Ontario Superior Court of Justice
Court File No.: 16042/23
Date: 2025-04-25
Between:
His Majesty the King
and
Daniel Pestill, Defendant
Appearances:
Jinwon Kim and Samantha Saunders, for the Crown
Fariborz Davoudi, for the Defendant
Heard: March 20 and 21, 2025
Reasons for Sentence and Disposition
H. Leibovich
Introduction
1On August 16, 2024 I found Mr. Pestill not criminally responsible for the death of Michael Ryan. I also found Mr. Pestill guilty of various drugs and firearm offences. My reasons are set out in full at R. v. Pestill, 2024 ONSC 4459. A disposition and sentencing hearing was held on March 20th and 21st, 2025 and adjourned to today for my decision.
2Mr. Pestill was assessed at Ontario Shores by Dr. Pierce. The Crown submits that Mr. Pestill should be declared a high-risk accused. The Crown also submits that Mr. Pestill should receive an eight-year sentence for the drug and firearm offence less pre-sentence custody and that he should serve the remnant of that sentence first in the penitentiary. The defence submits that Mr. Pestill is not a high-risk accused and that the court should leave the matter to the Ontario Review Board. The defence submits that Mr. Pestill should receive a sentence of time served for the drug and gun offences, which is just shy of five years, and he should serve the sentence while he is being detained in the hospital. The Crown and the defence agree that with respect to the not criminally responsible finding Mr. Pestill should be detained in custody in the hospital.
Background of Mr. Pestill
3Mr. Pestill’s background, history of mental illness and drug use was described extensively in my reasons for judgement, therefore I will only comment briefly. Mr. Pestill is 35 years old. He was raised initially by his biological parents but they then separated. His step-father said that Mr. Pestill was a great kid and had a lot of friends growing up. Mr. Pestill, aside from a learning disability, was a “normal child.” He dropped out of high school and was 19 when he got his first job. When he was in his 20s, he moved out and lived with his girlfriend, Jenna. The police received a wellness check in 2013-2014 because he had threatened suicide. His criminal record started in 2016. He has the following convictions:
- January 29, 2016: Possession of a substance for the purpose of trafficking and fail to attend court, $100 fines in addition to 4 days pre-sentence custody and 12 months probation
- October 19, 2017: Obstruct peace officer, 12 months probation
- December 12, 2017: Possession of a substance for the purpose of trafficking (x3), total sentence of 24 months in addition to 90 days pre-sentence custody and a 10-year weapons prohibition. He subsequently violated his parole when he failed his drug screening test.
4Mr. Pestill’s erratic behaviour was noted to start in the summer of 2019 and escalating at the end of December 2019 and beginning of 2020. He used cannabis when he was young, experimented with LSD and used crystal methamphetamine which “likely precipitated psychosis and paranoia.” Mr. Pestill has minimized or denied his substance use. Regarding his relationship with his mother and step-father, Dr. Pierce summarized in his report:
As he entered adulthood, his relationship with family became increasingly strained; they noted patterns of manipulation and dishonesty, especially as his mental health declined. He used substances and exhibited erratic behavior. In 2020, his family refused to allow him to live at home without seeking psychiatric help, fearing for their safety given his paranoia and aggression. Despite their concerns, they remained involved to some extent, helping him find shelter, for example. By 2022, his contact with his family was sporadic and limited, with periods of withdrawal and estrangement.
5I found that at the time of the offences, Mr. Pestill was suffering from a mental disorder. As Dr. Ramshaw testified, “While psychosis may have been unmasked and exacerbated by drugs, it is more likely than not that he has a primary psychotic disorder, such as schizophrenia.”
Victim Impact
6Victim impact statements were filed from Mr. Ryan’s wife, daughter, sister, sister-in-law and friends. Certain parts of the impact statements are outside of the scope and purpose of the Criminal Code and pursuant to s. 722(8) of the Criminal Code, I have disregarded those portions. I have provided my reasons for doing so and guidelines to the Crown regarding how they should deal with such statements in the future in R. v. Pestill, 2025 ONSC 2479.
7I have considered the victim impact in sentencing the accused for the gun and firearm offences and as part of the disposition hearing for my finding that he was not criminally responsible for the killing of Mr. Ryan.
8The statements describe the immense loss that the family and friends have experienced because of Mr. Ryan’s death. Mr. Ryan’s wife eloquently wrote:
Together we created a beautiful family. He was the backbone of our family. His wonderful sense of humor his strength and his positive attitude carried us but now our family is irreparably broken.
