R. v. Benoit-Fiorita, 2021 BCPC 172

Citation: R. v. Benoit-Fiorita 2021 BCPC 172 Date: 20210618 File Nos: 181273-1, 181274-1, 181758-1, 181899-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOEY BENOIT-FIORITA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY (Via Videoconference) Counsel for the Crown: J. Byrne, by videoconference Counsel for the Accused: B. Movassaghi, by video conference Place of Hearing: Victoria , B.C. Date of Hearing: June 18, 2021 Date of Judgment: June 18, 2021

Introduction [ 1 ] THE COURT: Dealing now with these matters before me. Joey Benoit-Fiorita is before this Court. He has entered three guilty pleas with respect to three separate informations. I will deal with them in the following fashion and I am going to change slightly the order of arraignment and put each in the order of the swearing of the informations. So I am going to deal -- [ 2 ] CNSL B. MOVASSAGHI: Your Honour, there is a lot of background noise coming. I do not know if that is from VIRCC. If whoever is not muted, can mute. [ 3 ] THE CLERK: Your Honour, this is the court clerk.

I can advise you this is coming from the -- the jail and there is nothing they can do about it, unfortunately. [ 4 ] CNSL B. MOVASSAGHI: Well, if it is the jail, then it is what it is. [ 5 ] THE COURT: All right. Perhaps if Madam Sheriff in our courtroom in Victoria can just inform the sheriffs at Vancouver Island Regional Correctional Centre that we are hearing a lot so they may want to carry on their discussions away from that video room if that is possible. [ 6 ] I will return to the sentencing. I am going to deal, first of all, with Information 181758-1.

This is an allegation that Joey Benoit- Fiorita (hereinafter sometimes referred to as the “Offender”) on or about the 27th of January, 2021, at or near Saanich in the Province of British Columbia did knowingly utter a threat to Mirko Peter Filipovic to cause death or bodily harm to him contrary to s. 264.1(1). That information was sworn on March 4th, 2021.

The Offender has entered a guilty plea to that offence. [ 7 ] The second in time of swearing is Information 181274-1 sworn March 9th, 2021; it alleges that the Offender on or about the 25th of February, 2021, at or near Saanich in the Province of British Columbia, did knowingly utter a threat to David Caleb Brereton to cause death or bodily harm to him and members of his family. That is an offence contrary to s. 264.1(1) of the Criminal Code . A guilty plea has been entered. [ 8 ] Following that guilty plea, there is a third and final guilty plea. This is on an information, 181899-1. It is sworn March 31st, 2021.

It is a further allegation against Mr. Benoit-Fiorita, that he from the 3rd of February, 2021, to the 4th of February, 2021, inclusive, at or near Saanich in the Province of British Columbia, did knowingly utter threats to Raj Sidhu and Richard Bown to cause death or bodily harm to them or members of their families, again, an offence contrary to s. 264.1(1) of the Criminal Code . Circumstances of the Offences [ 9 ] Each of the complainants are correctional officers at Vancouver Island Regional Correctional Centre.

The Offender has been in custody in that facility since there were charges laid against, as I understand it, back in January of 2021. Those charges arose out of complaints of serious domestic violence. As it turned out, the complainant in those matters, whom I understand to be Mr. Benoit- Fiorita's present domestic partner, withdrew her complaints and indicated that she was resiling from her original reports and statements made to the authorities with respect to those domestic violence matters.

Accordingly, the Crown did not proceed with those charges and, as I understand it, the charges were stayed. [ 10 ] However, by the time that occurred, the Offender had been in custody for an extended period of time. In fact, up to present date, it is agreed that from the swearing of the first information being on March the 4th, 2021, that the Offender has actually accumulated a total of 106 actual days in custody. With time-and-a-half of enhanced credit, this means he would be entitled to 160 days of total credit for time served.

It is also indicated that prior to that March 4th, 2021 date, he had something in the nature of another month and 10 days in custody, being the time that he was being detained on the subsequently stayed domestically violence charges. I am being asked by defence to take that time into consideration when determining what a fit sentence is with respect to the matters before me. [ 11 ] Again, turning to the circumstances surrounding the three offences before this court, each of the offences has a similar background.

