R. v. Carnicelli, 2026 ONSC 4006

CITATION: R. v. Carnicelli, 2026 ONSC 4006

COURT FILE NO.: CR: 25-1200

DATE: 2026-07-09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

G. Huh, for the Crown Attorney,

• and -

ALEXANDER CARNICELLI

J. Boutros, on behalf of the offender

HEARD: June 1, 2026

REASONS FOR SENTENCE

A.J. GOODMAN J.:

1The offender, Alexander Carnicelli (“Carnicelli”), plead guilty to six offences including, conspiracy to commit the indictable offence of robbery, possession of a loaded prohibited firearm, discharge firearm with intent, and three breaches of firearm prohibition orders, contrary to their respective provisions in the Criminal Code, R.S.C. 1985 c. C-46. Convictions were registered on the indictment.

2These offences occurred on January 16, 2024 in the City of Hamilton. An Agreed Statement of Facts was filed.

3The parties proffered a joint position for my consideration.

4Ms. Huh, for the Crown attorney, joins defence counsel and seeks a global sentence of eight years along with various ancillary orders.

5Ms. Boutros on behalf of her client seeks the “usual Summers” credit and additional enhanced mitigation consideration. The defence says that Carnicelli has endured harsh conditions in pre-sentence custody at Maplehurst Detention Centre, including lockdowns, medical issues, and triple bunking. When reduced for the requisite mitigation and other credits, counsel submits that the remaining time to serve ought to be reduced by 12 months to an effective sentence of four years and five months. In the alternative, counsel submits that a five year sentence would be appropriate to reflect the guilty plea and aforementioned considerations. There is essentially no issue with respect to the ancillary orders requested by the Crown.

Circumstances of the offence:

6The circumstances of the convictions are outlined in the Agreed Statement of Facts filed by the Crown. Briefly, the salient facts include:

On August 26, 2016, Justice M. Zivolak prohibited Carnicelli from possessing any firearms for ten years and he was prohibited from possessing any prohibited firearm or restricted firearm for life.

On September 22 2021, Justice F. Campling placed Carnicelli on probation for three years. He had conditions to keep the peace and be of good behaviour and to not possess any weapons as defined by the Criminal Code. On the same date, Justice Campling also prohibited Alexander Carnicelli from possessing any firearm for ten years.

On March 2, 2023, Justice M. Agro placed Carnicelli on probation for three years. He had conditions to keep the peace and be of good behaviour and to not possess any weapons as defined by the Criminal Code.

On Tuesday, January 16, 2024, at approximately 6:48 p.m., a shooting occurred outside 32 King Street West in Stoney Creek. The initial shooting took place on foot when the shooter discharged a firearm at the victim, Luther Malapela, as he was driving westbound on King Street West. The incident escalated when the shooter entered the passenger seat of a stolen white Honda Ridgeline truck, which was being driven by a second suspect.

The Honda Ridgeline pursued Mr. Malapela westbound on King Street West, then northbound on Centennial Parkway North, and finally eastbound on Barton Street East. During the pursuit, the shooter fired several additional shots at Mr. Malapela. The Honda Ridgeline also intentionally collided with Mr. Malapela’s vehicle multiple times. The pursuit ultimately ended at Barton Street East and Grays Road.

Cell phone evidence, CCTV footage, and other forensic evidence revealed the shooter to be Mr. Carnicelli and the driver of the Honda Ridgeline to be Mr. Gustin-Grolleman.

Police received multiple 911 calls regarding the incident. Initial information indicated that 5 to 6 gunshots had been heard and that a male was seen running from the Glenview/Parkview Apartments area at 32 King Street West in Stoney Creek and entering a white pickup truck. One of the callers, Luther Malapela, reported that he was being followed in his vehicle by someone firing gunshots at him. He advised police that a white Honda truck was attempting to ram his vehicle, with both the passenger and the driver shooting at him. The truck pursued Mr. Malapela as he drove westbound on King Street West, northbound on Centennial Parkway North, and then eastbound on Barton Street East. Mr. Malapela advised 911 that the truck had turned onto Grays Road.

Police arrived on scene and established a perimeter around 34 King Street West. The crime scene contained eleven fired cartridge casings. A witness approached police and advised that while he was travelling in his Chevrolet Express Van on King Street West, his vehicle was struck by a bullet. Constable Pilipovic located a projectile in the driver’s footwell of the Chevrolet.

Another stray bullet struck a parked 2020 Brown Toyota Highlander. The vehicle had been parked in front of 50 King Street West in Hamilton. Forensic officers examined the vehicle and located one projectile hole on the exterior of the vehicle with no exit hole. Upon further examination, a bullet projectile could be seen in the bottom of the rear passenger door. This projectile was retrieved and confirmed to be a partially intact bullet.

The victim of the shooting, Luther Malapela, provided two statements to police. In the first statement, Mr. Malapela claimed that he had no idea who would want to shoot at him and claimed that he was going to the Beer Store when a white Honda pick up struck him from behind. He then heard two shots being fired. Mr. Malapela turned right and heard three more shots. Mr. Malapela described the pursuit in detail. Mr. Malapela claimed he could not provide a description of the driver and claimed he did not recognize the passenger, who had something black in his hand when his arm was out the window.

The Hamilton Police Service Forensics Unit examined Mr. Malapela’s vehicle, a 2020 dark blue Mazda CX-3, pursuant to a consent search. The rear passenger-side tire was flat, and there were two bullet holes in the rear of the vehicle, as well as a third bullet hole beneath the handle of the rear driver-side door. In addition, there was damage along most of the driver’s side of the Mazda, and the lower front bumper was damaged. A projectile was located in the interior side of the rear door to the trunk.

