtesy, for counsel’s co-operative efforts throughout the trial while still advocating to the fullest for their respective positions, for your consideration and respect for all of the participants, especially the court staff, and finally your patience and continuing respect for this Court, and me as the presiding puisne judge. I am much obliged.
Order accordingly.
Michael Quigley J.
Released: February 15, 2024
COURT FILE NO.: CR-22-40000587
DATE: 2024-02-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and –
JONATHAN KOZUCH
Defendant
REASONS FOR SENTENCE
Michael G. Quigley J.
Released: February 15, 2024
[^1]: Amended as of February 20, 2024, to correct typographical errors, and include Counts 2 and 3. [^2]: Mr. Kozuch was also charged with theft over $5,000 and dangerous operation of a motor vehicle causing bodily harm. He pled guilty to those two charges at the beginning of the trial. [^3]: This information was provided in Crown disclosure and was assigned case number 2021-1684157 [^4]: Counsel notes that R. v. Bhandher has not been considered in Ontario but has been in other provinces. [^5]: By agreement, Mr. Kozuch was sentenced to 2 years concurrent to count 1, on both counts 2 and 3.