These were all on separate occasions when the Offender, while being held in custody, came into contact with the complainant Corrections officers at Vancouver Island Regional Correctional Centre. This was not the first time that the Offender has been in that custodial facility. I get the impression from both the submissions made by Crown, as well as hearing from the Offender directly, that he has been in a relatively high conflict position with a number of the individuals with whom he comes into contact and who are serving in the role of guards at the institution. In fact, I have heard lengthy submissions from Mr.

Benoit-Fiorita to the effect that it has been a very trying and challenging time for him; he says that relates to both his mental condition as well as his physical situation. [ 12 ] However, with respect to the matters before me, the nature of the threats that were made were very significant. They were very personalized. They were directed at each of the individual complainants, threatening very significant and graphic harm to each of them. Also, in the cases of where the threats were made to include the complainants’ family members, those were again, not only graphic, but also highly disturbing.

These threats cannot be characterized as being made simply as passing comments. These fall within the very high range of significant and specifically targeted threats to cause either death and/or bodily harm, to either the individual complainants or their families or both, including threats of decapitation. [ 13 ] I am mindful that all this occurred in the custodial setting in which Mr. Benoit-Fiorita found himself; for a number of reasons he was obviously not coping well with his incarceration.

But these threats all seem part of a pattern that developed during his periods of incarceration, first on the domestic violence charges, which were eventually stayed, and then continuing thereafter with respect to the matters that are subject of these present charges. Circumstances of the Offender [ 14 ] As I indicated, this is not Mr. Benoit-Fiorita's first engagement with the Vancouver Island Regional Correctional Centre. I take it

that he was there for a significant period of time on matters that came before the Honourable Judge D.M. McKimm on June 14, 2019. That decision of R. v. Benoit-Fiorita , 2019 BCPC 121 , [2019] B.C.J.

No. 1109, dealt with the sentencing of the Offender on some very serious firearms offences (“Judge McKimm’s Decision”). [ 15 ] Although the circumstances of those offences are not necessarily relevant to the matters before me, it is useful to examine that earlier decision because of the reliance placed by defence on Judge McKimm's Decision, and with specific reference to the review and consideration of the details of Offender’s difficult personal background and his situation when he was growing up.

I do note that the serious offences for which the Offender was being sentenced by Judge McKimm arose out of incidences on July 26 or 27, 2017. First was the Offender possessing a prohibited firearm knowing that he was not the holder of a licence for which he could possess, being an offence under s. 929(1) of the Criminal Code ; the second was having in his possession a firearm for a purpose dangerous to the public peace contrary to s. 80(1) of the Criminal Code ; third was breaking and entering into a commercial premises and committing an indictable offence therein, to wit, theft, contrary to s. 348(1) (

b) of the Criminal Code ; and fourth, possessing a Winchester 12 gauge shotgun while prohibited from doing so contrary to s. 117.01(1) of the Criminal Code . [ 16 ] Judge McKimm, in a thoughtful decision, in which he applied various relevant principles of sentencing, ended up sentencing the Offender as follows: on the charge of knowingly possessing a firearm without a licence to two years; on the possession of a weapon for a purpose dangerous to the public, two years concurrent; on the break and enter, one-year consecutive to all other sentences; and then on the charge of possession of a firearm in contravention of a court order, 12 months consecutive to all the other sentences.

He was then placed on a 12-month probation order once he had served those particular sentences. [ 17 ] The resulting sentence was a custodial sentence of 1,460 days in custody. He got credit for 620 days in custody and was entitled to a total of 930 days' credit for a total sentence of new days of 530 days. [ 18 ] I have also taken the time to review Judge McKimm’s Decision because of the reliance that is being placed in the present matter upon the sentencing record of the Offender.

That criminal record is detailed in Judge McKimm's Decision at paragraph 14; in that particular paragraph, the court says as follows, and I quote: As indicated above, over the course of the next 10 years, Mr. Benoit-Fiorita accumulated a serious criminal record. He acquired a relatively minor criminal record at the age of 17, for which he received probation for 15 months.