Shortly after the shooting, Cynthia Cousineau, the mother of Mr. Carnicelli, contacted police to report that she believed her son was involved in the incident that had just occurred at 32 King Street West. She advised that Mr. Carnicelli had left their apartment at 28 King Street West at 6:29 p.m. At 7:06 p.m., Mr. Carnicelli called her and asked whether she had heard the loud bangs outside their apartment. He told her to lock the doors and not let anyone into their home. Following this call, Cynthia Cousineau contacted police to inquire whether a shooting had just occurred outside her residence.

Cynthia Cousineau told police that, earlier on January 16, 2024, at approximately 9:45 a.m., she had kicked one of Mr. Carnicelli’s friends out of their home. She knew this friend only by the name “Ethan.” Cynthia Cousineau provided police with video from her doorbell camera and gave them Mr. Carnicelli’s phone number, which was 905-519-9970.

Police conducted a review of all relevant CCTV footage. The footage showed Mr. Carnicelli exiting his apartment at 28 King Street West, taking the elevator to the lobby, and leaving the building. He then approached the stolen white Honda Ridgeline that was waiting outside. A few minutes later, Luther Malapela’s vehicle was observed idling in front of the residence. Mr. Carnicelli was then seen walking away from the stolen Honda and entering Mr. Malapela’s vehicle.

Mr. Malapela drove to the rear of the apartment building, where the vehicle was out of camera view for several minutes. Mr. Malapela’s vehicle was then seen exiting the parking lot and driving westbound on King Street West. Immediately afterward, Mr. Carnicelli was observed running after Mr. Malapela and firing a gun. Mr. Carnicelli then entered the passenger seat of the stolen white Honda Ridgeline, which pursued Mr. Malapela’s vehicle.

CCTV footage along Centennial Parkway and Barton Street showed the stolen Honda continuing to chase Mr. Malapela’s vehicle. When both vehicles turned onto Barton Street, the sound of gunshots could be heard on the recording.

On January 17, 2024, police recovered the stolen white Honda Ridgeline truck that matched the description of the vehicle used in the shooting. The truck was located at 19 Gladstone Avenue in Hamilton and was towed for a forensic examination. During the search, police located a 9mm spent casing in the rear truck bed liner. In addition, the vehicle was examined for the presence of gunshot residue. This testing was submitted to the Center of Forensic Sciences (“CFS”), which identified twenty-eight gunshot residue particles from the interior of the Honda Ridgeline truck.

A Powerade plastic bottle was also located under the front driver’s seat of the Honda Ridgeline. A DNA swab taken from the bottle was submitted to the CFS for testing. A male DNA profile was developed from the swab, uploaded to the National DNA Data Bank, and matched to Mr. Eathan Gustin-Grolleman. A DNA warrant was obtained, which confirmed this match.

On January 19, 2024, Hamilton Police arrested Mr. Gustin-Grolleman in relation to an unrelated investigation. During the arrest, Mr. Gustin-Grolleman was found in possession of a Taurus G3C semi-automatic handgun loaded with 9mm ammunition. This firearm is a prohibited firearm. Three test fires were conducted using this firearm and the resulting fired cartridge cases were collected and submitted to the CFS for analysis.

Police also submitted several fired cartridge casings seized from the north sidewalk beside the driveway to 34 King Street West for IBIS testing. On February 23, 2024, a forensic scientist from CFS authored a report concluding that the cartridge casings collected from 34 King Street West were fired from the same gun found in the possession of Mr. Gustin-Grolleman.

Neither Mr. Carnicelli nor Mr. Gustin-Grolleman had a licence or authorization permitting them to possess firearms.

As a result of his arrest, Mr. Gustin-Grolleman’s cell phone was seized. Hamilton police obtained a search warrant and production order for Mr. Gustin-Grolleman’s cell phone. On January 21, 2024, Alexander Carnicelli was arrested by the Ontario Provincial Police on an unrelated investigation. During the arrest, the OPP seized Mr. Carnicelli’s cell phone.

Police were granted warrants to examine Mr. Carnicelli and Mr. Gustin-Grolleman’s cell phones. On each device, officers found evidence that the two had conspired to rob Luther Malapela of two ounces of drugs, one ounce of cocaine and one ounce of fentanyl. The detailed text message exchange between Mr. Carnicelli and Mr. Gustin-Grolleman outlined their motive for the robbery, namely that Mr. Malapela was charging too much for the drugs. The messages also set out their plan to divide the proceeds of the robbery 50/50. After the robbery was carried out, both men expressed concern that police were onto them, referencing the media release, and discussed the need to flee the city.

While Mr. Carnicelli and Mr. Gustin-Grolleman were texting each other about their plan to rob Mr. Malapela [while Mr. Carnicelli acknowledged a plan to rob someone, he does not acknowledge that the intended target was Mr. Malapela]. Mr. Carnicelli was also texting an individual listed as “G” in his phone. Mr. Carnicelli and “G” arranged the sale of one ounce of cocaine and one ounce of fentanyl at the same time and for the same price that Mr. Carnicelli and Mr. Gustin-Grolleman were planning the robbery. After the shooting, Mr. Carnicelli sent a text message to “G” stating, “u gon rip me off eh cuz.” A photo of the stolen white Honda Ridgeline used in the shooting was located on Mr. Gustin-Grolleman’s cell phone.