I want to talk to him to ask him “Mike should we do about the situation? But I can't he is gone. Death is so final my children can no longer look to him for answers for advice. They now face a huge void that will never go away. They knew how much they were loved by their dad. They felt at peace knowing that his strength was there for him and they could count and rely on it.
He gave them grounding and a solid security in life. But now at a very young age they have lost this.
Only I am left to fill the cracks the weight which is heavy for me. I still wait to hear the front door or home to open and close knowing that Michael is home. It's late I'm already in bed by now he's home. I feel the peace come over me a sense of security. But now I feel insecure and alone the world was so different to me a giant hole was ripped to the fabric of my being there's now anxiety sleepless nights tears and pain.
9Mrs. Ryan described how difficult life has been since Mr. Ryan was killed. She wrote:
I now suffer from PTSD as diagnosed by psychologist. Loud noises startle me badly. No longer do I sleep well. My body's nervous system has been harmed adversely affected. I cannot take pressure like I used. I'm not the same person.
10Mr. Ryan’s death affected not just his family member but his friends. As noted by one:
Mike's death came at a difficult time for me. The last few years on the death of five family members as well as the death of another dear friend just months before from the same small group of friends. While my mild depression was exacerbated by the deaths of my friends and family the brutality of how Mike's life ended his cause me difficulties and I'm in counseling to help me.
Mike's murder has changed me. I have anger and grief than having difficulty moving past it is affecting my marriage and relationships as I try to learn to cope with my anger and despair.
Issue 1: Should Mr. Pestill be Declared a High Risk Accused (HRA)?
Expert Testimony
11Dr. Pierce testified at the hearing. Consistent with Dr. Gojer and Dr. Ramshaw’s testimony, he found that Mr. Pestill suffered from schizophrenia and a substance use disorder. Dr. Pierce employed a number of actuarial tools to assist in determining Mr. Pestill’s risk. He concluded in his report that:
Overall, in my opinion Mr. Pestill is at moderate to high risk for violent recidivism, if released imminently to the community. His risk flows primarily from his untreated major mental illness and historical polysubstance use disorder. If this gentleman were detained and treated in a forensic psychiatric hospital, his risk to others will be much lower; the ORB is well-equipped to manage same and will consider the relevant factors in deciding upon the least onerous disposition consistent with public safety (which is the paramount consideration). Given his NCR finding and the severity of the index offence, it is likely that his risk to others over the next few years will be low in the context of his mandated involvement with the ORB. I would not define that risk as “substantial” but of course, my perspective is not a legal one.
12Dr. Pierce testified that he conducted multiple interviews with Mr. Pestill over a number of hours. Dr. Pierce testified that Mr. Pestill was psychotic and delusional when they met. He lacked insight into his illness. He did not think he had a mental illness or needed treatment or needed anti-psychotic medication. He denied using drugs or selling drugs or having a criminal record and he denied shooting the victim. Dr. Pierce reiterated that Mr. Pestill’s underlying mental illness is schizophrenia and that consuming drugs like crystal methamphetamine is riskier for Mr. Pestill than for others. He cannot consume illicit drugs. Dr. Pierce testified that Mr. Pestill, if he was released today into the community without conditions, would be a substantial risk to the community.
13Dr. Pierce testified that 80% of those that take anti-psychotic medication improve once they start taking the medication. Mr. Pestill cannot be forced to take the medication unless he is found to be certifiable and incapable of consenting under the Mental Health Act of Ontario. It was Dr. Pierce’s view that he was so incapable. Dr. Pierce testified that the hospitals were designed to treat Mr. Pestill effectively but that he could get almost as good treatment in the penitentiary.
14Dr. Gojer, during the course of his testimony at trial, stated that Mr. Pestill is “a person with schizophrenia who is also very dangerous.”
