



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yang, 2018 ONCA 230

DATE: 20180309

DOCKET: C64436

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Yili Yang

Respondent

Kathleen Farrell, for the appellant

Mark Ertel, for the respondent

Heard and released orally: March 6, 2018

On appeal from the conviction entered on March 23, 2017
    and the sentence imposed on September 20, 2017 by Justice Matthew C. Webber of
    the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The respondent was found guilty of careless use of a firearm under s.
    86(3) of the
Criminal Code
. He received a conditional discharge. The
    Crown appeals against the conditional discharge and asks that a suspended
    sentence with probation be substituted in its place.

[2]

In our view, a conditional discharge was a demonstrably unfit
    disposition in the circumstances of this case.

[3]

The respondent was a licenced gun owner. While intoxicated late one
    evening, he fired a semi-automatic restricted 45 caliber Sig Sauer firearm
    inside of his apartment. He discharged three bullets. One of the bullets
    penetrated his neighbours apartment. The bullet came to rest in the living
    room area, next to where the neighbours childs toys were stored. As the trial
    judge said, these actions were about as careless as one can imagine and could
    easily have caused immeasurable tragedy.

[4]

The sentencing judge erred in placing insufficient weight on the primary
    sentencing principles of general deterrence and denunciation. The trial judge
    also erred in using the fact of the appellants intoxication as a mitigating
    factor, when in fact it was a significant aggravating factor in this case.

[5]

There were numerous aggravating factors involved, including the multiple
    shots fired and the inherent dangerousness of the respondents conduct, which
    could have had catastrophic results.

[6]

In these circumstances, a conditional discharge was not available.
    Although we are aware of the immigration implications arising from a conviction
    in this matter, these consequences cannot operate to allow the imposition of an
    unfit sentence:
R. v. Pham,
2013 SCC 15, at paras. 14, 18.

[7]

In light of these reasons, it is unnecessary to address the other
    grounds of appeal.

[8]

The appeal is allowed.

[9]

Having regard to the trial judges finding that 5.5 months was served in
    pre-sentence custody, a suspended sentence is appropriate. We substitute the conditional
    discharge with a conviction and impose a suspended sentence. The terms of
    probation and other orders imposed by the trial judge remain unchanged.

Paul Rouleau J.A.
Grant Huscroft J.A.
Fairburn J.A.