Circumstances of the offender:

7No Pre-Sentence report was prepared. However, Ms. Boutros filed comprehensive materials in support of her client. Included in the materials are affidavits and information related to Carnicelli’s background and time in custody pending sentence. According to the defence materials filed:

8Carnicelli is 30 years old and is the youngest of four children. When he was young, Carnicelli’s mom worked most of the time, so he spent a lot of time and was close with his brother, who was 12 years older. Carnicelli looked to his brother as the man of the house. Carnicelli lived with his mother until he was about 16/17, then he moved in with his father, who he lived with until about 19/20. After which, he lived with his girlfriend for a period of time.

9After release from his first penitentiary sentence, Carnicelli went back to live with his mother. He still had some issues with the law, as evidenced by his criminal record.

10Carnicelli’s father passed away in November 2025 and this was a very devasting loss for him. The defence says that this was also a chilling wake- up call and Carnicelli accepts responsibility for his actions. He hopes that in doing so, he can begin his long journey back to being with his family.

11Carnicelli started getting in trouble in school around Grade 10/11. At the time, he had been diagnosed with ADHD but was not taking his medication. Carnicelli did not realize at the time that this may have undermined his performance in school contributed to some of his disciplinary issues. Carnielli obtained his diploma while at Millhaven. He is most interested in pursuing additional business & technology courses Carnicelli says that the difference between the person he was before and the person he is now, is his age. He appreciates that his time is limited and that he is not going to get any more chances turn his life around.

12Carnicelli does not have an extensive work history beyond working with his father – laying ceramic tile flooring. Holding down consistent work was difficult because Carnicelli acknowledges that he was in and out of legal trouble throughout his 20s. Upon release, Carnicelli would like to receive a trades certification, possibly in pipe fitting and welding, so that he can generate an income as he updates his education.

13Carnicelli’s brother died by suicide (overdose) in 2015. Carnicelli tried attending grief counselling, but it did not help. He says that after his brother died, it was very difficult for him to consistently attend counselling. After the loss of his brother, Carnicelli turned to substances to self-medicate. The defence says that this only worsened his mental state – and this is evident in the fact that his criminal convictions start ramping up in frequency and seriousness. In addition to PTSD, following the death of his brother, Carnicelli battled with depression and anxiety, coupled with his ADHD.

14The offender also presented a letter from his mother, Ms. Cynthia Cousineau, which I have briefly summarized:

“Please understand, I am not making excuses for the crimes that Alex has committed. They are egregious and put public safety at risk. Alex is taking responsibility for the crimes by pleading guilty to the charges. In his sobriety he understand the seriousness of the offences he has committed. He has expressed his remorse and regret to me many times and he is grateful that no one was killed or injured.

Alex has spent most of his 20’s in jail/prison. Now, having turned 30 during this incarceration, he has gained the maturity to recognize the suffering and loss that his lifestyle choices cause, to victims, family, and friends, particularly having lost his father during this time. Although this impending federal sentence will be his most severe, he is prepared to serve his sentence, participate in programs and end his cycle of recidivism.

Upon release, Alex will be living with me to continue recovery treatment, seek employment and education, with a goal towards becoming a contributing member of society. We know that this is not an easy road, but I believe with the programs that he will participate in and with the support of family and friends, and his desire to leave that part of his life behind.”

Legal Authorities:

15I have been provided with numerous cases from counsel on the issue of the appropriate sentence to be imposed. Given the joint position, the cases proffered address the enhanced credit analysis for an offender who has endured harsh conditions in the detention centre while awaiting disposition. In any event, I have taken the liberty to discuss the prevailing jurisprudence related to gun crimes and violence in the community.

General Principles in Firearms Sentencing:

16The gravity of gun crimes cannot be overexaggerated. Guns kill and maim, terrorize, and intimidate. For well over a decade, judges have emphasized the plague represented by firearms and the profound consequences that firearms have on the safety of our communities. Such concerns have been elevated in recent times with the proliferation of gun crime in Hamilton.

17In R. v. Brown, 2010 ONCA 745 at para. 14, the court held:

…[H]andguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

18In the leading case of R. v. Nur, 2015 SCC 15 (Moldaver, J. in dissent) opined, at paras. 131 and 136:

131 Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime…

136 Section 95 targets the simple possession of guns that are frequently used in gang-related and other criminal activity. Parliament has concentrated on simple possession for a reason: firearms – and particularly the firearms caught by s. 95 – are inherently dangerous. In R. v. Felawka, the Court recognized that “[a] firearm is expressly designed to kill or wound” and that “[n]o matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence” (p. 211). As the Attorney General of Canada observes in his factum, this sober reality resonates all the more for “restricted firearms (principally handguns) and prohibited firearms (principally machine guns and sawed-off rifles or shotguns).” These firearms are “the most strictly regulated because they are either easily concealable or generally do not serve a legitimate hunting or target shooting purpose.” Outside of law enforcement, these guns are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill. (Citations omitted).

19In R. v. St. Clair, 2018 ONSC 7028, at para 47, the court stated:

The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. Often, as illustrated by the facts in the present case, individuals engaged in the business of drug trafficking have loaded firearms as one of the tools of their illicit trade. In any event, the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences…

20In R. v. Kawal, 2018 ONSC 7531 at para. 11, the judge affirmed:

Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it, “Gun-related crime poses grave danger to Canadians.” The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

21In R. v. Chizanga and Meredith, 2020 ONSC 4647, Harris J. related the following, at para. 7:

The primary purpose of illegal guns is to threaten, to maim and to kill. Lawyers and judges see first-hand the destruction wrought by guns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that guns are not available for criminal purposes.