Law and Analysis
15If a person is designated as HRA, then the Ontario Review Board is restricted to the dispositions it can impose on the person. If the court finds the accused to be an HRA, a disposition shall be made directing the accused to be detained in the custody of a hospital subject to significant restrictions. The designation is to be reviewed by the Review Board every 12 months but that timeframe may be extended on consent. The Board does not have discretion to grant an absolute or conditional discharge while the designation is in place, or to impose any condition permitting the HRA accused to be absent from the hospital, except under the terms of s. 672.64(3). Once a designation has been made, it may only be removed by a Superior Court judge on a request for review by the Review Board pursuant to s. 672.84(1). “The purpose of the HRA regime is to protect the public from NCR accused who are considered to present an unacceptably high risk, requiring a further reduction in their liberty in the form of mandatory custodial detention and other restrictions.”; R. v. Schoenborn, 2017 BCSC 1556, at para. 42: quoted with approval in R. v. Hadfield, 2024 ONCA 46 at para. 12.
16The statutory criteria for the HRA designation is set out in s. 672.64(1) of the Criminal Code. The Crown is relying on the prong set out in section (a). If the person is over 18 and has been found not criminally responsible for a serious personal injury offence, such as murder, the court may declare the person to be an HRA if the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. Section 672.64(2) of the Criminal Code states that all relevant evidence is to be considered by a court in deciding whether to make the designation, including:
a) the nature and circumstances of the offence;
b) any pattern of repetitive behaviour of which the offence forms a part;
c) the accused’s current mental condition;
d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and
e) the opinions of experts who have examined the accused.
17In Hadfield the Court of Appeal set out the applicable principles:
a) The disposition is not mandatory, it is discretionary in nature;
b) The “substantial likelihood” language of s.672.64(1)(a) requires a risk level higher than the “significant threat” characterization found in s. 672.54 for Review Board jurisdiction.
c) The use of the words “substantial likelihood” denotes a high degree of probability that the accused will endanger either the life or safety of another.
d) The factors set out in s. 672.64(2) are not prerequisites to a designation nor are they exhaustive but they must each be considered by the court.
e) An HRA designation is exceptional in nature and should be imposed sparingly.
Other Cases
18The HRA designation has been imposed infrequently. The following is a brief summary of some of the cases where the issue was canvassed.
In R. v. Hadfield, 2024 ONCA 46, the accused was declared a high risk accused. He was diagnosed with schizophrenia and was 33 years old at the time of the offence. He kicked a stranger in the upper shoulder and head area causing the victim to fall and strike his head on the pavement. The victim died. The accused had a pattern of repetitive, unprovoked violence against strangers. He committed prior assaults rendering three people unconscious and had an extensive criminal record involving violence against strangers. Previous treatment had been unsuccessful. The expert evidence was that his schizophrenia was treatment resistant. His illness worsened over time. When untreated, the accused was profoundly psychotic, resulting in aggressive behaviour.
In Cousineau (Re), 2021 ONCA 760, leave to appeal refused, [2021] S.C.C.A. No. 450, the accused was declared a high-risk accused. The application was not contested. Six years before the index offence, the accused was found not criminally responsible after he assaulted the custodian of a church and threatened him with a knife, and then broke into a home and threatened to kill the occupant with an axe. He eventually was discharged from the Review Board’s jurisdiction. He did nothing to address his mental illness, and killed two elderly neighbours while in the throes of psychotic persecutorial delusions. He was diagnosed with schizophrenia and had a history of violent offences.
In R. v. Caines, 2023 ONSC 5482, the accused was 56 years old with a history of substance abuse associated with aggression and dysfunction. He had a longstanding, lifelong, significant mental illness that involved mania and psychosis. While in the throes of that illness, he viciously killed his brother. Life-long medication was required, however he had improved insight into his mental illness, even expressing remorse for the killing of his brother, realizing that he could harm others. He was compliant to treatment. There was no evidence that his illness was treatment resistant. The expert evidence did not suggest that close psychiatric care cannot be achieved unless there was a high-risk designation. The high-risk accused application was dismissed.
In Gautreau, Re, 2023 CarswellOnt 9351, the accused was 48 years and he was charged with having confined the victim in her apartment by putting a blanket over her head and body and of having caused serious and life-threatening wounds. He had an extensive prior criminal record, with violent offences, and was diagnosed with schizophrenia, substance abuse disorders, and antisocial personality disorder. The accused had a history of stopping medication and disengaging with psychiatric care when living in the community. The expert evidence was that he lacked insight into his mental illness and the continued need for medication. The high-risk accused designation was granted.
