R. v. Ishmael, 2014 ONCJ 136

ONTARIO COURT OF JUSTICE DATE: 2014·03-19 Citation: R. v. Ishmael , 2014 ONCJ 136 BETWEEN: HER MAJESTY THE QUEEN — AND — ABDI ISHMAEL Before Justice D. P. Cole Heard on February 7, March 19, 2014 Reasons for Sentence released on March 19, 2014 J. Cameron, M. Wilson .......................................................................... counsel for the Crown V.

Scaramuzza ............................................................. counsel for the accused Abdi Ishmael COLE J.: The Facts : [ 1 ] On February 27, 2013 members of the Toronto Police Service Gun and Gang Taskforce executed a search warrant at an apartment where the accused resided with his parents and his younger brother (against whom charges will be withdrawn once this matter has been concluded).

A prohibited firearm, a Taurus .45 calibre semi-automatic pistol, was discovered in a bedroom drawer; 10 rounds were in the magazine. [ 2 ] Though this accused was apparently not the target of the search warrant, he was immediately charged with numerous offences relating to this firearm and ammunition, and was detained in custody pending a bail hearing. The question of bail on these charges was deferred, no doubt in part because he was already on bail awaiting trial on a separate charge of robbery with a firearm, alleged to have been committed on December 3, 2010.

The accused was acquitted of the 2010 robbery charge by Borenstein J. on April 29, 2013, whereupon he launched a bail application in relation to these 2013 charges. This application was ultimately successful, as he was admitted to a “house arrest” bail on May 22, 2013, to which he was subject until the date he entered his plea of guilty (8 months 16 days).

As defence counsel strongly urges that his client be given credit for time spent in custody, on bail subject to “house arrest” and bail subject to a curfew going as far back as December 2010, I shall return to this later in these reasons. [ 3 ] I happened to be the judge who presided over a Judicial Pre-Trial in this matter on November 18, 2013, at which time, Crown counsel having indicated that the Crown would elect to proceed by indictment, dates for a two-day preliminary inquiry were set.

However, the accused changed his mind and appeared before me on February 7, 2014 (some weeks in advance of the scheduled preliminary inquiry dates), whereupon he entered pleas of guilty to charges of (

a) being in possession of a loaded prohibited firearm ( Code s. 95(1)), and (

b) being in possession of a firearm without a licence ( Code s. 92). The case was remanded to today’s date to allow time for the preparation of a pre-sentence report (PSR). The Positions of the Parties : (

a) Quantum of the Custodial Sentence to be Imposed

[4] As the Ontario Court of Appeal has recently struck down the minimum mandatory sentence of three years incarceration for as.95 offence, defence counsel’s position was that I should impose a custodial sentence of 18 months, less additional allowances for pre-trial custody and time spent subject to house arrest and on curfew, described infra. He argued that the recent Court of Appeal sentencingdecision in R. v. Smickle 2014 ONCA 49 , [2014] O.J. No. 258, where a sentence of two years less one day was held to be primafacie “proper”, could be distinguished on its facts.

He suggested that the facts in the case at bar were less egregious, in that the loadedhandgun was not being held by Mr. Ishmael at the time the police entered the apartment, nor was it even in plain view. Though defencecounsel did not use this precise language, I infer that his argument was that these two factors reduced the offender’s “moral culpability”or “moral blameworthiness” down to the 18-month level. [5] Crown counsel took the initial position that the thrust of the Court of Appeal’s reasoning in R. v.

Nur 2013 ONCA 677, theleading constitutional decision striking down minimum mandatory sentences for s. 95 offences, was to uphold the principle thatpenitentiary-length sentences should normally be imposed even for first offenders. She cited the Court’s decision in R. v. Smickle: “This court has clearly indicated that convictions under s.95 of the Criminal Code demand denunciatory sentences: see Smickle 2013ONCA 678 at para. 30; and R. v. Nur at para. 206. Most s.95 offences will attract a penitentiary term even for first offenders.” (para. 19;emphasis added). [6] Crown counsel did not accept that Mr.