22Recall that in affirming the Ontario Court of Appeal’s ruling, the Supreme Court of Canada in Nur, at para. 82, agreed with Doherty J.A. that cases within the spectrum may warrant sentences of three years or more:

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

23Since Nur, the maximum sentence for a s.95 conviction was increased from 10 to 14 years through Bill C-21, which came into force on December 15, 2023.

Combination of firearms and other criminal activity:

24The jurisprudence is replete with cases that adopt sentences longer than mid range penitentiary imprisonment to be imposed on offenders who use or possess firearms in association with other criminal activity.

25For example, in R. v. Edwards-Lafleur, 2023 ONSC 5463, I sentenced the offender to seven years for robbery with a firearm, and five years consecutive for intent to wound with the discharge of a firearm. In addition, with regards to possessing a restricted or loaded firearm, two years consecutive, but concurrent to each other. In respect of breaches of weapons prohibition orders, one year consecutive, but concurrent to each other, which totaled 15 years, reduced to 13 years, for totality. There was further mitigation for pre-sentence custody considerations.

26The Edwards-Lafleur case along with recent jurisprudence tends to illustrate and increase the starting point from the range identified in Nur and the aggravating feature when firearms are combined with other criminal activity.

Breach of Prohibition Orders (s.117.01)

27In R. v. Degraw, 2018 ONCA 51, at para. 11, the court stated:

The legislative intent behind weapons prohibition orders is not simply to keep firearms and other dangerous weapons out of the actual hands of those at whom the orders are directed. People are not randomly targeted for weapons prohibition orders. They find themselves the subject of such orders on account of their prior conduct, conduct that typically suggests a future risk to public safety if weapons are possessed.

28Similarly, in R. v. Jones, 2011 ONSC 5330, [2011] O.J. No. 4026 (S.C.), M.G. Quigley J. held at paras. 50-51:

In my view, the legal principles and balance of the case law support a conclusion that sentence for the breach of the probation order should be imposed consecutively to the firearms offence. The offences do arise from the same transaction, but I fully accept the Crown’s submission that they do not protect the same societal interests. Protection of those differing interests demands that sentences for those differing crimes be served consecutively, not concurrently. In my view, if prohibition and probation orders are going to have any meaning and impact, they must be enforced.

This offender knew perfectly well at the time he agreed to carry and transport a firearm ... that he was subject to a prohibition order. To impose a concurrent sentence would, in many respects, make the offence of violating prohibition and probation orders superfluous. Why bother to have respect for the law when failure to adhere to the order carries no consequence beyond the punishment for the principal offence? In my view a consecutive sentence is required. It is required as part of the exercise of forcing this offender to take responsibility for his actions and knowing that he is serving not only the substantive firearms offence, but also the separate sentence for offences against the administration of justice, and that it is not a mere trifle.

29Sentences for breaches of prohibition orders are generally in the range of six to 18 months jail. In R. v. Carrol, 2014 ONSC 2063, at para. 30, Molloy J. held that breaching one prohibition order will typically warrant a one-year jail sentence, whereas 18 months jail is a fit sentence for multiple breaches.

30Premised on the prevailing jurisprudence from trial and appellate courts, in this regard, I agree with the approach of imposing consecutive sentences for flagrant breaches of weapons or firearms prohibition orders.

General Principles:

31The court is guided by the principles of sentencing as set out in 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence, and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

32Section 718.2 of the Criminal Code addresses the principles of totality, parity, and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.

33The primary objectives in cases of this nature are general deterrence and denunciation: see e.g. R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 57. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: see R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23. Denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct.

Aggravating factors:

34The aggravating factors in this case include the nature of the conduct; the discharge of the firearm. Not just at one location but continuing through the streets of Stoney Creek while chasing another individual. This can only be described as wanton and flagrant disregard for the public and others alike, during the course of firing indiscriminately over a period of time and distance.

35The offender’s extensive criminal record includes:

36On June 5, 2013, in Cayuga, Carnicelli was convicted of Break and Enter with intent. On the same date, he was convicted of Break, Enter and Commit, Possession of Property obtained by Crime under $5,000, and Dangerous Operation of Motor Vehicle. He was sentenced to 14 months and (86 days pre-sentence custody) concurrent.

37On December 3, 2014, in Milton, Carnicelli was convicted of Fail to Comply with Probation order. He was sentenced to one day and 12 months Probation (14 days pre-sentence custody).

38On April 23, 2015, in Hamilton, Carnicelli was convicted of Fail to Comply with Probation order. He was sentenced to a Suspended Sentence and one year Probation (45 days pre-sentence custody).

39On October 18, 2015, in Hamilton, Carnicelli was convicted of Use of a Firearm. He was sentenced to 18 months, with 18 months Probation and Mandatory weapons Prohibition. On the same date, he was convicted of Possession of a weapon and was sentenced to 18 months concurrent and 18 months Probation. He was also convicted of Fail to Comply with Recognizance and fail to comply with a probation order. He was sentenced to 9 months concurrent.

40On August 26, 2016, in Hamilton, Carnicelli was convicted of Fail to Comply with Recognizance and Fail to Comply with Probation order. He was sentenced to nine months jail and six months concurrent. On the same day he was convicted of Assault with a Weapon, Uttering Threats and Fail to Comply with Probation order. He was sentenced to one day jail plus probation (credit for equivalent of six months pre-sentence custody).

