



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Claros, 2019 ONCA 626

DATE: 20190724

DOCKET: C65699

Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Christopher Marcelo Claros

Respondent

Linda Shin, for the appellant

Delmar Doucette, for the respondent

Heard: June 7, 2019

On appeal from the sentence imposed by Justice Frederic
    M. Campling of the Ontario Court of Justice on June 29, 2018.

Paciocco J.A.:

[1]

The Crown seeks leave to challenge the sentence imposed on Christopher
    Claros for six offences he committed in the course of shooting a drug dealer on
    a Hamilton street.

[2]

The trial judge attempted to impose a total sentence of five years in
    prison for all six offences, before taking into account pre-sentence custody.
    He sought to achieve this by imposing a sentence of five years imprisonment on the
    offence of discharging a firearm with intent to wound, contrary to
Criminal
    Code
,

s. 244(2) [the discharging offence], and then imposing
    concurrent sentences on the other five offences.

[3]

The concurrent sentences he imposed for the five other offences consist
    of:

1)

Possession of a weapon
    for the purpose of committing an offence, contrary to
Criminal Code
,
    s. 88(2) (2 years);

2)

Possession
    of a firearm without a licence contrary to
Criminal Code
, s. 92(3) (2
    years);

3)

Unauthorized
    possession of a firearm in a motor vehicle, contrary to
Criminal Code
,
    s. 94(2) (2 years);

4)

Aggravated
    assault, contrary to
Criminal Code
, s. 268(2) (3 years); and

5)

Possession of a
    firearm while prohibited, contrary to
Criminal Code
, s. 117.01(3) (2
    years).

[4]

The Crown contends that the total sentence the trial judge arrived at is
    unfit, and that the trial judge made other legal errors in sentencing Mr.
    Claros.

[5]

Mr. Claros concedes one of the alleged legal errors. Specifically, he
    agrees that the trial judge made mathematical errors that resulted in Mr.
    Claros receiving less than a sentence of five years imprisonment. For the
    discharging offence, the trial judge imposed an effective sentence of 3 years
    and 101 days in custody, after accounting for enhanced credit of 466 days for the
    pre-sentence custody or dead time Mr. Claros spent incarcerated on the Hamilton
    charges awaiting the completion of his trial and sentencing. The parties agreed
    that the correct amount of enhanced pre-sentence custody is 416 days, and that
    the trial judge also erred in quantifying the effective sentence. The actual
    effective sentence should have been 3 years and 314 days in custody, in order to
    achieve a total sentence of 5 years. Mr. Claros invited the court to leave the
    sentence undisturbed despite the difference of 213 days, because of the time
    that has passed.

[6]

In my view, we need not decide whether to fix this error, nor determine
    whether the sentence is unfit, because I agree with the Crown that the trial
    judge committed material legal errors. As a result, I would grant leave to
    appeal the sentence, set aside some of the sentences, and substitute sentences
    that will achieve a total sentence of eight years in custody.

[7]

Specifically, I would set aside the sentences imposed on the discharging
    offence and the possession of a firearm while prohibited offence. I would substitute
    a sentence on the discharging offence of seven years imprisonment, and I would
    substitute a custodial sentence of one year consecutive on the possession of a
    firearm while prohibited offence.

[8]

I would not disturb the other sentences imposed, other than the victim
    surcharges, which should also be set aside.

THE MATERIAL FACTS

[9]

On May 25, 2016, Mr. Claros had a mutual friend arrange a meeting with
    David Fafinski at 9:00 p.m. in Hamiltons east end. Mr. Fafinski was asked to
    bring $14,000 worth of cocaine to that liaison. Mr. Fafinski thought he was
    meeting the mutual friend when he showed up, but Mr. Claros was there instead.

[10]

At
    some point after encountering Mr. Claros, Mr. Fafinski attempted to flee. As he
    ran down a Hamilton street near an intersection, Mr. Claros shot him with a
    sawed-off shotgun. The shotgun was loaded with buck shot, not bird shot.

