Case: R. v. Silva, 2026 ONCA 779 (CanLII)
Keywords: firearms; sentence appeal
Synopsis:
A phone is located during the execution of a search warrant as part of a homicide investigation. The Appellant admits the phone is hers. (See para. 4). The phone contains photos and videos in which the Appellant is seen holding a Glock Model 41 and Glock Model 17. (See para. 5). The firearms are not located, but there is some evidence to suggest the Appellant was involved in purchasing them for a “friend”. (See para. 5). “There were also loaded magazines seen in some of the photos.” (See para. 6). Based on circumstantial evidence, the Appellant is found guilty of two counts of possession of a restricted firearm. The sentencing judge (Bale J.) later sentences her to serve concurrent two-year sentences. (See paras. 6-7).
The Court of Appeal (Fairburn A.C.J.O., Rouleau and Favreau JJ.A.) allows the appeal from sentence on the basis that a conditional sentence was “wrongly excluded from consideration”. (See para. 19). Sentencing afresh, the Court imposes a conditional sentence of two years less one day, effective from the date the Appellant was originally sentenced. (See para. 2).
Importance:
In the circumstances of this case, the sentencing judge proceeded from the assumption that the Appellant was “in custody and about to be sentenced on a more serious charge” for “accessory after the fact to murder” and that, therefore, a conditional sentence should not be considered. (See paras. 12, 15). The Court of Appeal found that, contrary to this assumption, the Appellant “was not facing and did not receive a substantial penitentiary sentence”. Instead, the Crown conceded that the Appellant should be credited for 4 years’ pre-sentence custody in “very difficult conditions” and the sentence ultimately imposed was “one day in jail”. (See para. 17).
For the Court of Appeal, the reasons to refuse to consider the conditional sentence “fell away” and the Appellant “was likely already at (or very near) a time served situation on the accessory count at the time she was sentenced on the firearm counts.” (See para. 18). Since the failure to consider the availability of a conditional sentence rested on “an entirely false premise”, the Court of Appeal resentenced the Appellant. (See paras. 19-20).
At para. 22, the Court of Appeal helpfully summarized the law governing the availability of a conditional sentence order in the context of a firearms case. While emphasizing that it is “very rare” (i.e., in light of the need to “meaningfully address deterrence, denunciation, and ongoing supervision”), the Court observed that a conditional sentence may be available if:
- there are “strong mitigating factors”, or
- personal circumstances that significantly reduce moral blameworthiness or intensify the impact of incarceration. (See para. 22, citing R. v. Kulatheeswaran, 2026 ONCA 128, at para. 16; R. v. Morris, 2021 ONCA 680, at para. 151; and R. v. Smith, 2023 ONCA 620, at para. 8).
For the Court of Appeal, the Appellant had “an extremely impressive record of rehabilitation in custody” (e.g., she participated in “anti-violence programming on topics such as anger management, building healthy relationships, substance use, managing grief, and accountability”; “faith-based programs on addictions and relationships”; and “completed her high-school diploma, performing exceptionally well in her courses”). (See para. 24).
While noting that the offences were “very serious” and that, “[t]ypically, a conditional sentence order would be beyond reach”, the Court of Appeal found the Appellant to be “an appropriate candidate for release on a conditional sentence order”. (See paras. 29-30).
Counsel for the Appellant, appearing as duty counsel*: Breana Vandebeek (Gorham Vandebeek, Toronto)
Counsel for the Respondent: Emma Loignon-Giroux (Ministère du Procureur général de l’Ontario, Ottawa)
* “[W]ith the capable assistance of duty counsel” at para. 9.