41Also, on August 26, 2016, in Hamilton, Carnicelli was convicted of Fail to Comply with Probation order and Fail to Comply Recognizance. He was sentence to 22 days and probation (credit for the equivalent of 6 months pre-sentence custody).

42On May 10, 2018, in Hamilton, Carnicelli was convicted of Fail to Comply with Probation order x2, and Fail to Attend Court. He was sentenced to one day concurrent.

43On December 13, 2018, in Milton, Carnicelli was convicted of Theft under $5,000. He was sentenced to 11 days (10 days pre-sentence custody).

44On May 7, 2019, in Hamilton, Carnicelli was convicted of Fail to Comply with Probation order. He was sentenced to 30 days concurrent. Carnicelli was convicted of Theft under $5,000. He was sentenced to 15 days concurrent. He was also convicted of Fraud over $5,000 and theft under $5000 and was sentenced to two years and one day jail (with credit for the equivalent of 180 days pre-sentence custody). Also, on the same date, he was convicted of Use a Forged Document and Possession of Credit Card, and Fraud under $5000. The sentence was concurrent. Finally, on the same date, he was convicted of Obstruct Peace Officer and was sentenced to 15 days concurrent. He also convicted of other theft charges and fail to Comply with Probation order and sentenced to three months concurrent on all counts.

45On September 22, 2021, in Hamilton, Carnicelli was convicted of Assault Peace Officer with a Weapon. He was sentenced to 52 days, with three years Probation (credit for the equivalent 118 days pre-sentence custody) and a Discretionary weapons Prohibition for 10 years.

46On October 6, 2021, in Cayuga, Carnicelli was convicted of Uttering Threats. He was sentenced to 12 months, 18 months Probation and Discretionary weapons Prohibition for 10 years.

47On January 19, 2022, in Hamilton, Carnicelli was convicted of Theft under $5,000, Fail to Comply with Probation order, Take Motor Vehicle without consent and Fail to Comply with Probation order x2. He was sentenced to 20 days (credit for the equivalent of 15 days pre-sentence custody), concurrent to all counts.

48On March 2, 2023, in Hamilton, Carnicelli was convicted of Possession of Property obtained by Crime over $5,000, Dangerous Operation of a Conveyance. He was sentenced to one day concurrent (nine months pre-sentence custody) and Prohibited from operating a motor vehicle for three years. On the same date, he was convicted of Fail to Comply with Probation order. He was sentenced to one day concurrent (nine months pre-sentence custody). On the same date, he was convicted of Dangerous Operation of a Conveyance s. 320.13(1) CC. He was sentenced to 12 months jail, three years Probation (credit for the equivalent of 12 months pre-sentence custody) and prohibited from operating a motor vehicle for seven years. Further, he was convicted of Possession of Property obtained by Crime over $5,000, Arson causing damage to Property, Fail to Comply with Order, Fail to Comply with Probation order and Fail to Comply with Order. He was sentenced to 12 months concurrent and three years Probation (credit for the equivalent of 12 months pre-sentence custody), concurrent and concurrent.

49Finally, on October 16, 2025, in Burlington, Carnicelli was convicted of Possession of Property obtained by Crime over $5,000, Fail to Comply with Probation order and Obstruct Peace Officer. He was given a suspended sentence with probation (credit for the equivalent of 12 months pre-sentence custody), and a discretionary weapons prohibition.

Mitigating factors:

50The offender pleaded guilty. A guilty plea is a significant mitigating factor as it demonstrates remorse, acceptance of responsibility and an acknowledgement of the harm done to the community.

51In the materials filed, the offender expressed some degree of regret for his actions. He has the backing and support of his family.

Application of the Relevant Legal Principles to this Case:

52A court is guided by the overarching principles of totality, restraint, and proportionality. The starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. As Lebel J. explained in R. v. Ipeelee, 2012, SCC 13 at para. 37:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

53Section 718(2)(b) of the Code specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

The Prevalence of Gun Crime in the Community

54Sentencing judges may properly consider the prevalence of gun crime in sentencing offenders for firearm-related offences. The direction from the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 87-105, instructs me that I am consider local conditions. As the majority of the Supreme Court of Canada explained in Lacasse, at para. 89, the prevalence of a crime in a community is a relevant factor insofar as it may signal a need to denounce and deter such conduct:

Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge. In M. (C.A.), Lamer C.J. stated the following:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community [Emphasis added; para. 91].

55The prevalence of firearm offences in Hamilton is and continues to be a serious problem for citizens. This type of offence serves to reinforce fear and undermines the safety of citizens in this community. The fact that the firearm was used in the manner evidenced by the ASF is a highly aggravating factor: See Nur, at paras. 131-145.

56Clearly, the prevalence of gun crime in Hamilton is a very serious concern. This includes both possession, and in particular, use offences related to handguns and prohibited firearms.

57As referenced at the outset, there is a joint position for my consideration.

58To reiterate that I am troubled and concerned about the joint proposal would be an understatement. For this most serious offence with the underlying facts, and in considering this particular offender’s antecedents, the range ought to have had a starting point of nine to 10 years’ incarceration.

59Indeed, it is fortunate that no intended target or any other innocent bystander did not sustaining serious injuries or death. In this case, discharging a firearm with intent to endanger life must be considered as falling near the upper end of the gravity spectrum.