In R. v. Raymond, 2020 NBQB 251, the accused shot and killed two police officers and two civilians from his apartment window. He was 48 years old and had no prior criminal record. The accused was diagnosed with schizophrenia. He shot the individuals thinking they were demons. The expert evidence was that the accused’s condition was stable and that he was cooperative but that it was still too soon to make any positive conclusion regarding his long-term stability. The accused’s insight remained poor and his coping mechanisms were “immature”, believing he did not suffer from schizophrenia nor that he needed medication. He remained protective about his previous employment claiming it was “top secret” and his responses were not entirely genuine. The high-risk accused designation was granted.
In R. v. Grant, 2018 ONSC 3581, the accused was 61 years old at the time that he violently stabbed his mother and stepfather. The accused believed they had committed “wicked acts” against his children. The mother died; the stepfather survived. The accused was diagnosed with schizophrenia. It was found that there was planning prior to the attacks. There was a pattern of behaviour, he had committed three prior knife attacks against his stepfather. He had a prior acquittal to serve his time in the community and was directed to take his medication. The accused had stopped taking medication. The expert evidence was that he was treatment-resistant and that he believed he is not mentally ill nor that the medication helped him. He continued to have delusions about his stepfather. The high-risk accused designation was granted.
In R. v. Schoenborn, 2017 BCSC 1556, the accused killed his three children, all under or at the age of 10 years old, in rapid succession. He was 40 years old at the time he committed the murders, and 49 years old at the time the high-risk accused designation was being sought. The accused had a history of criminal convictions since his teenage years. He was diagnosed with acute psychosis. Upon the birth of his children, he began to have delusional thoughts about his children’s safety resulting in violent behaviour. He was briefly hospitalized. The accused committed the murders after his hospitalization claiming it was for the children’s safety. The murders were not found to point to be part of a pattern of behaviour, his past incidents were not sufficiently similar to the murders. However, the murders showed sufficient similarities with the assaults on his wife, as they were caused by psychosis and involved serious physical violence against his own family. A critical factor was the prolonged remission of the accused’s psychosis and delusional disorder through antipsychotic medication. Due to the accused’s successful treatment, the underlying cause of his brutal offences were found to be “no longer extant”. The high-risk accused application was dismissed.
Consideration of the Relevant Factors
1) The Nature and Circumstances of the Offence
19The victim, Mr. Ryan, was a taxi driver and he picked up Mr. Pestill on January 21, 2022. During the taxi ride, Mr. Pestill quickly became agitated and threatened to kill Mr. Ryan because Mr. Ryan was a member of the “illuminati secret society.” Mr. Pestill struck the victim a number of times. Mr. Ryan was able to pull over and as he was exiting the car Mr. Pestill shot and killed him. The car ride and killing of Mr. Ryan was captured on the taxi’s video system. The police arrested Mr. Pestill nearby.
20Dr. Gojer testified for the defence and Dr. Ramshaw testified for the Crown. Dr. Gojer testified that Mr. Pestill was suffering from unspecified schizophrenia spectrum. Dr. Ramshaw agreed with his diagnosis. I found that at the time of the shooting, Mr. Pestill was suffering from a mental disorder. I also found that he consumed drugs the day of the shooting and that was, as Dr. Gojer testified, like adding gasoline to the fire.
21I was satisfied beyond a reasonable doubt that Mr. Pestill shot Mr. Ryan. I was also satisfied that at the time Mr. Pestill shot Mr. Ryan, he believed that Mr. Ryan was a member of a secret society that raped and killed children, that Mr. Ryan had previously threatened him and his family, that the secret society had been chasing Mr. Pestill and trying to enslave him for a long time, and that Mr. Ryan, as a member of the secret society, was coming into Oshawa to take over and enslave Oshawa. I concluded in my reasons that:
In my view, based on my factual finding and the expert evidence, the accused has shown on a balance of probabilities that he lacked, at the time of his shooting, the capacity to assess the wrongness of his conduct against societal norms. He was fully immersed in his delusion that Mr. Ryan was part of the evil secret society that was here to enslave Oshawa. He was simply incapable of assessing the wrongness of his conduct.
22The nature and circumstances of the offence point towards Mr. Pestill being a substantial risk to the community. Within seconds, Mr. Pestill’s erratic behavior escalated from questioning to shouting to hitting to shooting Mr. Ryan. The random nature of the attack and Mr. Pestill’s immersion in his delusion is a significant concern.