[11]

Mr.
    Fafinski was lucky. His lower extremities were sprayed and he was knocked down,
    but his injuries were not serious.

[12]

Immediately
    after the shooting, Mr. Claros fled. As a result, he was not arrested at the
    scene. That arrest happened two days later after he and his girlfriend, Halley
    MacPhee, tried to outrun the police in the car Ms. MacPhee was driving near
    Thunder Bay. The chase ended when Ms. MacPhee stopped to avoid a spike belt, and
    the pair was arrested.

[13]

During
    the police chase, Mr. Claros threw the shotgun out of the moving vehicle. It
    seems the pursuing officers did not see this happen. The shotgun was found on
    the side of the road by a concerned citizen who called the police. The
    recovered shotgun proved to have been stolen. It also proved to have Mr. Claross
    DNA on its surface. As a result, Mr. Claros was charged with firearms offences
    related solely to the Thunder Bay incident.

[14]

Mr.
    Claros pleaded guilty and was convicted of three of those Thunder Bay offences:
    (1) possession of a firearm while prohibited; (2) possession of a firearm
    obtained by crime, contrary to
Criminal Code
, s. 96(2); and (3)
    unauthorized possession of a firearm in a motor vehicle. Mr. Claros received a
    total sentence of two years in custody. After credit for 303 days of
    pre-sentence custody, Mr. Claross effective sentence was 14 months in custody.

[15]

Almost
    a month and a half later, Mr. Claros was charged separately with ten offences
    arising from the Hamilton shooting of Mr. Fafinski. The trial on those charges
    was not held until his Thunder Bay prison sentence expired. But, Mr. Claros was
    not released when he completed the Thunder Bay sentence. He was held on the
    Hamilton charges.

[16]

On
    January 26, 2018, Mr. Claros was convicted of the six Hamilton offences I have
    described above. He was sentenced on June 29, 2018. As indicated, the trial
    judge intended to impose a sentence of five years in custody before taking into
    account the dead time Mr. Claros served awaiting his trial and sentencing.

[17]

During
    the sentencing hearing, the trial Crown sought a sentence of ten years imprisonment
    on the Hamilton charges. In stark contrast, trial counsel for Mr. Claros sought
    a sentence of approximately three and a half years in custody, which would
    result in an effective sentence of time served.

[18]

Mr.
    Claross trial counsel made this submission notwithstanding that the
    discharging offence carried a mandatory minimum sentence of five years
    imprisonment in the case of a first offence. She argued that, based on the
    authority of
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, the
    trial judge was entitled to impose a total sentence below the mandatory minimum
    to remedy
Charter
disclosure breaches that had occurred. Specifically,
    it was not until the eve of the trial that significant, required disclosure was
    provided. Then a surveillance video and text messages between Mr. Claros and
    Ms. McPhee were disclosed only after the trial was underway. These
Charter
breaches resulted in two failed stay applications prior to sentencing.

[19]

Mr.
    Claross trial counsel maintained that when all of the circumstances were
    considered, this three and a half year sentence would be fit given the totality
    of the sentence Mr. Claros would serve for the Hamilton offences, coupled with
    the sentence he had already received for the directly related Thunder Bay offences.

[20]

She also
    urged that the usual practice of imposing a consecutive sentence for a possession
    of a firearm while prohibited offence should not be followed.

[21]

It
    is not in contest that the trial judge ultimately agreed with Mr. Claross
    counsel that a consecutive sentence should not be imposed for the possession of
    a firearm while prohibited offence. Instead, the trial judge imposed a
    concurrent sentence for that offence.

[22]

The
    parties also agree that the trial judge accepted the defence submission that
    the length of the Hamilton sentence should be reduced because of the Thunder
    Bay sentence Mr. Claros served on directly related charges. I will describe
    the trial judges reasoning in more detail shortly.