Shortly after turning 19, he acquired the following: June 5, 2009 Robbery 344(1)(b) (x 2) 2 years in custody Possession of firearm contrary to a prohibition (x2) 2 years in custody Commit an indictable offence while masked 1 year in custody Careless use of a firearm (x2) 1 year in custody Use of an imitation firearm in the commission of an indictable offence (x2) 1 year consecutive Break and enter and steal a firearm 5 years Possession of a loaded and prohibited or restricted firearm 5 years Mischief under $5,000 6 months Possession of Stolen property 6 months Possession of Narcotics (Schedule I) 6 months Possession of Narcotics (Schedule II) 30 days Breach of Court Order (x2) 30 days September 22, 2011 Assault Peace Officer in the execution of his duty 12 months consecutive to time serving Release on Parole December 18, 2014 Breach of Parole Recommitted [ 19 ] Judge McKimm then goes on to note that after arriving in British Columbia following his release from custody in eastern Canada, by 2016, the Offender’s criminal activity had recommenced.

At paragraph 15 of those reasons, the following charges are clearly noted: April 27, 2016 Trespassing at night 30 days Possession of a Controlled Substance 30 days and Probation Order for 9 months Breach of undertaking 13 days consecutive Possession of a Controlled Substance 30 days consecutive August 17, 2018 Fraud under $5,000 60 days Fraud under $5,000 60 days consecutive Using a formed instrument 60 days consecutive Breach of undertaking 7 days consecutive

[ 20 ] It is certainly fair to comment that this is a very challenging and a serious criminal record which this young man has accumulated since an early age. He is presently only 32 years of age. [ 21 ] The following observations are made by Judge McKimm when dealing with the antecedents of this Offender. Judge McKimm states as follows: [11] Mr. Benoit-Fiorita is 28 years of age and was born and raised in Montréal, Québec. To the age of six, he was raised in a toxic environment by parents who were engrossed in a highly acrimonious separation.

He was regularly physically abused and recalls resenting the fact that he was forced to have the parents he did. At the age of six, he was given up by both of his parents to the foster system. This created further resentment and anger and he began to lash out within his foster placement. Between the ages of seven and 11, his parents were utterly absent from his life. He was never brought home for holidays and celebrations and was regularly the only person left in the foster placement.

He moved from placement to placement until finally ending up in a secure placement which he described as a youth detention facility. [12] At the age of 11, his father did return and take him back into his custody and subjected him to ongoing serious physical abuse. After a few years with his father, he fled to his mother’s house and after a few months was thrown from his mother’s house and returned to the juvenile detention facility. [13] At the age of 18, he had aged out of the foster care system.

He describes that he had no meaningful life skills and he created no bonds or connection or guidance to allow him to commence life as an adult. He quickly turned to crime. Over the next several years he accumulated a significant criminal record. [ 22 ] The “efforts at rehabilitation” by the Offender are also further expanded upon in Judge McKimm’s Decision.

At paragraphs 18, 19, and 20, Judge McKimm describes a number of the courses regarding substance abuse management, anger management and the commencement of a course of intensive therapy while at the custodial institution. [ 23 ] Judge McKimm notes that very positive letters of reference, on behalf of the Offender, were provided by addictions counsellors at the institution that spoke “glowingly about his efforts to overcome his addictions." A letter referenced by Judge McKimm indicated that the Offender had "changed his mindset immensely since being here," and goes on to suggest that "he has a lot of changes still to make and a long road ahead of him" but the Offender was now thinking seriously about his behaviour in a very significant fashion. [ 24 ] Judge McKimm's Decision also points out that there was an intention on the part of the Offender to continue his significant efforts at rehabilitation and with a suggestion that he was a candidate to attend the highly recognized rehabilitative institution known as the Therapeutic Recovery Community.

There is nothing before me to indicate if that such attendance ever occurred. However, the concluding remarks of Judge McKimm are noteworthy. He says at paragraph 21 as follows: I’m satisfied based on the submissions and letters of support that Mr. Benoit-Fiorita has indeed made significant strides in advancing his recovery and has a serious intention to continue that work. In my view rehabilitation is, therefore, a live consideration in crafting a fit and proper sentence. [ 25 ] Hence habilitation was part of the basis upon which the Mr.