60In this case, it is clear that the offender was prohibited from possessing any firearm, much less employ it in the course of the conspiracy to commit robbery.

61In my opinion, this case warrants a denunciatory sentence at the highest level. I refer to my decision of R. v Stephens, 2024 ONSC 35, (recently upheld by the Court of Appeal, citation: 2026 ONCA 390). While some of the facts in Stephens are distinguishable, for example, this was a sentence imposed after trial, there were injuries sustained by innocent bystanders, and the offender was subject to systemic rascism, I sentenced Mr. Stephens to ten and a half years with enhanced reductions for specific mitigating factors.

62In Stephens, I discussed several cases that address gun violence in the community.¹

63In the matter of R. v. Bellissimo, 2009 ONCA 49, the Court of Appeal held that the range of sentence for serious gun-related offences is between seven and 11 years.

64Since Bellissimo, the prevailing jurisprudence in Ontario has adopted this range in cases of firearms-related violence: See R. v. Dhaliwal, 2018 ONSC 303, R. v. Reis, 2017 ONSC 2044, R. v. Callaghan, 2017 ONSC 1853, R. v. Ali, 2016 ONSC 8190, R. v. Nadon, 2016 ONSC 3518, R. v. Alexander, 2013 ONSC 171, R. v. Michael Larmond, 2011 ONSC 7170, R. v. Walker-King, 2011 ONSC 4307.

65Specifically, in R. v. Jefferson, 2014 ONCA 434, the Court of Appeal re-affirmed the appropriateness of high single digit to double digit sentences for serious firearm offences. The accused in that case was found guilty following a trial before judge and jury of discharging a firearm and possessing a firearm while prohibited. Evidence at the trial established that the accused walked out onto a roadway, stopped in front of a vehicle occupied by the victim, pulled out a gun, and fired a single shot through the car window. The bullet struck the victim in the arm. The accused and victim had a history of animosity, violence, and drug trafficking. Although the accused had sought to raise the issue of self-defence, the Court of Appeal upheld the trial judge's ruling that there was no air of reality to that claim on the facts of the case. The trial judge sentenced the accused to 10 ten years.

66In upholding the sentence as fit in the circumstances, the Court of Appeal in Jefferson noted, at para. 14:

... Although the trial judge favoured an increase in the range of sentences for offences involving violence and firearms, in the end he imposed a ten-year sentence for the offences of discharging a firearm while prohibited. This was inside the seven to 11 year range for serious firearm offences set by this court in R. v. Bellissimo, 2009 ONCA 49, at para. 3. Moreover, the trial judge explicitly stated that "Mr. Jefferson's crime and his circumstances put him at the upper range of the existing range."

67In R. v. Weeden, 2019 ONSC 773, the accused was found guilty following a trial of aggravated assault, possession of a loaded firearm, and discharge with intent. He had attended a bar in downtown Toronto with his brother when a dispute had broken out with another group of club-goers. The accused retrieved a gun, brandished it at the other group, and fired a single shot. No one involved in the conflict was injured, but the bullet struck the victim who was sitting in a vehicle nearby. The accused then fled the scene.

68In determining the appropriate sentence, the judge in Weeden considered that the offender had a prior criminal record and was on a weapons prohibition order. The court noted that it was aggravating that the accused had time, albeit short, to deliberate on his actions, that he intentionally shot his gun towards a large group of people who could easily have been killed, and that the offence took place in a public place where bystanders were put at risk.

69The court ultimately imposed a sentence of nine and a half years on the charges of aggravated assault and discharge with intent. In reaching this conclusion, the Court adopted the Bellissimo range, holding, at para. 41, that “given the seriousness of gun violence offences such as this one, the range is between seven and 11 years” (citations omitted).

70In the case of R. v. Derby, 2022 ONSC 2266, the accused pleaded guilty to four charges arising out of a shooting in downtown Whitby. In that case, the accused had committed a drive-by shooting during which he discharged eight bullets at the victim's vehicle. A number of projectiles were found inside the vehicle, but the victim was uninjured.

71The accused had a number of significant mitigating factors. He was 31 years of age and had grown up in poverty, with 19 siblings. After periods of being placed in foster care, the accused had lost his closest sibling to an unsolved murder, which had a substantial impact on him. The accused had experienced racial discrimination and developed a fear of police. He had further served his pre-trial custody during the height of the COVID-19 pandemic and was subject to particularly harsh conditions. However, the offender has had a “troubling” criminal record including manslaughter, robbery, property crimes, and breaches of probation orders.

72After reviewing the case law relevant to sentencing for firearms-use offences, the judge in Derby went on to note that the Bellissimo range was not restricted to cases of actual injury, but also applied where injury was intended. The fact that one of more victim(s) ultimately suffers bullet wound injuries ought to, instead, be considered as a significant aggravating factor: Derby, at para. 81.

73In Derby, at para. 90, the court concluded that, despite the absence of any injuries to the victim, it was "confident that this case falls within the Bellissimo range. It is undoubtedly the kind of serious gun related offence to which the Court of Appeal intended the range to apply."

74Boswell J. ultimately held that the appropriate sentence for the offence and offender, even without any actual injury resulting, was one of ten 10 years, reducing this number to eight and a half years in consideration of the accused's guilty plea, the COVID-19 pandemic collateral consequences, and the impact of systemic racism on the offender.

75I agree with the overall analysis in Derby and similarly conclude that Bellissimo is not restricted to cases where the offender did intentionally discharge the firearm or meant or intended to harm someone.