[23]

The
    parties disagree, however, over whether the trial judge gave Mr. Claros a
    sentencing reduction because of the
Charter
breaches, as his counsel
    requested. The Crown contends that the trial judge did not do so, but Mr.
    Claros urges that he did. I agree with Mr. Claros. The trial judge indeed gave
    a sentencing reduction for the
Charter
breaches.

[24]

To
    be sure, the trial judge did not identify the amount of the sentence reduction.
    But, in the course of sentencing, he reaffirmed that when he denied a stay of
    proceedings during trial, he was rather shocked by the shortcomings in
    disclosure and felt that there should be some remedy. He commented that of the
    two remedies he had been considering  either a costs award or a sentence
    reduction  a costs award would be pointless as Mr. Claros was defended on a legal
    aid certificate.

[25]

In
    his submissions, the trial Crown agreed that the trial judge was entitled to remedy
    the
Charter
breaches by reducing the sentence. He asked the trial
    judge not to do so, and argued that, in any case, this was not one of the
    exceptional cases recognised in
Nasogaluak
as justifying a sentence
    reduction below a mandatory minimum sentence.

[26]

The
    trial judge evidently agreed with the latter point, concluding that in this
    case, the five-year minimum is one that I think is justified. But, it is clear
    to me that he also acted on the trial Crowns concession that he could lower
    the sentence because of the
Charter
breaches. The trial judge said as
    much when he explained to Mr. Claros that [c]onsidering everything about what
    you did and about your circumstances, including the disclosure
Charter
breach[es], I do not think you deserve a sentence less than five years, after
    taking into account your dead time that you have accumulated since serving your
    Thunder Bay sentence.

[27]

In
    coming to the decision that a five year sentence was justified, the trial judge
    placed considerable emphasis on the time that Mr. Claros had already served for
    the related Thunder Bay offences. In the course of his reasons, he said:

You have served your prison sentence for those three offences
    that you pled-out to in Thunder Bay, and it was a substantial prison sentence,
    especially considering the credit you were given for your dead time. And two of
    the three charges are among the offences for which I have convicted you,
    namely, possessing the firearm in a motor vehicle, and possessing it contrary
    to a
Criminal Code
prohibition order.

The other thing that you pled to in Thunder Bay, possessing a
    firearm obtained by crime, was not among the charges here. I did not, as I
    recall, hear anything about it being a stolen firearm, although it probably
    was, if you pled guilty to that in Thunder Bay. The point, though, is that you
    have already done a fair bit of time for virtually some of the same things I
    convicted you of.

[28]

The
    trial judge did not settle on the five year sentence for these reasons alone. He
    also considered the circumstances of the offence and the offender.

[29]

He situated
    the seriousness of the offence, concluding that although shooting a gun with the
    intent to wound deserves a substantial prison sentence, this was not the most
    serious of gun offences, as Mr. Fafinski was not significantly wounded after
    being shot at some distance.

[30]

The
    trial judge expressed the view that the worst thing about the evening shooting
    was the risk to innocent people in the area, given the stores and apartment
    buildings at the intersection where the shooting occurred. But, he went on to
    note that the street was not a main artery, and the shotgun would only be
    likely to cause serious injury at close range.

[31]

The
    trial judge noted Mr. Claross personal circumstances without elaboration,
    beyond accepting the defence submission that Mr. Claross extensive criminal
    record was not generally for violent offences. He also said:

I take into account as well that although you do not get the
    benefit that someone pleading guilty would get, you did not testify in your own
    defence, you did not lie about anything or try to mislead me.

[32]

He
    then said:

If it were not for the time you have already done on Thunder
    Bay charges, your sentence on the discharging firearm with intent to wound
    charge, it will be something greater than the five-year minimum, and there
    would be a consecutive sentence on the charge of possessing the firearm while
    prohibited contrary to s. 117.01 of the
Criminal Code
.