2) Pattern of Repetitive Behaviour of Which the Offence Forms a Part
23The language “pattern of repetitive behaviour” appears elsewhere in the Criminal Code. It appears as one of the sets of criteria for a person to be declared a dangerous offender. How the court has interpreted that criteria in dangerous offender cases is helpful in considering the factor here. In R. v. Ahmed, 2023 ONCA 676 the Court of Appeal stated at para. 121:
More recently, in R. v. Wong, 2023 ONCA 118, citing Hogg at para. 40 and R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, at para. 56, this court said the following about the essential elements of "a pattern of repetitive behaviour" at para. 36:
For the purposes of s. 753(1)(a)(i), a pattern of repetitive behaviour is a pattern that contains "enough of the same elements of unrestrained dangerous conduct to be able to predict the offender will likely offend in the same way in the future . ... However, the offences need not be the same in every detail; that would unduly restrain the application of the section. [Emphasis added.]
24I agree with the Crown that clearly it is not required to show that Mr. Pestill has been involved in a pattern of multiple killings. However, before January 22, 2022, Mr. Pestill had never randomly attacked a stranger. He did push his step-father down the stairs in 2020 and threaten to kill him, but the context was clearly different.
25The Crown submits that there is a pattern of repetitive behaviour showing that Mr. Pestill has engaged in erratic behaviour after consuming drugs. There is no question that illicit drugs and Mr. Pestill’s mental disorder is a toxic and deadly combination and is a factor that I will consider. However, in the context of this statutory factor, the predicate offence is not part of a pattern of randomly attacking strangers as seen, for example, in Hadfield.
3) The Accused’s Current Mental Condition
26Mr. Pestill still believes that the victim was part of the secret society. He still believes that he does not have a mental illness or that it contributed to the offence. He denied selling drugs and said he was sober at the time of the offence. He is psychotic, delusional and has absolutely no insight into his behaviour. Dr. Pierce summarized in his report:
At OS, Mr. Pestill denied selling drugs at the time in question, as noted. He grossly minimized the quantity of substances found on his person. He said that the victim was part of “secret society, with these nasty entities, beings.” He had “seen him before, in a Satanic world I was taken to.” He experienced difficulties in this regard as of 2020. He denied that any mental health problems contributed to the offence. When asked if Your Honour concluded otherwise, he stated, “I don’t think it is that. I can see [the being]… Lots of friends and family have told me there are spiritual entities talking to me, about me. They say they can’t go near me because of that.” Thus, he had had only limited contact with friends and family. When asked what he would do if released from custody and hospital, he replied, “I don’t know. It would be hard to live with what they’re doing with my body. My face is changing constantly. My arm would grow all the way down to my feet. People wouldn’t want to talk to you if you look like that.”
When asked if he was at risk of re-offending violently, Mr. Pestill opined, “I don’t think so. I was in danger. My life was being threatened. I don’t know why that happened. I guess the spiritual entities drove me to do it, they ripped me apart and these humans were chasing after me. That’s what led to the events. But if I was in a secure place, I don’t think it’d happen again.”
27Mr. Pestill is in the same place he was at the time of the offences. He still believes that the victim was part of a secret society, and that Mr. Pestill was being chased and attacked. There is no evidence that while in custody Mr. Pestill has acted out violently. This seems to be the result of two factors: 1) Mr. Pestill is in a secure facility. This seems to have a calming influence on Mr. Pestill as he himself noted and as commented upon by Dr. Ramshaw in her testimony. Mr. Pestill feels safe in the secure location; and 2) There is no evidence that Mr. Pestill has taken illicit drugs while in the institution.
4) The Past and Expected Course of the Accused’s Treatment, Including the Accused’s Willingness to Follow Treatment
28Mr. Pestill has shown no insight or desire to take treatment. He has never taken treatment. He believes that he does not have a mental disorder and there is no reason for him to take treatment. Dr. Pierce stated that in general, Mr. Pestill’s illness can be treated, although never cured. Dr. Pierce testified that in 80% of the cases, those that take anti-psychotic medication improve once they start taking the medication. Mr. Pestill cannot be forced to take medication unless he is declared incapable. Dr. Pierce believed that Mr. Pestill will easily found to be incapable, after which he can receive treatment and then Dr. Pierce believes that his condition will improve. While Dr. Pierce’s opinion provides some room for optimism, his view of Mr. Pestill is based on how generally those with Mr. Pestill’s condition respond to treatment. Mr. Pestill however has no history of treatment success. It is completely unknown at this time how he will respond. At this time, Mr. Pestill has made zero progress since the fatal shooting of January 2022.