76I am entitled to take judicial notice of the impact of increased gun related crimes and excessive violence with firearms as a result of recent shootings in the community.

77As I dialogued with counsel during the sentencing submissions in this case, I raised serious concerns about the proposed joint position. I requested both the Crown and defence to justify this sentence before me.

78Indeed, this is one of those rare cases where I seriously ruminated as to whether or not I ought to accept the joint submission and invite the parties back before me to again justify their stance.

79While I tend to be somewhat critical of the assistant Crown attorney in agreeing to this joint position, to be entirely fair, it is incumbent on me to reveal that I neither have the details nor background of the negotiations between the parties that lead up to the agreement. There is much that may have transpired behind the scenes, unbeknownst to the presiding jurist. However, despite my trepidation raised with counsel, no comments regarding the triable issues or the underlying rationale for this extremely low sentence proposal were placed on the record.

80I am mindful of the Supreme Court of Canada’s decision in R. v. Anthony Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at paras. 32, 35 and 42.

81When I consider the offender’s extensive related record for crimes of violence, breaches of court orders and other offences - unabated over the years, his wanton and flagrant use of a prohibited handgun in the course of conspiring to commit a robbery in Hamilton, the question is whether the proposed sentence gives adequate weight to the principles of denunciation, deterrence, and protection of the public. This whole fact pattern is akin to the age-old movie reference to the shooting at the “OK Corral”, with no disregard to human life. It is remarkable that no innocent citizen was otherwise maimed or killed.

82Carnicelli’s background and information lends nothing to the mitigation as these factors have existed and permeated his record since at least 2015, with his continued criminal behaviour with other crimes of violence. He has no insight into his actions and is a career criminal. While Ms. Boutros, provided persuasive submissions and materials, I am not convinced that the background information provided by the defence mitigated his repeated and continuous violent criminal behaviour.

83Nonetheless, while this is the closest I have ever come to outright rejecting such a joint sentence, I am also cognizant of the recent decision from the Court of Appeal in R. v. Beauparlant, 2026 ONCA 439, which discusses joint positions. I accept the joint eight years total sentence, with much trepidation.

84That being said, as will be detailed below; in addressing my concerns, I am inclined to exercise my discretion and not provide any further enhanced credit or mitigation.

Enhanced Mitigation for Pre-sentence Custody:

85The defence requests enhanced credit or mitigation for the harsh pre-sentence custody while at Maplehurst.

86Harsh conditions in the detention centres have been acknowledged by the Court of Appeal in R. v. Clarke, 2026 ONCA 152, at para. 13, and R. v. Brown, 2026 ONCA 164, at paras. 3-4. This is properly considered as a mitigating factor to be taken into account together with all other mitigating and aggravating factors in determining the appropriate sentence, and not as a deduction from an otherwise fit sentence.

87There is evidence that Carnicelli spent a significant amount of time in custody subject to lockdowns because of staffing shortages. In addition to this, he was often “triple bunked” and, at times had only sporadic access to fresh air. The unacceptability of such conditions has been the subject of frequent judicial disapproval: see e.g. R. v. Powell, 2020 ONCA 743, at para. 30; R. v. Johnson, 2022 ONSC 5899, at paras. 69-70; R. v. S.H., 2022 ONSC 4900, at paras. 88-90; R. v. Doyle, 2022 ONSC 2489, at paras. 54-59; R. v. T.T., 2022 ONSC 722, at para. 46; R. v. Osman, 2022 ONSC 648, at paras. 41-43, R. v. Fermah, 2019 ONSC 3597.

88Unduly harsh conditions of pre-sentence custody are a relevant factor on sentencing and reductions in sentence to account for them are often referred to as a “Duncan credit” after the decision in R. v. Duncan, 2016 ONCA 754.

89As Ms. Boutros rightly points out, “Duncan credit” has become a routine part of sentencing in the Toronto and other courts throughout this Province.

Analysis: Pre-Sentence Custody:

90In this case, the defence position is that this Court ought to grant a one-year sentence reduction by considering the harsh conditions at Maplehurst as mitigating, or through an actual mathematical breakdown as provided by counsel.

91As mentioned, during the sentencing hearing, Carnicelli provided an affidavit and other documentation related to the various custodial institutions where he spent the past several years. The evidence adduced during the sentencing hearing tends to support Carnicelli’s assertions about “partial” or “full” lockdowns, and the lack of privileges and other issues that befell him while being housed at the detention centre. He detailed his experience with the significant harsh conditions he endured while at Maplehurst.

92In addition to Carnicelli’s affidavit, there were records filed by the defence, which include a letter and report from the Ministry of Solicitor General Correctional Services – Maplehurst and March 2026 Lockdown Summary, along with OTIS - Shared Cell and Bed Assignments spreadsheet. The information includes references to dates of confinement, lockdowns, minimal or no yard time, lack of showers and double or triple bunking.

93The Crown did not challenge the veracity of the offender’s records and his testimony in relation to his custodial circumstances.

94In 2025 and 2026, Carnicelli experienced a total of 141 lockdowns; 101 full lockdowns and 40 partial lockdowns. When it comes to triple bunking, from September 21, 2024, Carnicelli was triple bunked at a rate of about 94% (585 days of triple bunking out of a total of 619 real days). The institutional records support these calculations.

95As mentioned, there is substantial support for the offender’s claim for additional consideration to reflect the harsh conditions at Maplehurst. In the normal course, I would be more than satisfied that the mitigation analysis for these harsh conditions would be invoked to Carnicelli’s benefit.