However, because of those convictions and the time you have
    already served, it is my view that the minimum five years is appropriate and
    that the sentence for the s. 117.01 offence should be concurrent because you
    have already served a sentence for effectively the same thing.

[33]

The
    trial judge then noted that Mr. Claros had some success working a couple of
    jobs when living in Alberta, and that he was proud of certificates he earned
    when imprisoned. The trial judge then said, I am hopeful that you will go back
    to working and stay away from this kind of nonsense in the future.

ISSUES

[34]

The
    Crown on appeal has raised a number of issues for consideration, namely:

A.

Did
    the trial judge err in reducing the sentence because of the time Mr. Claros
    served in Thunder Bay?

B.

Did
    the trial judge err in imposing a concurrent sentence for the conviction of
    possession of a firearm while prohibited?

C.

Did
    the trial judge fail to consider relevant facts and consider irrelevant facts?

D.

Did
    the trial judge impose a demonstrably unfit sentence?

[35]

Mr.
    Claros does not concede any of these errors, but the parties are in agreement
    that two additional errors did occur.

[36]

They
    agree that the victim surcharges of $200 per conviction imposed by the trial
    judge must be set aside. Those orders subsequently proved to be unconstitutional
    while Mr. Claross appeal was still in the system.

[37]

As
    explained, the parties also agree that the trial judge miscalculated the
    sentence on the discharging offence.

[38]

As I
    have said, I need not address whether this error should be remedied because I
    would set aside that sentence in its entirety due to other material errors. As
    I will explain, I propose a substituted sentence, and in doing so have the
    benefit of agreement between the parties with respect to the credit for pre-sentence
    custody.

ANALYSIS

A.

The trial judge Erred in reducing the sentence for time served in
    tHUNDER BAY

[39]

The
    Crown argues that it was improper for the trial judge to even consider the time
    Mr. Claros spent in custody in Thunder Bay. Although I am of the view that the
    trial judge used the Thunder Bay time improperly, I do not share the Crowns
    view that the time Mr. Claros spent in custody on the Thunder Bay offences is
    entirely irrelevant in sentencing his Hamilton offences. In my view, the
    principle of totality applies. The problem here is that the trial judge did not
    apply the principle of totality. He improperly gave credit to Mr. Claros
    because he had already served time for distinct but related offences. In the
    result, he gave undue emphasis to the time served in Thunder Bay.

[40]

In
    recognizing that the principle of totality applies, I appreciate that this case
    does fall outside of the familiar application of that principle. The principle
    of totality ordinarily operates where an offender is sentenced at the same time
    for offences occurring at different times, or when an offender is being
    sentenced while still serving a sentence imposed for other offences.

[41]

However,
    Mr. Claross situation is analogous. At the time of the Hamilton sentencing he
    had served, without interruption, the Thunder Bay dead time, the Thunder Bay
    sentence, and then the Hamilton dead time. The Hamilton dead time was
    credited as part of the sentence for the discharging offence. In substance, the
    custody Mr. Claros would serve as the result of the Hamilton sentence began
    when the Thunder Bay sentence ended. The two sentences were therefore consecutive
    sentences with the meaning of
Criminal Code
, s. 718.2(c). They engaged
    the goals of the principle of totality, namely, to ensure that the aggregate
    sentence is just and appropriate and that the effect of the combined sentence
    is not crushing:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at para. 42.

[42]

As
    indicated, the difficulty here is that the trial judge did not apply totality
    considerations. These considerations include whether the combined sentences,
    calculated individually and sentenced consecutively, would be longer than
    required to serve the principles of sentencing, or whether the combined
    sentence would be apt to crush the offender by undermining the hope for
    rehabilitation. Instead, the trial judge appears to have treated the Thunder
    Bay time as if it was being served in connection with the Hamilton events. His
    reasoning improperly reflects double jeopardy overtones. Specifically, the
    trial judge spoke of the Thunder Bay sentence being for effectively or
    virtually the same thing as the Hamilton sentence.