5) The Opinions of Experts Who Have Examined the Accused
29Dr. Gojer in his testimony stated that Mr. Pestill is currently highly dangerous. Dr. Pierce stated that Mr. Pestill is currently a moderate to high risk for violent recidivism, if released imminently to the community, because of his untreated major mental illness and historical polysubstance use disorder. If released today and without conditions, he said that Mr. Pestill would be a substantial risk to the community. However, Dr. Pierce believed that from a psychiatric perspective, Mr. Pestill was not a substantial risk to the community because his risk to the community will be lowered once he receives treatment. This factor leans against the HRA designation.
6) Access to Drugs and Guns
30Mr. Pestill’s involvement in the criminal subculture is another factor that I must consider. Mr. Pestill was convicted of possessing drugs for the purposes of trafficking. He has four prior convictions for the same thing. It is evident from the digital messages that were entered at trial and at the hearing, that Mr. Pestill both sells and consumes drugs. Mr. Pestill’s drug consumption is a significant risk factor. The fact that Mr. Pestill clearly knows how to obtain illicit drugs and he has a long history of doing so, dating back to 2016, is a significant concern.
31The Crown has submitted and shown that Mr. Pestill generally has an interest in guns as evidenced from some images and searches found on his phone. The Crown has a valid point. However, in my view, the critical factor is that Mr. Pestill, despite suffering from a mental disorder, still had the wherewithal to be able to illegally obtain a gun. Most people don’t know where to obtain an illegal gun. Mr. Pestill does. This is a significant concern.
Conclusion on Request for HRA Designation
32Again, I understand that the HRA designation is exceptional in nature. However, in my view, having regard to all the relevant factors, it is appropriate to designate Mr. Pestill as a high-risk accused. I appreciate that Mr. Pestill has not engaged in a pattern of repetitive violent behaviour. While all factors must be considered, it is evident from the cases referenced above that an accused’s insight and response to treatment is a critical factor. Today, Mr. Pestill has an untreated major mental illness with a polysubstance abuse disorder. He is currently, as Dr. Gojer testified, a dangerous man, if released into the community. Mr. Pestill has no insight into his behaviour and has made zero progress since he shot Mr. Ryan. I appreciate Dr. Pierce’s opinion that his condition is capable of being treated, but no concrete steps have been taken. In my view, it is insufficient to point to the general path that a person might take. Mr. Pestill is fully immersed in his delusion about the secret society. He has a long-standing history of abusing drugs in the community which has fuelled his delusions and dramatically increased his risk to society. There is no reason to believe that he would not again consume drugs if released as he done in the past. Mr. Pestill also has the ability to obtain illegal firearms which heightens his risk. If Mr. Pestill was released into the community, there is a high degree of probability that he will endanger either the life or safety of another.
33I do not share Dr. Pierce’s optimism given the lack of any progress to date. But, if over time and treatment Mr. Pestill’s high risk is substantially reduced, there is a pathway to rescinding the designation and the availability of other dispositions under s. 672.54(a), (b) and (c).
34I therefore make the following orders:
- An order under s. 672.54(c) of the Criminal Code, directing that Mr. Pestill be detained in custody in a hospital, subject to the following conditions: a) Abstain from communicating, directly or indirectly, with any members of Michael Ryan’s family; b) Remain at least 500 metres away from any place of residence, employment, and worship of persons referred to in subparagraph (a) above, and any other place where the defendant knows those persons to be; c) Do not possess any weapons as defined by the Criminal Code.
- An order under s. 672.64(1) of the Criminal Code, finding Mr. Pestill to be a high-risk accused.
- An order under s. 487.051(3)(a) of the Criminal Code, authorizing the taking of DNA samples for purposes of the National DNA databank.
Issue 2: What Should the Sentence Be for the Drug and Gun Offences?
35Mr. Pestill was convicted of: a) unlawfully possessing a loaded prohibited or restricted firearm; b) possessing a firearm while prohibited from doing so; c) possessing a Schedule I substance, namely methamphetamine, for the purpose of trafficking; and d) possessing a Schedule I substance, namely cocaine, for the purpose of trafficking.