Benoit-Fiorita’s sentences were crafted by Judge McKimm. [ 26 ] I note that I have submissions from defence counsel, Mr. Movassaghi, that Mr. Benoit-Fiorita does identify as Métis, This heritage is on his mother's side. At the outset of this sentencing hearing, I did obtain a waiver from Mr. Benoit-Fiorita regarding the preparation of a formal Gladue report on his behalf. Also, I do not have a presentence before me; accordingly, there is no “ Gladue component” for me to review.

I simply have the very brief amount of information contained within the Honourable Judge McKimm’s Decision that is available to me in order to understand this background. That is confined to the passing comments of Judge McKimm in the final sentence of paragraph 35 of his reasons, wherein there is the indication that Gladue considerations were applicable to Mr. Benoit-Fiorita. Therefor I must presume that these were taken into account by Judge McKimm in his sentencing analysis.

Crown Sentencing Position [ 27 ] Crown initially sought what would be tantamount to a global sentence of between 12 and 15 months of custodial time. However, that was before a guilty plea on an assault allegation of a corrections officer was struck at the request of Crown, that being so because of some circumstances presented in the Offender’s lengthy direct submissions to the Court. [ 28 ] Crown then indicated that the sentence on a global basis for the Offender should be somewhere between nine to 12 months for the serious threats that were uttered to the prison authorities.

From that amount of time would be deducted the available time of 160 days of enhanced credit. Defence Position on Sentencing [ 29 ] Defence's position on sentencing is based on a submission to this court that it should pay significant attention to and have considerable regard for the time previously spent by the Offender in custody, while on remand awaiting trial on the domestic assault charges.

As noted above, the complainant recanted and those charges were then stayed by Crown. [ 30 ] I take it that defence does agree with Crown’s position that the earliest date for the formal calculation of available pre-sentence custody credits, is March 4th, 2021. That is the date on Information 181758-1 and therefore it is from that date that the Offender was being held in custody on that offence, which is presently before this court [see: Criminal Code section 719 (3) ].

But defence says that given the difficult personal circumstances of the Offender and given the fact that he has spent a significant period of time in custody, both on the stayed charges and then on the present charges, with much of it spent either in isolation or under more restrictive conditions, because of the Offender’s various conflict situations experienced while in custody, all of that time in custody should be taken into account in some fashion in crafting a fit sentence.

[ 31 ] Ultimately, I understand defence's sentencing position, on a global basis, is that these matters should be resolved by way of a time served sentence. As I further understand it, there is no issue with Crown’s proposal for a two-year probation order without any reporting conditions, and thus essentially with terms that will provide for no contact with the complainants in these matters. Purposes, Objectives, and Principles of Sentencing [ 32 ] The purposes and principles of sentencing are found in s. 718 to 718.2 of the Criminal Code . These sections codify those principles and state the intention and rationale for imposing particular sentences.

Section 718 outlines the fundamental purpose of sentencing as: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 33 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the defendant's responsibility.

Section 718.2 under the heading of "Other sentencing principles," indicates in part that the court must take into account the principles of increasing or reducing a sentence for any relevant aggravating or mitigating circumstance relating to the offence or the offender; the listed statutory aggravating factors do not apply in this case. Subparagraph (

b) of that same

section says that: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances … Then further under s-s. (

c) it says that: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh … Then the remaining provisions found in paragraphs sub (

d) and sub (

e) indicate that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 34 ] It is noteworthy that with respect to all of these offences, Crown has proceeded summarily such that the maximum sentence that can be imposed, is two years less a day on each of the offences.

Case Authorities [ 35 ] No case authorities have been presented for consideration by this court with respect to these matters, other than Judge McKimm’s Decision. Aggravating Factors [ 36 ] The aggravating factors in this case include: a. the very significant nature of these threats that were made to each of the complainants and the serious violence that was contained within those threats; b. the fact that those threats were made to individuals who were conducting their duties as Corrections officers. c.