[43]

First,
    Mr. Claros was not being sentenced in Hamilton for effectively or virtually the
    same thing he was sentenced for in Thunder Bay. The relevant offences were
    committed at different times and hundreds of miles apart, separately
    endangering two different communities. The fact that the same firearm was
    possessed and that the offences fell within a few days of each other does not
    undercut the fact that they were different crimes.

[44]

Second,
    and more importantly, apart from totality considerations, there is no
    principled reason for reducing Mr. Claross sentence because he had previously
    been sentenced for the same kind of conduct, or because the distinct offences
    involved the same weapon or were temporally linked. Put bluntly, there is no
    sentencing discount for repeated or temporally linked, but distinct, criminal
    behaviour.

[45]

Things
    may have been different if the length of the Hamilton sentence was materially
    influenced by specific deterrence considerations and a case could be made that
    Mr. Claross Thunder Bay sentence had already discouraged him from wanting to
    engage in similar conduct again, but this was not the trial judges reasoning.
    He improperly mitigated Mr. Claross Hamilton sentence simply because Mr.
    Claros had already served time for similar or linked, but distinct, behaviour.
    In my view, this was an error in principle.

[46]

I
    would therefore allow this ground of appeal.

B.

The Trial Judge erred In Imposing a concurrent sentence for the
    Possession of a firearm while Prohibited Offence

[47]

Relatedly,
    the trial judge sentenced Mr. Claros to two years in custody to be served
concurrently
for the possession of a firearm while
    prohibited offence. The trial judge recognized that ordinarily, possession of a
    firearm while prohibited offences are sentenced consecutively. Yet the trial
    judge chose to impose a concurrent sentence, because Mr. Claros had already served
    a sentence for effectively the same thing.

[48]

In
    my view, the trial judge erred in principle in imposing a concurrent sentence
    on this basis. Again, the offences committed were the same, but the crimes were
    different.

[49]

First,
    the Hamilton offence occurred when Mr. Claros took the shotgun to his meeting
    with Mr. Fafinski. The Thunder Bay offence arose from Mr. Claross possession
    of the shotgun in a motor vehicle two days later.

[50]

Second,
    the prohibition orders breached were different. The Hamilton offence was
    predicated on the violation of a 2013 prohibition order made in Calgary. The
    Thunder Bay offence was based on the contravention of a 2011 prohibition order
    made in Hamilton.

[51]

More
    importantly, the fact that two offences relating to the breach of a prohibition
    order occur in close succession, or even at the same time, is not a basis for
    imposing concurrent sentences. The principle that such offences should be
    served consecutively is intended to ensure that disregard of firearm
    prohibition orders, imposed in the interest of public safety, does not go
    unpunished. This principle also recognizes the fact that the breach of a
    prohibition order is different behaviour than the associate offences, engaging
    different social interests:
R. v. McCue
, 2012 ONCA 773, 299 O.A.C. 14,
    at paras. 21-22;
R. v. Addow
, 2014 ONSC 3225, at paras. 29-35;
R.
    v. Callaghan
, 2017 ONSC 1853, at para. 80, affd on different grounds,
    2018 ONCA 969; and by analogy,
R. v. Clouthier
, 2016 ONCA 197, 129
    O.R. (3d) 481, at paras. 55, 60.

[52]

Similarly,
    two or more separate violations of prohibition orders generally require their
    own distinct sentences, unless there is cogent reason to do otherwise given the
    principles and objectives of sentencing. As I have said, there is no bulk
    discount.

[53]

To
    be fair to the trial judge, there is no doubt that his decision to impose a
    concurrent sentence on this charge was influenced by totality considerations,
    and totality considerations can provide a cogent reason for imposing a
    concurrent sentence or adjusting the length of consecutive sentences:
Clouthier
,
    at paras. 55, 60;
McCue
, at para. 20. But as I have just explained, in
    coming to his conclusion the trial judge focused improperly on the similarity
    of the crimes. His reasons for imposing a concurrent sentence in this case were
    therefore not cogent given the principles or objectives of sentencing.