36Mr. Pestill was arrested on January 21, 2022. He had on him a fully functional 40 Smith and Wesson calibre semi-automatic handgun with a round of ammunition in the chamber but the magazine removed in his knapsack. It is classified as a “prohibited firearm” under the Criminal Code. A plastic bag containing nine more rounds of 40 Smith and Wesson calibre ammunition was found in his knapsack. He had on him a magazine for a handgun containing six rounds of 40 Smith and Wesson calibre ammunition. Mr. Pestill was bound by a Criminal Code order prohibiting him from possessing any type of firearm.
37The following drugs and items were found on him and his knapsack.
a) 1 bag of about 75.1 g of cocaine;
b) 3 bags of crystal methamphetamine, in quantities of about 93.1 g, 28 g, and 75.4 g (total 196.5 g);
c) A digital weigh scale and a glass pipe; and
d) Over $20 000 in cash.
38With respect to the gun and drug offences, I found that the defence had not discharged their onus to prove a s.16(1) defence:
Dr. Gojer’s evidence does not address these issues with respect to the gun and drug offences. The defence has not addressed them either in their written submissions. In oral submissions, the defence made no submissions with respect to the drug offences. The defence did submit that there was evidence that the accused bought the gun because he was concerned about the demonic entities and therefore should be found not criminally responsible. I agree that the accused did testify in this regard, and I accept his testimony on this point. I agree that the accused was suffering from a mental disorder but that is only one aspect of the test as set out above. There is no evidence that the accused, when he bought the gun, was “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”
Aggravating and Mitigating Factors
39With respect to sentencing, the following are the aggravating factors:
- A significant amount of drugs was found on Mr. Pestill;
- While Mr. Pestill used drugs himself, he clearly also sold drugs to make money;
- Mr. Pestill has a related criminal record. He has four prior convictions for possessing drugs for the purposes of trafficking; and
- The illegally possessed gun was used in a subsequent killing.
40The following are the mitigating factors:
- Mr. Pestill bought the gun while suffering from a mental disorder where he was concerned about demonic entities; and
- Mr. Pestill has the support of his family.
Law and Analysis
41Section 718 of the Criminal Code describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and,
(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
42Further, s. 718.1 of the Criminal Code provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
43Section 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 provides the following with respect to the purpose of sentencing:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
44This case involves possessing hard drugs for the purposes of tracking and possessing a loaded firearm. Sentencing in such cases must further the goals of denunciation, deterrence and the protection of the public. With respect to the firearm offence, it cannot be forgotten that handguns serve no legitimate purpose. Gun violence is a pox on our society; R. v. Nur, 2015 SCC 15, at para. 5, R. v. Mohammed, 2017 ONCA 691, at para. 6, R. v. Marshall, 2015 ONCA 692, at paras. 47-49.
45Cocaine is a dangerous drug. The more dangerous the drug the higher the sentence that will be imposed; R. v. Lynch, 2022 ONCA 109, at para. 15.
46Sentencing is an individualized process and sentencing ranges are not meant to handcuff the court; R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, at para. 9, R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44.; R. v. A.J.K., 2022 ONCA 487 at para. 71. In addition, in this case Mr. Pestill has been found guilty of a number of offences. The court must ensure that the total sentence is proportionate to the culpability of the offender; R. v. Hannora, 2020 ONCA 335 at paras. 7-10.
47The Crown seeks a total sentence of 8 year: 4 years for the drug offences; one year consecutive for the weapons prohibition violation and 5 years consecutive for possessing the gun itself; less two years in order to take into account the principles of totality. The defence seeks a sentence of time served.
48I agree with the Crown that a sentence of four years is completely appropriate for the drug offences having regard to all the aggravating and mitigating factors, especially his past record. He should receive a sentence of four years for each drug offence concurrent to each other.
49I also agree with the Crown that a separate sentence of one year should be imposed on Mr. Pestill for possessing a gun while being prohibited from doing so “to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished.” R. v. Claros, 2019 ONCA 626 at para. 51-52.
50I also agree that in the normal course a sentence of at least three years would be appropriate for possessing the loaded gun in a public place. As stated by Favreau J.A. in R. v. Burke-Whittaker, 2025 ONCA 142 at para. 38:
Given the seriousness of the offence and the need for denunciation and deterrence, this court has stated that incarceration will almost always be required: Morris, at para. 71. In the normal course, the sentencing range begins at the low end of the penitentiary range for first-time offenders convicted of possessing a loaded prohibited firearm in circumstances where there is no other criminal activity: [cites omitted]
51However, the Crown’s position does not take into consideration the critical factor that Mr. Pestill bought the firearm because he was suffering from a mental disorder and believed he needed the gun for protection against demonic entities. While I found that Mr. Pestill has not met his onus to show that he was not criminally responsible, clearly the reason why he bought the gun and his mental disorder reduces his moral responsibility. In my view, a sentence of one year is appropriate.