96However, as I related earlier in these reasons, the joint position proffered was at the praecipe of being rejected by me for failing to fall within the range of sentence for this offence and offender.

97Unlike the “Summers” credit, which is a deduction from what is determined to be the appropriate sentence, the “Duncan credit” is one of the factors that is taken into account in determining the appropriate sentence. A court may, but is not required to, identify a specific number of days or months as “Duncan credit.” ²

98Notwithstanding the reference to Duncan credit, as a mitigating factor in the overall sentence, and as directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 344, in this case, I am not prepared to consider this additional mitigating features as a reduction to apply towards the global sentence. In my opinion, any further enhanced mitigation would take this sentence completely out of the range and inadequate weight to the principles of denunciation, deterrence, and protection of the public.

Summers Credit:

99In the past, courts were divergent on how much credit to be provided to an offender for pre-sentence custody. This was borne out of the concern that offenders were not earning remission credit for their time in a detention centre prior to the impositions of sentence. Some judges were providing 1:1, 1:5, 2:1 and even up to 3:1 for such considerations.

100Eventually, the Supreme Court of Canada, laid this question to rest. Pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, generally, credit for every day spent in presentence custody is afforded at a rate of 1.5. to 1.

101This exercise is entirely discretionary, as referenced in Summers, at paras. 17 and 29.

102According to the defence, Carnicelli was arrested on January 21, 2024, on Halton charges. He was arrested on Hamilton charges on June 20, 2024. He used up eight months of his pre-sentence custody when he plead to his Halton charges in fall 2025 (enhanced to 12 months on Summers credit). No Duncan/Marshall credit was given. Therefore, the relevant period for any credit calculation on Carnicelli’s Hamilton charges is from September 21, 2024, to July 9, 2026.

103However, in this case, not only does my concern about the low joint-position come into fruition, but I am advised that this offender had a number of misconducts while housed at Maplehurst: a total of 11 misconducts, which apparently were substantiated. These included seven threaten or commit assaults between February 7 2024 and January 20, 2026. There is also a stabbing incident in September 2023.

104Whether or not these misconducts impact on earned remission, such behaviour ought not be condoned. Several of my colleagues do not consider whether this repeated misconduct or behaviour impacts the “usual” credit of enhanced credit or time pursuant to Summers. I take a different view.

105Given my concerns about the leniency of the joint position before me, and the offender’s behaviour while awaiting disposition, I am exercising my discretion and am disinclined to provide full Summers pre-sentence credit. In my view, it would also send the wrong message to those who conduct themselves in an oft-repeated and misconduct-laden behaviour in detention centres.

Disposition:

106It bears repeating that the sentence advanced by the Crown and defence is at the very extreme low end of the range. It is challenging to comprehend how the Crown would agree to such a low position given this offender’s extensive criminal record for crimes of violence, other serious offences, and numerous breaches of court orders, along with the egregious facts of this case. The facts reveal nothing short of a wanton and flagrant spree of firearms being discharged in the streets of this community with no regard for the safety of innocent citizens.

107Nonetheless, for the aforementioned reasons, and with some reluctance, I will accept the joint position of eight years.

108I impose a s. 109 weapons prohibition order for life. The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code.

109A forfeiture order is granted.

110With respect to count 1- conspiracy to commit robbery - (s. 465(1)(c)), four years jail; count 2 - possession of a loaded prohibited firearm- (s. 95(1)(a)), three years jail consecutive. Regarding count 3 – discharge a firearm with intent to endanger the life of Luther Malapel, (s. 244(2)), eight years concurrent and concurrent. In relation to count 6, being an occupant in a motor vehicle knowing that there was a firearm, - s. 94, two years concurrent, In respect of the two breaches of firearm prohibition orders, counts 9, and 10, (s. 117.01)), six months consecutive and consecutive. Finally, with regards to count 11, breach of firearm prohibition order, (s. 117.01)), six months concurrent.

111Therefore, the global sentence is eight years jail to be reflected on the warrant of committal.

112Notwithstanding the plethora of evidence adduced before me, there will be no further mitigation with regards to the offender’s pre-sentence detention while at Maplehurst Detention Centre. In my view, any further mitigation would be of inadequate weight to the principles of denunciation, deterrence, and the protection of the public.

113The offender has a total of 657 days of pre-sentence custody as it relates to these charges. As mentioned, and in the exercise of my discretion, this is a case where the usual Summers credit is not fully being afforded to this offender.

114Rather, the global sentence shall be deducted as a rate of 1.25 to 1 for time already spent awaiting disposition for this matter. This amount totals 821 days. The time-served credit is the equivalent of 27 months.

115Therefore, the net disposition is as follows: Carnicelli is sentenced to serve a term of imprisonment of 69 months or five (5) years and nine (9) months in a federal penitentiary.

116The victim surcharge is waived.

A.J. Goodman J.

Date: July 9, 2026

CITATION: R. v. Carnicelli, 2026 ONSC 4006

Footnotes

1. 1I take the opportunity to include several paragraphs of my prior decision in Stephens, which are wholly applicable in this case.
2. 2Where the quantum of “Duncan credit” is specified, the conceptual distinction explained in Marshall will not affect the ultimate sentence the offender will be required to serve. However, it will affect how the Warrant of Committal on Conviction is completed, as it requires the court to identify the term of imprisonment that would have been imposed before credit is granted pursuant to s. 719(3.1). As a result, “Duncan credit” is not specifically identified on the Warrant of Committal.