Ishmael’s “moral blameworthiness” was less than that of Mr. Nur, who was carryinga loaded handgun in public in circumstances where it appeared somewhat likely that extreme violence was about to break out, had not thepolice intervened. Ms Cameron urged that I should give serious consideration to imposing a three-year sentence (as the Court of Appealsaid would have been appropriate in R. v. Nur). The only adjustment downwards that she was prepared to concede was that I shouldmake an allowance equivalent to the actual time spent in pre-trial custody. (

b) Allowance for Pre-Trial Custody [7] Counsel were in agreement as to the number of days credit that should be allowed here. In addition to the 85 days spent incustody before bail was granted on the charges I am now dealing with (February 27 – May 22, 2013), counsel also agreed that creditshould be granted for the 5 days spent in pre-trial custody until bail was granted on the original 2010 charges (December 3 – 7, 2010). [8] Counsel did not, however, agree as to the amount of credit that should be allowed. Crown counsel posited that credit shouldonly be given at the “normal” 1:1 ratio (Code s. 719(3)).

Without calling any evidence on point, defence counsel argued that “enhancedcredit” at the 1.5:1 ratio should be awarded (Code s. 719(3.1)), in order to reflect the conditions of pre-trial confinement experienced bythis offender, combined with his inability to earn remission during pre-trial confinement. (

c) Credit for Time Spent on Bail Subject to “House Arrest” [9] Defence counsel argued that allowance should be made, by way of reduction in the custodial sentence I determine should beimposed, for two periods of time spent on bail subject to house arrest. The first was the period from December 7, 2010 to June 27, 2011(6 months and 20 days) when the accused was first released from custody on bail for the 2010 robbery charge.

Counsel called noevidence as to the degree of restriction on his client’s liberty resulting from the conditions of release attached to that bail. [10] The second period of time spent on “house arrest” defence counsel wished me to consider was the period from May 22, 2013 toFebruary 7, 2014 (8 months 16 days) when the accused was first released from custody on bail for the charges I am now dealing with.

While no direct “evidence” was called on point, counsel submitted that this period of time was particularly onerous because the Ishmaelfamily “was torn apart” by the bail conditions imposed on this accused (as well as on his brother). He explained that when the twoIshmael sons were charged with these offences, their parents had to make a difficult decision, recognizing the reality that if bail were tobe granted, there would be clauses in each bail order prohibiting contact between the two brothers.

Thus, the parents elected to act assureties for the brother, while other community members agreed to act as sureties for this accused. More importantly, the prohibition oncontact meant that this accused has not been able to reside in the family home. However, counsel fairly conceded that (

a) there were norestrictions on this accused’s ability to see his parents other than in the family home, and (

b) though he has not been able to afford thefees to finish his 4-year degree in Health Management Studies, there was nothing in his bail conditions that precluded him fromcontinuing to attend university. [11] As previously indicated, Crown counsel argued that no credit should be given for either period of time spent on bail subject to“house arrest”.

She based her brief argument on this issue on the point that there was no evidence as to the intrusiveness of the bailconditions in relation to the first period of time, and that such evidence as existed (in relation to the second period of time) did not at alldemonstrate that the restrictions on the offender’s liberty were particularly onerous in real terms. (

d) Credit for Time Spent on Bail Subject to a Curfew [12] Defence counsel also argued that his client should also receive some credits for times spent on bail subject to a curfew. Afterperiods of time spent on bail subject to “house arrest” in relation to both the 2010 and 2013 charges, the respective bails were relaxed tothe extent that the “house arrest” restrictions were vacated and partially replaced by curfews.

These amounted to 6 months 27 days inrelation to the 2010 charges (June 27, 2011 – January 23, 2012), and to the period of time between the day the plea was entered inrelation to the 2013 charges (February 7, 2014) and today’s date. Counsel neither produced any evidence that the curfews had beenparticularly onerous, nor did he cite any case law indicating that I am authorized to consider curfew restrictions in reduction of thesentence to be imposed. (

e) Ancillary Orders [13] Counsel disagreed on the subject of whether probation should be imposed. As previously indicated, Crown counsel’s initialposition was that even after making an allowance for time actually spent in pre-trial custody, that would not lower the sentence to the

two-year or less range, a condition precedent to the availability of probation as an ancillary disposition ( Code s.731(b)). Should I come to the conclusion that a custodial sentence of two years or less should be imposed, Crown counsel alternatively submitted that a two-year period of probation should be imposed.