52Therefore, in my view, a total sentence of 6 years or 2,190 days is appropriate for the drug and gun offences.
Credit for Pre-Sentence Custody
53The Crown and the defence both agree that Mr. Pestill is entitled to credit for the time he has served in custody up to this point. The standard credit is 1.5 days for every one day served in pre-sentence custody. This applies to all accused not just Mr. Pestill. The rationale for providing such credit was set out by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 22:
Courts generally gave enhanced credit in recognition of the fact that "in two respects, pretrial custody is even more onerous than post-sentencing custody" (Rezaie, at p. 721). As Laskin J.A. explained:
First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial.
54As explained in R. v. Marshall, at para. 51:
The "Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.
55Mr. Pestill has served 1,192 days in pre-sentence custody. He is entitled to a credit of 1,788 days. He has a remnant of 402 days.
Issue 3: Where Should the Sentence Be Served?
56The Crown submits that Mr. Pestill should serve the remnant in jail while the defence submits that he should serve the remnant in the hospital. The Criminal Code does not describe where the sentence should be served when an accused is found by a court at the same time to be not criminally responsible for some offences but guilty for others. The Criminal Code does set out that if an accused is found not criminally responsible for new offences while serving time in jail for older offences, that he should then serve his time in a hospital; while an accused who is found guilty of new offences while serving a not criminally responsible disposition in a hospital should serve the new sentence in jail. Section 672.67(1) and 2 state:
672.67 (1) Where a court imposes a sentence of imprisonment on an offender who is, or thereby becomes, a dual status offender, that sentence takes precedence over any prior custodial disposition, pending any placement decision by the Review Board.
(2) Where a court imposes a custodial disposition on an accused who is, or thereby becomes, a dual status offender, the disposition takes precedence over any prior sentence of imprisonment pending any placement decision by the Review Board.
57If the sentence is served in the hospital, then a day in custody at the hospital is deemed to count for a day of imprisonment; s. 672.71 (1).
58The Crown submits that if Mr. Pestill serves his sentence in the hospital, it will be as if he has served no real sentence. This submission fails to reflect that to date, Mr. Pestill has served almost the equivalent of five years in real jail.
59In my view, society is best protected by having Mr. Pestill serve his sentence in a custodial hospital where attempts to have Mr. Pestill treated can start. Mr. Pestill has slightly over a year left in his sentence. If he was to serve that sentence in a provincial jail, he would only serve 2/3 rd of that sentence before being transferred to the hospital. It is unlikely that any effective attempts at treatment could take place within that time. A delay in attempting to treat Mr. Pestill does not just effect Mr. Pestill, it effects society as a whole. I also note that this would be consistent with the Criminal Code sections on this point which clearly has an accused serving the sentence based on the more recent finding. In this case, it is evident that the accused had on him the gun and drugs before killing Mr. Ryan.
60Therefore, I am imposing the sentence for the gun and drug offences first and then the disposition order for the not criminally responsible finding second. Mr. Pestill shall serve the remnant of his sentence in custody at a hospital.
61There shall also be:
a. a firearms prohibition order under s. 109 of the Criminal Code for life.
b. an order under s. 487.051(3)(b) of the Criminal Code, authorizing the taking of DNA samples for purposes of the National DNA databank.
c. an order under s. 743.21 of the Criminal Code, prohibiting communication, directly or indirectly, with any members of Michael Ryan’s family.
d. a forfeiture order.
62Mr. Pestill was found with $20,000 on him. He has relinquished all rights to that money. The Crown has asked that I make a restitution order to Mr. Ryan’s daughter under s. 738(1) of the Criminal Code to be taken from the $20,000 under s. 741(2) as restitution for the cost of the additional year she had to spend at university because of her father’s death. The financial losses are well document. In addition, Mr. Ryan’s son seeks restitution for the counselling sessions he took as a result of his father’s death. Again, the financial loss is well documented. The defence does not object. The restitution orders will go as requested.
Date: April 25, 2025 _____________________________
The Honourable Justice H. Leibovich