[54]

I
    would therefore allow this ground of appeal, as well.

C.

The Trial Judge Erred in Considering Irrelevant Facts

[55]

I
    agree with the Crown that the trial judge erred in principle in treating as
    mitigating the fact Mr. Claros did not testify in his own defence and did not
    lie about anything or try to mislead [the court]. The trial judge said he took
    this into account. He should not have done so.

[56]

First,
    it is improper to assign sentencing benefits because accused persons have
    foregone their right to testify in their own defence. This sends an
    inappropriate message.

[57]

With
    respect to the reliance on the absence of lies or misleading testimony, honesty
    with the court is something that is expected. It is a crime to do otherwise. The
    fact that an accused person has not misled the court should not mitigate or
    lower the sentence otherwise imposed.

[58]

I
    would therefore allow this ground of appeal, as well.

[59]

The
    Crown urged that the trial judge considered other irrelevant material and
    failed to consider relevant information. I will not address these arguments, given
    that the errors I have already identified will require that the sentences
    imposed by the trial judge on key offences be set aside, and these arguments do
    not raise broader issues of principle that would profit the profession to
    address.

[60]

Nor
    is it necessary that I address the general challenge made to the fitness of the
    sentence imposed.

D.

THE SUBSTITUTED SENTENCES

[61]

In
    my view, the legal errors the trial judge committed materially affected the
    sentence he imposed. Most obviously, the sentence for the possession of a
    firearm while prohibited offence should have been consecutive and not
    concurrent.

[62]

The legal
    errors also resulted in an improper and excessive reduction in the sentence
    imposed for the discharging offence. The trial judge himself said that if it
    had not been for the time already served in Thunder Bay, Mr. Claross sentence
    on that offence would have been something greater than the five-year minimum. I
    agree.

[63]

The
    offences Mr. Claros committed are extremely serious. The precise reason for the
    shooting was unknown, but Mr. Claros set up that meeting, linked to the promise
    of a drug deal, and for whatever reason, chose to bring an easily concealed and
    dangerous shotgun loaded with buck shot, by design capable of killing a deer.

[64]

In
    my view, the trial judge improperly minimized the danger that the shooting
    presented, not only to Mr. Fafinski but to other members of the public. This
    shooting took place in an east end Hamilton intersection with businesses and
    nearby apartment buildings and houses. One of those houses was struck with
    errant buck shot and sustained window damage. Not only did Mr. Claros discharge
    that firearm with intent to wound Mr. Fafinski as he fled, Mr. Claros successfully
    shot Mr. Fafinski, endangering his life in the process. The fact that Mr.
    Fafinski gained distance before the shot was fired does not reduce the danger
    that Mr. Claross conduct presented. Moreover, one bystander at a nearby
    apartment building fled inside when he heard the shot, fearing that he might be
    the target of the shooting.

[65]

There
    were no meaningful, mitigating circumstances relating to this brazen and
    disturbing offence.

[66]

In
    terms of the offender, Mr. Claros, although only approaching his 27th birthday
    at the time of the shooting, had already amassed a significant criminal record
    of more than 50 convictions in an unbroken string of offending. He has been in
    custody or under court orders since he was 12.

[67]

The
    fact that only one of his adult offences was a violent offence does temper the
    required sentence. However, his long list of driving offences reveals a history
    of disregard for the safety of others that is relevant in sentencing his
    reckless behaviour during the Hamilton shooting. His numerous breaches of court
    orders are also relevant to a proper sentence for breaching the firearm prohibition
    order.

[68]

While
    Mr. Claross exceedingly difficult family history and personal circumstances do
    reduce his level of moral fault, the sentencing objectives of deterrence and
    denunciation remain the paramount considerations.

[69]

Simply
    put, this was an aggravated form of the discharging offence, and the principles
    of sentencing, including the principle of proportionality, require an
    aggravated sentence.