However, my notes do not reflect that I heard from Crown counsel what optional conditions she felt should be imposed. [ 14 ] Defence counsel submitted that, given his client’s lack of any previous record and his generally positive antecedents, probation is unnecessary to promote his rehabilitation. [ 15 ] Counsel were in agreement on other ancillary orders respecting the imposition of a weapons prohibition for a period of 15 years ( Code s.109), an order for the forfeiture and destruction of certain offence-related property, and an order for the taking of the offender’s DNA.

As these are not in dispute, I shall simply make these three ancillary orders at the end of these reasons. Analysis : (

a) Quantum of the Custodial Sentence to be Imposed [ 16 ] Earlier in these reasons I quoted a portion of the Court of Appeal’s sentencing judgment in R. v. Smickle .

Continuing directly on from the portion I have quoted, the Court went on to say: “Offences like that committed by the respondent, while somewhat less serious than the typical s.95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” (para. 19) From this I discern that it is the view of the Court of Appeal, that even if a loaded prohibited handgun is not being brandished in public (as in R. v.

Nur ), nevertheless an upper-end reformatory sentence should normally be imposed. [1] Given the recency and thoroughness of these decisions of a five-judge panel of the Court, I am bound to take them as my starting point.

I thus start from the proposition that an upper-end reformatory term should normally be imposed on a first offender found in possession of a single loaded prohibited firearm, other than in a public place. [ 17 ] Defence counsel understandably argues that because the handgun and ammunition which is the subject of the charges in the case at bar were concealed in a drawer at the time the officers executed the search warrant on the Ishmael home, the risk to the public (and to the police officers) was not as great as in R. v. Smickle . He urges that this should lead me to reduce the custodial sentence even further.

Counsel particularly directs me to the express finding of the Court of Appeal that Mr. Smickle was engaged in “conduct that posed a serious and immediate risk to others” (para. 30), whereas he argues that this factor was not as present in the case at bar. I have considered this submission at length, and while I acknowledge that some of the language in paras. 23-30 of the sentencing decision in R. v. Smickle might support such a distinction, I have come to the conclusion that this amounts to a distinction without a difference as applied to the facts in the case at bar.

As the Court of Appeal said in its constitutional reasoning in Smickle : “[Smickle] was not off by himself in some isolated forest playing with a fully loaded cocked handgun. He was in someone else’s apartment located in a high-rise apartment building.

It is fair to assume there were other people in the adjoining apartments who could have been at risk had the gun accidentally discharged .” (para. 28; emphasis added) To this I would add that, unlike the facts in Smickle , where the offender was apparently alone for some period of time before the police burst in, in this case three (or four – I was not told who else lived there other than the offender, his brother and parents) other family members lived in and regularly resorted to the apartment; a loaded handgun simply put in a drawer potentially presented a real danger to anyone who happened to open the drawer in the course of routine household management. (I note parenthetically that charges of careless storage of the handgun and ammunition were withdrawn as part of the plea agreement). [ 18 ] Furthermore, as I read R. v.

Nur , while the Court of Appeal struck down the overbreadth in Parliament’s wording of s.95, throughout the Court was strongly supportive of Parliament’s intent in passing legislation targeted at staunching gun crimes. In fact, in addition to commenting on the danger posed to others by Mr. Smickle, the Court expressly commented at several points in its judgment on his “moral culpability” (see paras. 26 and 29).

Absent highly exceptional – and usually tightly regulated - circumstances, as Parliament has legislated, a citizen has no authority to be in possession of a loaded prohibited handgun in any circumstances ( Smickle para. 29).

To my mind the fact that the offender in the case at bar did not have this lethal weapon in his hand at the time the police entered the apartment makes no significant difference in either his moral blameworthiness/culpability or the degree of risk posed to others either in the apartment or in adjacent apartments. [ 19 ] Having said this, I have come to the conclusion that there is an alternative basis on which Smickle can and should be rationally distinguished. In the case at bar, the offender entered a plea of guilty. Mr.

Smickle not only declined to enter a plea of guilty, but, as noted at several points in the Court of Appeal’s sentencing judgment, he obviously perjured himself through his testimony by denying that he was in possession of the illegal handgun. [ 20 ] The various Canadian sentencing texts virtually all acknowledge that the rationales for (usually) reducing sentences in guilty plea cases are often inconsistent and/or contradictory.

