Reasons for Judgment
Court File No.: CR-23-288
Date: 2025-04-28
Ontario Superior Court of Justice
Between:
His Majesty the King
-and-
A.K.
Appearances:
N. Sohail and A. Mountjoy, for the Crown
K. Kaczmara, for the Offender
Heard: February 21 and April 11, 2025
Released: April 28, 2025
Judge: Robert N. LeMay
Introduction
After a thirteen-day jury trial, A.K. was convicted of four weapons-related offences under the Criminal Code. He was acquitted of eight other charges, which related to having sexual relations with someone under the age of sixteen and charges related to the offender's relationship with the Complainant.
Background and Facts
The Offences
The offences flow from the offender's relationship with the Complainant. On the offender's evidence, they met when the Complainant was fifteen and the offender was twenty-one. They had an intimate relationship for at least a year. The Complainant alleged the relationship began when she was thirteen. It ended in May 2022 when the Complainant discovered the offender was cheating on her.
Ultimately, the Complainant went to the police in August 2022 and alleged that the offender was aware she was only thirteen when they started dating. The offender was acquitted of all charges in respect of his relationship with the Complainant. However, the Complainant also alleged that the offender had shown her a handgun and some ammunition and told her he planned to modify the handgun.
A search warrant was executed on the offender's home, where he lived with his mother. A 3D-printed handgun, a silencer, two extended magazines, and more than 100 bullets were found. The jury convicted the offender of possession of all these items.
The Gun-Related Charges
The gun-related counts were as follows:
- Count 9: Possession of a firearm (handgun) without a license or registration certificate, contrary to section 92(1) of the Criminal Code.
- Count 10: Possession of a loaded restricted firearm without authorization or license, contrary to section 95(1) of the Criminal Code.
- Count 11: Possession of a prohibited device (silencer) without a license, contrary to section 92(2) of the Criminal Code.
- Count 12: Possession of a prohibited device or ammunition (extended magazine or magazines) without a license, contrary to section 92(2) of the Criminal Code.
The offender was found not guilty of all charges in respect of his relationship with the Complainant, but guilty of all the gun-related charges.
The Offender
At the time of the jury verdict, defence counsel declined a Pre-sentence Report but filed other evidence, including:
- A statement from his therapist, Stephanie Swayne (registered social worker)
- Letters of support from his current partner, younger twin siblings, mother, and a friend of his current partner
- Documentation on the offender's time in jail and restrictive bail conditions
The offender was born in 1999 in Iraq, lost his father young, and experienced significant trauma and instability, including emigration to Syria and then Canada, family deaths, and financial hardship. He completed high school in Mississauga and obtained an Advanced Diploma in Software Engineering Technology from Centennial College in April 2024.
Positions of the Parties
The Crown sought a sentence of five years' custody, broken down by count. Defence sought a conditional sentence order (CSO), citing the offender's background, pre-trial custody, harsh conditions, restrictive bail, and applicable case law.
There was no real dispute that the ancillary orders sought by the Crown should be imposed, including a section 109 weapons prohibition for life, forfeiture order, DNA order, and a lifetime non-communication order.
Sentencing Principles
The fundamental principles of sentencing are set out in sections 718, 718.1, and 718.2 of the Criminal Code. Sentencing is an individualized exercise, requiring consideration of the gravity of the offence, the degree of responsibility, and the offender's unique circumstances.
The offender is a youthful first-time offender. The Court of Appeal in R. v. Habib, 2024 ONCA 830 set out principles for sentencing young offenders, emphasizing restraint, prioritizing rehabilitation, and considering reduced moral culpability.
Aggravating and Mitigating Circumstances
Aggravating Circumstances
- The totality of the arsenal in the offender's possession, including a silencer and extended magazines, which have no defensive purpose
- The significant amount of ammunition
- The shell catcher, suggesting aggressive use
- The offender's plans to modify the gun, as corroborated by the Complainant's testimony
Mitigating Circumstances
- The offender is a youthful first-time offender
- Difficult childhood and personal tragedies
- Supportive family and positive steps taken during bail (education)
- No evidence the weapon was found or used in public or in other criminal activity
The Fit Sentence
The Law for These Offences
The Supreme Court in R. v. Nur, 2015 SCC 15 struck down the mandatory minimum for possession of a firearm but upheld a 40-month sentence for a youthful first-time offender. Sentencing ranges are not straitjackets; each case is unique.
Firearms offences are serious crimes. The case law emphasizes the need for denunciation and deterrence, but also recognizes the possibility of conditional sentences in exceptional circumstances.
Reductions
Summers Credit
The offender is entitled to credit for pre-trial custody at a ratio of 1.5:1, resulting in a one-month deduction.
Duncan Credit
The court accepted some mitigation for harsh pre-trial custody conditions.
Downes Credit
The offender was on restrictive bail for 29 months. The court granted a credit of seven months for this period.
Bail Error
The court found no deduction warranted for the four extra days in custody due to a clerical error.
Conclusion and Sentence
The court rejected the Crown's submission for five years' incarceration as disproportionate. A conditional sentence was not available on the facts. The appropriate range was found to be between three and four years, but the court imposed a total sentence of 30 months' incarceration, reduced for pre-trial custody and restrictive bail.
Released: April 28, 2025
Robert N. LeMay
Cited Legislation
Cited Case Law
(See YAML frontmatter for full list and links.)