I also find it aggravating that in addition to directing threats at the Corrections officers, the Offender then extended the threats in graphic and disturbing terms and thereby threaten the safety of the family members of those Corrections officers. [ 37 ] The mitigating factors are as follows: a. I find it mitigating that the Offender has entered guilty pleas with respect to these three offences before the court. b.

I also accept it as mitigating, and as pointed out by defence counsel, that except for charges laid and then subsequently stayed, since the Offender’s sentencing by Judge McKimm there have been no further substantive offences. c. I also do take into account that the Offender is apparently in a stable relationship with a partner who, as I understand it, was listening during part of these sentencing proceedings. d. I also understand and take into account the fact that that his partner is apparently suffering a significant health issue and that it is the

wish of Mr. Benoit-Fiorita to be released at the earliest opportunity in order that he can provide care for her. [ 38 ] I also find it mitigating that Mr. Benoit-Fiorita comes from an absolutely horrendous family background and he has endured significant setbacks in his life. It may be that there are operative Gladue factors.

According to Judge McKimm's decision, he is an individual who has been neglected, left on his own, has had little in the way of contact with positive influences in his life, but he now appears to have found some stability through his new relationship. [ 39 ] I do not have anything in front of me that indicates genuine remorse on the part of Mr. Benoit-Fiorita, for consideration as a mitigating factor. In fact, what I really have, through his own lengthy direct submissions to the Court, is a portrayal of himself as the real victim in all these circumstances.

He says that he was under great pressure and stress and subject to what he described as, constant harassment both mentally and physically while in custody. This, he says, resulted in him committing these uttering offences to the complainants. That said, for him to have extended his threats to the family members of the complainants, in my view raises some issues of significant concern about the Offender’s insight. Analysis [ 40 ] I take into account all of the circumstances of the Offender, and specifically both the aggravating and mitigating circumstances.

I am of the view that defence's submissions that this disposition should be dealt with on a time-served sentence does not result in a fit sentence. The Offender in this case has dealt with his ongoing anger issues in the most inappropriate manner, even given the challenging circumstances of being held in custody for a lengthy period of time. The factors that Judge McKimm took into account, based on the submissions he received, were to the effect that the Offender had dealt with and was continuing with anger management counselling; anger still appears to be an unresolved issue for the Offender.

Anger is one thing, but the nature of these very significant threats is a completely other matter that must be reflected in the sentencing of the Offender. [ 41 ] Accordingly, I think that there has to be both denunciation and deterrence appropriate to the nature of these offences as an important principle of sentencing in this case. Having said that, I also am mindful that we have before us a young man who has a number of challenges and who certainly has made an indication of his intention to move back into, and as I take it, to assume a much more productive role in society.

Sentence Imposed [ 42 ] Based upon all of foregoing, and mindful of the additional dead time spent but not given any formal credit for it, I am of the view that the total sentence should be nine months' custody. I am going to equate that to 270 days. From that 270 days, I am going to give him a total of 160 days of credit which means a remaining sentence of 111 days, by my calculation -- or, sorry, 110 days by my calculation. Does everyone agree with that arithmetic? [ 43 ] CNSL B. MOVASSAGHI: Two seventy less 160, yes, 110. [ 44 ] THE COURT: One hundred ten days. All right, and the -- [ 45 ] CNSL B.

MOVASSAGHI: Your Honour, sorry to interrupt. With respect to the probation, I appreciate the no-contacts. If there could be -- if there is incidental contact while he is at VIRCC, and I know my friend has said that Corrections have tried to make it so that these officers do not deal with Mr. Benoit-Fiorita. He has told me otherwise, that he has [indiscernible/videoconference]. I just -- [ 46 ] THE ACCUSED: [Indiscernible/videoconference]. [ 47 ] THE COURT: All right. Obviously, incidental contact is one thing. Verbal exchanges and threats is another.

So I am prepared to try to adapt the language to reflect that possible incidental contact. [ 48 ] I am going to allocate the sentence as follows. That sentence will be for each of the offences, but the sentences are to be served on a concurrent basis. I am going to attach the probation order for two years to all of the offences. [ 49 ] The terms and conditions will be as follows, sir. I want you to listen carefully to this because I am going to have to ask you if you heard them and understand them.