For example, Professor Manson writes: “The extent of the mitigating value is affected by the timing of the guilty plea: the earlier, the better.” But, somewhat confusingly, he then goes on to suggest that “[c]onvenience to the court by saving its time is not a reason for mitigation...a guilty plea must reflect more than time-saving to support mitigation.” (The Law of Sentencing, p. 133).

In referring to “disparate principles” in this area, Justice Renaud writes: “The question of the mitigating weight to be assigned to an offender who pleads guilty, or who does not, is quite controversial.” (Speaking to Sentence: A Practical Guide, p. 152). In an earlier edition of his text Mr.

Ruby writes: “The courts have not been precisely clear about why they are offering a discount for pleas of guilty; the failure to have a consistent rationale has resulted in decisions that to some extent are inconsistent and difficult to understand.” (Sentencing, 5 th ed., p. 224 ; these words have been omitted from the current (8 th ) edition). [ 21 ] Perhaps this lack of judicial consensus as to the rationale(

s) for reducing a sentence following a plea of guilty explains why there does not seem to be much consistency in Canadian judicial views as to what amount of credit should be allowed following a guilty plea entered at a relatively early stage in the proceedings. I have found the approach taken in a 2007 “Definitive Guideline” developed by the

English Sentencing Guidelines Council (SGC)[2] to be of considerable assistance in this regard. I first note that a portion of theStatement of Purpose makes it clear that such mitigating factors as may exist should be “address[ed] separately…before calculating thereduction for a guilty plea” (s. 2.4). That makes much analytical sense to me, and I now apply it to the case at bar. [22] In addition to the fact that this weapon was not brandished in a public place, and that it does not appear that it was ever used as anoffensive weapon by this accused, I consider that the three main mitigating factors are (

a) the lack of any previous record, (

b) a quitepositive (though not glowing) pre-sentence report (Exhibit 2)[3], and (

c) the offender’s reasonable educational and employmentprospects. However, I should be clear that I have already considered all of these factors in deciding – following the logic in Nur andSmickle – that the appropriate sentence is in the upper-end reformatory range, rather than a penitentiary term. To consider them further atthis stage would amount to what the SGC refers to as “double counting”. [23] Since 2003 the English Criminal Justice Act has provided statutory guidance to sentencing judges: 1. In determining what sentence to pass on an offender who has pleaded guilty to an offence…a court must take into account: (

a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (

b) the circumstances in which this indication was given. [24] To complement the statutory enactment, the SGC has articulated a very utilitarian rationale for applying the reduction principle. Once the mitigating factors have been considered and applied, the Guideline makes it clear that the guilty plea reduction “derives fromthe need for the effective administration of justice and not as an aspect of mitigation” (s. 2.2).

The Council writes: “A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of moreexpeditiously), shortens the gaps between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victimsand witnesses from the concern about having to give evidence”, (s. 2.2). [25] The Guideline then contains a formula for applying the reduction principle, the portions most relevant to the case at bar being: 4.1 The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to thecircumstances in which the guilty plea was indicated, in particular the stage in the proceedings.

The greatest reduction will be givenwhere the plea was indicated at the “first reasonable opportunity”. 4.2 …the level of the reduction will be gauged on a sliding scale ranging from a recommended one third (where the guilty plea wasentered at the first reasonable opportunity in relation to the offence for which sentence is being imposed), reducing to a recommendedone quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the ‘door of the court’ or afterthe trial has begun. [26] Allowing for differences in criminal procedure between Canada and England I can see no good reason in principle for departingfrom this formula in deciding what amount of credit should be given to Mr.

Ishmael for his plea of guilty. In the case at bar, I agree withCrown counsel that because Mr. Ishmael’s plea was not entered until after preliminary inquiry dates had been set, therefore his“penetration” into the justice system has been greater than an offender who “pleads out” at the earliest possible opportunity. Evenbeyond the purely utilitarian English view of these matters, applying any of the various Canadian sentencing rationales proffered in thecase law for making a reduction in sentence for a plea of guilty, this offender’s plea does not entitle him to the greatest reductionpossible.

However, given where the prohibited weapon was found in the apartment, and given that two others were originally chargedwith him, I can readily see that the accused and counsel might well have considered that there were potentially triable issues that couldhave been explored at a preliminary inquiry.