[70]

I would
    not allow a sentence reduction for the
Charter
disclosure breaches
    that occurred. I appreciate that the trial Crown told the trial judge that he
    could properly order such a reduction. However, the legal foundation required
    for a sentence reduction was not present, and so the Crown concession should
    not have been acted upon.

[71]

Specifically,
    as Lebel J. pointed out in
Nasogaluak
, at para. 48, the ordinary
    principles of sentencing may support a sentencing reduction where a
Charter
violation bear[s] the necessary connection to the sentencing exercise. He
    said that to be a mitigating sentencing factor, the
Charter
breach
    must bear upon the circumstances of the offence or the offender.

[72]

In
    this case, I agree with the comment made by the trial judge during sentencing
    submissions that [i]t would seem difficult to call the
Charter
breach[es]
     a circumstance of the offence or the offender. The
Charter
breaches
    had nothing to do with the offence, and no persuasive theory has been offered
    by the defence as to how they impacted on the circumstances of the offender
    that are relevant in identifying a fit sentence.

[73]

Trial
    counsel did argue that the disclosure breaches delayed the trial, which prolonged
    pre-sentence custody and thereby warranted a sentencing reduction. In my view,
    it would not ordinarily be appropriate to grant a sentencing reduction on this
    basis where, as here, credit is already being given for pre-sentence custody.
    Things might be different where there is specific evidence that the
    pre-sentence custody caused by the
Charter
breaches was particularly
    onerous, but no such evidence was presented here.

[74]

Certainly,
    the trial judge did not explain how he ultimately came to the view that the
Charter
breaches related to the principles of sentencing. If he was going to grant
    a sentencing reduction for the
Charter
breaches, he should have done
    so and quantified a fit reduction.

[75]

For
    my part, I can see no connection between the
Charter
breaches and a
    fit sentence as there may have been, for example, had the
Charter
breaches
    deprived Mr. Claros of the opportunity to receive information that could
    reasonably have prompted the mitigating benefit of a guilty plea before trial. I
    see nothing comparable to the punitive effect that police brutality or an
    arbitrary detention might have on an offender. Here there is simply no link
    between the
Charter
breaches and the determination of a fit sentence. In
    my view, this is therefore not a case for a sentencing reduction.

[76]

I do
    believe, however, that the principle of totality should inform the appropriate
    sentence for this offence, given that between the Thunder Bay and Hamilton
    offences, Mr. Claros will be serving sequentially a sentence of two years
    followed by the total sentence imposed for the Hamilton offences. The ultimate
    sentence should not be rendered disproportionate nor should it be crushing for
    Mr. Claros, still a young man.

[77]

In
    all of the circumstances of this case, bearing in mind that Mr. Claros should receive
    a one year consecutive sentence for the possession of a firearm while
    prohibited offence, it is my view that the proper sentence for the discharging offence
    is seven years imprisonment. This produces a total sentence of eight years
    imprisonment for the Hamilton offences, an outcome that fits into the
    established sentencing range and is sufficient to respect the material
    principles and goals of sentencing.

DISPOSITION

[78]

I
    would therefore grant leave to appeal the sentence and allow the appeal.

[79]

I
    would set aside the sentence imposed on Mr. Claros by the trial judge for the discharging
    offence and substitute a sentence of 7 years imprisonment, resulting in an
    effective sentence of 5 years and 314 days after Mr. Claros is credited with 416
    days for pre-sentence custody.

[80]

I
    would also set aside the sentence imposed on the possession of a firearm while
    prohibited offence and substitute a sentence of one year in custody to be
    served consecutively.

[81]

Finally,
    I would allow the appeal from the victim surcharges, setting those orders
    aside.

[82]

I
    would not disturb the other features of the sentence imposed.

Released: DW July 24, 2019


David M. Paciocco J.A.

I agree. Alexandra Hoy
    A.C.J.O.
I agree. C.W. Hourigan J.A.