Do you understand that, sir? [ 50 ] THE ACCUSED: Yes. [ 51 ] THE COURT: Thank you. [ 52 ] So I will use the pick list conditions. 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court in advance of any change of name or address, and promptly notify the court of any change of employment or occupation. [ 53 ] The next condition will be the no contact and communication provision and that will be in the following terms, 2002: you must have no contact or communication directly or indirectly with any of, and it will be: Raj Sidhu, Richard Brown, Mirko Peter Filipovic, and David Caleb Brereton -- [ 54 ] CNSL J.

BYRNE: And, Your Honour, I am sorry, there may be a typo, but the one correctional officer's name is Richard Bown, B-o-w-n, without the R. [ 55 ] THE COURT: Oh, on which information is that? [ 56 ] CNSL J. BYRNE: The uttering threats -- [ 57 ] THE COURT: Oh, it is shown as --

[ 58 ] CNSL J. BYRNE: -- on 181899. [ 59 ] THE COURT: It is shown as B-o-w-n. Bown, is that how it is pronounced, or Bown? [ 60 ] CNSL J. BYRNE: Bown, yes. [ 61 ] THE COURT: B-o-w-n? [ 62 ] CNSL J. BYRNE: Yes. [ 63 ] THE COURT: Thank you. [ 64 ] So that will be that will be the no contact provision.

The exceptions are as follows: you may have incidental contact or communication while at Vancouver Island Regional Correction Centre in the course of the discharge in the duties of any of…, and then the names of the individuals will be repeated again, being Raj Sidhu, Richard Bown, Mirko Peter Filipovic, David Caleb Brereton. [ 65 ] Are you satisfied with that wording, Mr. Movassaghi [indiscernible/videoconference]? [ 66 ] CNSL B. MOVASSAGHI: Yes, thank you, Your Honour. [ 67 ] THE COURT: Thank you, and then there will be the no-go provision.

You must not go to any place where any of the above individuals live. [ 68 ] Are you satisfied with that, Madam Crown? [ 69 ] CNSL J. BYRNE: Yes, that is fine, thank you. [ 70 ] THE COURT: All right. If you see them, you must leave their presence immediately without any words or gestures. [ 71 ] Satisfied with that? [ 72 ] CNSL J. BYRNE: That is fine, thank you, Your Honour. [ 73 ] THE COURT: Thank you. So I take it that those are all of the conditions that are being sought. I think Crown was also seeking another order. [ 74 ] CNSL J.

BYRNE: I am seeking a 743.21 order. [ 75 ] THE COURT: That is while he is in custody, is that right? [ 76 ] CNSL J. BYRNE: While he is serving a sentence of imprisonment, there should be no contact with these correctional officers except for any incidental contact will at VIRCC. [ 77 ] THE COURT: Yes, all right. Mr. Movassaghi, any issue with respect to that? [ 78 ] CNSL B. MOVASSAGHI: I do think it might be a bit excessive.

If he is -- if he is threatening them again, that is going to be a standalone charge in and or itself, but I mean it could be where a conversation may be necessary and then at what point does that become a breach or does not become a breach? [ 79 ] THE COURT: Well, I think the way we have specified it on the first no contact and communication order addresses that concern, does it not? [ 80 ] CNSL B. MOVASSAGHI: Well, the probation order -- oh, yes. [ 81 ] THE COURT: Yes. [ 82 ] CNSL B. MOVASSAGHI: So if it is going to be verbatim, I -- [ 83 ] THE COURT: It is in the probation order.

So -- but, also, he is not to be having any contact or communication with these individuals except in the course of them performing their duties while at Vancouver Island Regional Correctional Centre. In other words, he is not to be engaging them in conversation. If they engage him in conversation as part of the discharge of their duties, then that is fine, but I think you need that exception to the order under

section -- I had it in front of me here. [ 84 ] CNSL B. MOVASSAGHI: 743 point -- [ 85 ] THE COURT: Yes, 743.21. So have I provided the adequate exception to that provision, is everyone content with that? [ 86 ] CNSL B. MOVASSAGHI: Yes, thank you, Your Honour. [ 87 ] THE COURT: Madam Crown, you are satisfied with that? [ 88 ] CNSL J. BYRNE: Yes, I am, thank you, Your Honour. [ 89 ] THE COURT: All right. I think that then brings us down to the ancillary orders. Has he provided a DNA order in the past, Mr. Movassaghi? I take it with some of those serious charges, he must have.