In my judgment, to that extent, the offender’s decision to enter his plea of guilty someweeks in advance of the dates set for the preliminary inquiry is one which entitles him to some considerable reduction in sentence, albeitnot at the maximum level. [27] In all of the circumstances, I have decided that a reduction of one quarter of the otherwise merited custodial sentence of two yearsless a day is appropriate in this case.

Thus, albeit for quite different reasons than those advanced during submissions, I have come to theconclusion that defence counsel is right that an 18 month custodial sentence will adequately balance the principles of denunciation anddeterrence with the offender’s lack of criminal antecedents and his rehabilitative prospects. As I have enunciated, such a sentence will aswell give appropriate weight to the plea of guilty at a relatively early stage in the proceedings.

I now turn to the question of whetheradditional credit should be given to any of the various forms of pre-trial custody and restrictive bail conditions. (

b) Credit for Time Spent on Bail [28] In my view the various arguments advanced by defence counsel in favour of credits for time spent on house arrest or subject to acurfew may be dealt with very simply. These issues have been extensively considered by the Court of Appeal in several cases in recentyears – a partial list includes R. v. Downes (2006) (ON CA), 205 C.C.C. (3d) 488; R. v. Panday (2007) 2007 ONCA598 , 226 C.C.C. (3d) 349; R. v. Ijam 2007 ONCA 597; R. v. Lindsay 2009 ONCA 532; R. v. M.G. 2007 ONCA 837; R. v.Junkert 2010 ONCA 549.

As continually noted by the Court in these cases (decided more recently than some of the older cases referredto by defence counsel), an offender released on bail is not in custody. It therefore follows that if any credit is to be given, it must in someway reflect that the conditions imposed on the offender’s bail release are restrictive to the point where they can be rationally shown tosignificantly affect the offender’s liberty.

Even assuming that I am able, as a matter of law, to consider making such an allowance, thelack of any evidence on point leaves me in the position that I simply cannot evaluate whether this house arrest or the periods of timespent subject to a curfew were particularly onerous In the case at bar, I have no evidence at all that three of the four periods for whichcredit is sought - the house arrest on the 2010 charges, the curfew on either the 2010 or the 2013 charges – have in any meaningful wayintruded into the offender’s liberty.

As to the one period of time for which I do have some “evidence” – the de facto removal of theaccused from his family home because of the restriction on contact with his brother – I do not consider that this even comes close to

rising to the level at which the Court of Appeal has considered it appropriate to merit some allocation of credit while subject to “housearrest” bail. On the record before me, I thus decline to award any credit for any time spent on house arrest or subject to curfews. (

c) Credit for Pre-Trial Custody [29] Pending what the Supreme Court of Canada ultimately decides in R. v. Johnson and related pending cases regarding the rules tobe applied to the awarding of pre-trial custody credit, the wording of the Code seems clear that any award of credit must be restricted to“time spent in custody by the person as a result of the offence” (s. 719(3); emphasis added). I am aware that both counsel are inagreement that credit should be given for the 5 days pre-trial custody pending bail release on the 2010 charge.

With respect, in theabsence of a successful s.524 application once the 2013 charges were laid (and even that seems dubious), I entirely fail to see how timespent in pre-trial custody on another charge in 2010 can be said to provide a credit against the sentence to be imposed for charges laid in2013. As I said to defence counsel when he advanced this proposition, pre-trial custody credits are not some sort of “bank” against whichan offender may later draw reductions in sentence for other offences. Only the clearest of authority would persuade me that I have anydiscretion in this regard.

Neither counsel has been able to produce any in fact scenarios at all similar to this one. Thus, despite Crowncounsel’s concession, I am unwilling to award any credit for the 5 days spent in pre-trial custody on a different charge in 2010. [30] I have found the question of whether to award credit for the 85 days spent in pre-trial custody on the charges I am dealing with tobe more difficult. Once again, both counsel concur that I should make some reduction – although, as previously indicated, they disagreeon the extent of credit to be awarded.

I agree there seems to be a practice that at least 1:1 credit is usually given in normal circumstances. As Parliament has generally recognized in the recent amendments, there seems to be a certain common sense logic to the notion that atleast 1:1 credit should frequently be given for time spent in pre-trial custody.

After all, a day in custody is a day in custody, regardless ofwhether it is served before or following a finding of guilt.[4] However, unlike the mandatory “credit” for time spent in pre-trial custodywhen a life sentence is imposed (Code s. 746), the use of the word “may” in s. 719 makes it clear that the decision to award credit isdiscretionary, and there is a clear line of cases – particularly youth cases – where courts have held that it would sometimes undulydeprecate both the symbolic and practical message of a sentence to make some or any allowance for pre-trial custody.

