Background
Fazal Zaban was convicted of manslaughter after a judge-alone trial. He had been charged with first-degree murder for shooting the victim during an arranged purchase of ten pounds of marijuana and a Glock firearm with a 50-round drum magazine.
Zaban brought a loaded prohibited .45-calibre handgun and an extra loaded magazine to the transaction. An altercation occurred in a vehicle, and Zaban fired eight shots, three of which struck the victim. The trial judge rejected his self-defence claim, finding that his use of force was excessive, but convicted him of manslaughter because the events immediately preceding the shooting could not be precisely determined and murder intent was not proved. He received 13 years’ imprisonment, less seven years’ pre-sentence custody credit.
The Court’s Holding
The Court of Appeal granted leave to appeal sentence but dismissed the appeal. It found no error in the sentencing judge’s analysis and held that the 13-year sentence was fit in light of the offence’s gravity and Zaban’s moral blameworthiness.
The court held that the sentencing judge was not required to treat Zaban’s unsuccessful self-defence claim as mitigating. Its mitigating effect depends on the facts. Here, Zaban arrived armed for a drug-and-firearm transaction, anticipated possible violence, and escalated the dispute by producing his gun. The court also noted that the judge had already reduced the sentence from 15 to 13 years to account for harsh pre-sentence custody conditions, including during the COVID-19 pandemic.
Key Takeaways
- A failed self-defence claim is not automatically a mitigating sentencing factor.
- Bringing and using a loaded prohibited firearm during an illicit transaction can substantially increase moral blameworthiness.
- An appellate court will defer to a sentencing judge absent an error in principle or an unfit sentence.
Why It Matters
The decision confirms that sentencing courts may decline to give mitigating weight to a rejected self-defence claim where the offender armed themselves and contributed to escalating a foreseeable violent confrontation.
It also illustrates the strong denunciatory response Ontario courts apply to public gun violence, particularly where the offender has prior violence and firearms offences and is subject to a firearms prohibition.