[ 90 ] CNSL B. MOVASSAGHI: Yes, I think there would have been in Judge McKimm's order, as well. Let me see if I can -- yes, Judge McKimm did order it in his decision as at paragraph 53," There will be a discretionary DNA order." [ 91 ] THE COURT: All right. Although I think it is redundant, I will make the order in this case. I think, given the nature of these offences and the past record, I am going to make the order. It is discretionary on the secondary designated offences, but I will make the order.

So a further DNA sample may be required, but I will leave it up to the authorities as to whether or not they proceed with that. [ 92 ] I believe he is already under a firearms prohibition, is he not, under

section -- does he not have a lifetime ban on firearms or am I mistaken? [ 93 ] CNSL B. MOVASSAGHI: Oh, "There will be a mandatory lifetime prohibition from possessing any firearms pursuant to

section 109 of the Criminal Code ." Yes, that was in Judge McKimm's decision, as well. [ 94 ] THE COURT: All right. Do I need to repeat that on this sentence? [ 95 ] CNSL J. BYRNE: It is -- it is not mandatory, Your Honour. [ 96 ] THE COURT: All right. I think he is -- he is already bound by one. I am not going to add to the paperwork. All right, so -- [ 97 ] CNSL B. MOVASSAGHI: Oh, victim fine surcharge, Your Honour, given his current circumstances -- [ 98 ] THE COURT: I am going to waive the victim fine surcharges, but I want to make sure that, Mr.

Benoit-Fiorita, you heard all of those conditions, sir, with respect to your probation. It is non-reporting, but do you understand all of those orders that I have made? [ 99 ] THE ACCUSED: I do. [ 100 ] THE COURT: Okay, and are you agreeing to follow those orders? [ 101 ] THE ACCUSED: I agree to follow those orders. [ 102 ] THE COURT: Thank you, and you understand that, if you fail to do so, you can be charged with a breach of those orders and you could be arrested and detained in custody.

Do you understand that? [ 103 ] THE ACCUSED: I do understand, yes. [ 104 ] THE COURT: Okay, I am content to waive his signature on any required documentation relating to both the sentence as well as the probation order. However, Mr. Movassaghi, I take it that you will be receiving a copy in some fashion, and getting that into the hands of your client? [ 105 ] CNSL B. MOVASSAGHI: Yes, please, and thank you. I believe the registry does that [indiscernible/videoconference]. [ 106 ] THE COURT: Okay, is there anything else we need to deal with respect to this?

You have already made the direction with respect to the remaining outstanding -- [ 107 ] CNSL J. BYRNE: It looks like Mr. Benoit-Fiorita wants to say something. [ 108 ] THE COURT: Yes, sir. [ 109 ] THE ACCUSED: Your Honour, so am I going to be able to go for -- for bail after like -- because the -- [ 110 ] CNSL B. MOVASSAGHI: Joey, yes, Joey, talk to me about that. I will explain the bail -- [ 111 ] THE ACCUSED: Oh, okay. [ 112 ] CNSL B.

MOVASSAGHI: -- process to you. [ 113 ] THE COURT: Okay, I think I am -- [ 114 ] THE ACCUSED: Okay, thank you. [ 115 ] THE COURT: Okay, I am not the appropriate person for you to be speaking to- you should be speaking to Mr. Movassaghi about that, please. [ 116 ] THE ACCUSED: Okay, Your Honour, I'm sorry. [ 117 ] THE COURT: All right, anything further? [ 118 ] CNSL J. BYRNE: No, thank you, Your Honour. [ 119 ] CNSL B. MOVASSAGHI: No, nothing, Your Honour. [ 120 ] THE COURT: Thank you, we will stand down. (REASONS FOR SENTENCE CONCLUDED)