In other words,whatever may the “the usual practice” that I – and likely every other sentencing judge – routinely engages in on a daily basis, it is by nomeans imperative or essential as a matter of law that such credit be given. [31] Though of course all numbers imposed by sentencing judges have a certain arbitrary element to them, and while I normallywould make some allowance for pre-trial custody by way of a reduction in sentence, I have come to the conclusion that, even if I adoptthe Crown position of awarding a 1:1 credit, reducing the custodial portion of this sentence to about the 15-month level would undulyundermine what the Court of Appeal very recently said in R. v.

Smickle about the appropriateness of imposing sentences at or near themaximum reformatory term in fact patterns such as this. Further, though I am not aware of any media interest in this case, I believe thatsuch a sentence would send the wrong denunciatory message to the public at large, as well as to this offender. [32] In result, concurrent custodial sentences of 18 months are imposed for each of the two offences before the court.

Because Idecline to give any credit for time spent in pre-trial custody, I will not formally endorse the Information to the effect that 85 days havebeen spent in pre-trial custody. (Having said this, of course a copy of these reasons will be attached to the Information so that anyoneinterested may have access to the number of actual pre-trial custody days). (

c) Ancillary Orders [33] I now turn to the question of probation. Despite what was urged by defence counsel, I am of the view that the two yearprobationary term proposed by Crown counsel is appropriate. Defence counsel’s position was based on his assertion that probation isunnecessary to promote his client’s rehabilitation. Perhaps this is so; if, after observing his behaviour in the community his probationofficer considers that Mr. Ishmael’s post-custodial conduct is such that probation is no longer necessary, an application may be brought –on notice to the Crown – to terminate probation early.

However, as the Supreme Court of Canada’s decision in R. v. Proulx (2000) 2000SCC 5 , S.C.J. No. 6 makes clear, probation has another, equally important element to it, namely “the protection of society”.

Beyond the statutory conditions contained in every probation order that are designed to further this goal – keeping the peace and beingof good behaviour, appearing before the court as directed, and notifying the court or probation officer of changes in work, residence orname – I have considered that the following optional conditions of probation will further the goal of protecting society, without undulyinterfering with the offender’s rehabilitation: • The offender will report to a probation officer within two working days of his release from custody, and thereafter as directed; • The offender will remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained inadvance from his probation officer; • The offender will abstain from owning, possessing or carrying a weapon; • The offender will refrain from knowingly contacting, or being in the company of any person known to him to have a criminalrecord, except as may be permitted in advance by his probation officer. [34] Furthermore, while I acknowledge that the offender has done at least 275 hours of voluntary community service on a pre-trialbasis (see Exhibit 1 and some of the letters filed as part of Exhibit 5); nevertheless, given that he is receiving a custodial sentenceconsiderably below the range approved by the Court of Appeal in R. v.

Smickle, I see nothing wrong – and much right – with orderinghim to perform a considerable number of additional community service hours once he is released from custody subject to probation. Inthis way, he can more directly repay society for his very serious breach of our social norms.

Thus: • The offender will perform 200 hours of community service, commencing within 15 days of the commencement of his probationaryperiod, to be completed within 16 months of the probationary period. (As neither counsel has had an opportunity to provide input into these proposed conditions, I shall refrain from making a formal orderuntil I have heard from them).

[ 35 ] Because it is often forgotten, I also wish to add that the length of, and conditions attached to, a probationary term has important social consequences, in that it reminds both the offender and society at large that he will now be subject to State control for the next 3 ½ years, which is in fact 6 months longer than the maximum term sought by the Crown.

Given this, I believe that sensible, tolerant and properly informed members of this community would agree with this sentence. [ 36 ] As agreed between counsel, I make the following ancillary orders: 1) The offender is prohibited from being in possession of any firearms, explosives or ammunition for a period of 15 years. 2) There will be an order for the forfeiture and destruction of the firearm, ammunition and the bulletproof vest seized. 3) There will be an order for the production of a DNA sample pursuant to s. 487.051(4) of the Code . Released: March 19, 2014 Signed: “Justice D.P. Cole”