R. v. Abdella, 2020 ONCJ 245

Court Information

Date: April 1, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Salahaddin Abdella

Before: Justice Neil L. Kozloff

Reasons for Sentence released: April 1, 2020

Counsel:

• J. Tupper for the Crown
• M. Wyszomierska for the Offender, Salahaddin Abdella

Judgment

Kozloff, J.:

Procedural History

1On March 20th, 2019 Salahaddin Abdella (hereinafter "Mr. Abdella" and "the offender") was arrested and charged with numerous Criminal Code of Canada offences – namely aggravated assault, using a restricted weapon in a careless manner, possession of a weapon for a purpose dangerous to the public peace, possession of a loaded restricted firearm, carrying concealed a prohibited device, and intentionally discharging a firearm while being reckless as to the life or safety of another person – all arising from the shooting of Kevin Nguyen at the Lawrence Allen Centre (formerly the Lawrence Square Shopping Centre, located at 700 Lawrence Avenue West, Toronto) on March 19, 2019.

2On April 11, 2019, following a show cause hearing, Mr. Abdella was ordered detained in custody.

3On October 28th, 29th, and 30th, 2019 Mr. Abdella appeared before me for the preliminary inquiry into the above-mentioned charges.

4Following the hearing of evidence at the preliminary hearing, counsel advised that committal for trial was conceded and thereafter at their request I conducted an exit pre-trial, following which the matter was adjourned to November 18th, 2019 for either an Order to Stand Trial or a resolution of the case.

5The matter was subsequently adjourned from time to time at the request of counsel while they attempted to resolve the case.

6On February 26th, 2020, with the consent of the Crown and following a detailed plea inquiry, Mr. Abdella re-elected before me and pleaded guilty to the offence set out in count 4 of the Information, namely:

4. On or about the 19th day of March in the year 2019 at the City of Toronto in the Toronto Region did, without lawful excuse, possess a loaded restricted firearm…, at 700 Lawrence Avenue West, in the City of Toronto, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to Section 95, subsection (1) of the Criminal Code of Canada.

7Following the plea, the facts were read in.

8The facts were admitted by Ms. Wyszomierska on the offender's behalf subject to the following qualification that was not disputed by the Crown:

Mr. Abdella, while admitting that he was in possession of a loaded restricted weapon at the time of the altercation, does not admit that the round which was discharged during the course of the altercation and which struck Mr. Nguyen in the femur came from the Abdella firearm.

9On behalf of Mr. Abdella, Ms. Wyszomierska provided me with the following sentencing materials:

1. Letter of Hanan Abdella
2. Letter of Abdullah Alhuraibi
3. Durham College Grades – S. Abdella
4. Report of Lockdowns from South Detention Centre

10Ms. Wyszomierska also provided me with a Book of Authorities re: Sentencing, which includes the following cases:

1. R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (Ont. C.A.)
2. R. v. Smickle, 2014 ONCA 49, [2014] O.J. No. 258 (Ont. C.A.)
3. R. v. Prosser, 2014 ONSC 6466, [2014] O.J. No. 5291 (Ont. SCJ) J.M. Wilson J.
4. R. v. Roy, [2018] O.J. No. 3427 (Ont. CJ) D. Moore J.
5. R. v. Filian-Jiminez, [2014] No. 3852 (Ont. C.A.)
6. R. v. Brown, 2015 ONCA 361, [2015] O.J. No. 2655 (Ont. C.A.)
7. R. v. Borde, [2003] 172 C.C.C. (3d) 225 (Ont. C.A.)
8. R. v. Persaud, 2020 ONSC 188, [2020] O.J. No. 95 (Ont. SCJ) P.A. Schreck J.
9. R. v. Inniss, 2017 ONSC 2779, [2017] O.J. No. 2420 (Ont. SCJ) M.D. Forestell J.
10. R. v. Duncan, [2016] O.J. No. 5244 (Ont. C.A.)

11The matter was adjourned to March 31st, 2020 for oral sentence submissions.

12On March 28th, the Crown provided me with written Sentencing Submissions and a Crown Book of Authorities on Sentence, which includes the following cases:

1. R. v. Nur, [2015] 1 S.C.R. 733
2. R. v. Smickle, supra
3. R. v. Beals, [2015] O.J. No. 2306 (Ont. SCJ) R.F. Goldstein J.
4. R. v. Harutyunyan, 2012 ONSC 58, [2012] O.J. No. 177 (Ont. SCJ) M.L. Benotto J.
5. R. v. Mansingh, 2016 ONSC 94, [2016] O.J. No. 92 (Ont. SCJ) R.F. Goldstein J.
6. R. v. Mark, [2018] O.J. No. 270 (Ont. SCJ) K.L. Campbell J.
7. R. v. Nelson, ONSC 1728 (Ont. SCJ) M.L. Edwards J.
8. R. v. Serrano, 2018 ONSC 6785, [2018] O.J. No. 6128 (Ont. SCJ) B.L. Croll J.
9. R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038 (Ont. SCJ) S.A.Q. Akhtar J.
10. R. v. Travis, [2019] O.J. No. 4293 (Ont. SCJ) J.P.R. Howard J.

13On March 30th, after my thorough review of the Crown's materials, I arranged a telephone conference with Mr. Tupper and Ms. Wyszomierska to address matters, which in the result included the following:

1. Me informing counsel with regard to how cases such Mr. Abdella's are being addressed at the Toronto North Courthouse during the COVID-19 virus/health crisis, namely by the presiding judge being present in the one courtroom (308) available to judges for dealing with in custody matters, with the offender appearing by video link from the TSDC and Crown and Defence counsel appearing by telephone;

2. Me advising counsel of the time constraints on such cases imposed by the fact that all in custody matters before a judge where the appearance of the accused/offender by video is required must be dealt with in a courtroom (308) equipped for that purpose;

3. Me advising counsel that said time constraints excluded the possibility of (vive voce evidence being called and/or) oral submissions being made on the return date of March 31st; and

4. Ms. Wyszomierska advising me and Mr. Tupper that there were evidentiary matters – including evidence concerning an injury suffered by Mr. Abdella while in custody and addressing its treatment and/or lack thereof, evidence concerning further lockdowns at the TSDC after February 26th, evidence concerning the effects of the COVID-19 virus at the TSDC including activities, visitors, and programming, evidence concerning where offenders in Mr. Abdella's circumstances were likely to be incarcerated, and evidence concerning the effects if any of the COVID-19 virus on the Provincial parole process – all of which she was not yet in a position to present.

14Following our teleconference, I emailed counsel inquiring whether they wished to receive a draft copy of my Reasons for Sentence (i.e. the reasons I had prepared in advance of, and subject to revision after, hearing further evidence and oral submissions) in order to assist counsel in making an informed decision regarding whether I should impose sentence on March 31st or adjourn the matter for further evidence and oral submissions. Mr. Tupper deferred to Ms. Wyszomierska, who then indicated that she would welcome a draft copy. A draft copy of my reasons for sentence was emailed to Mr. Tupper and Ms. Wyszomierska.

15On March 31st, 2020 I arranged another telephone conference with Mr. Tupper and Ms. Wyszomierska prior to the scheduled court appearance to address whether we were going to adjourn the matter or proceed to sentence. Ms. Wyszomierska advised that she required a 24-hour adjournment to discuss matters with Mr. Abdella and his family and to thereafter get informed instructions from Mr. Abdella.

16The matter was then spoken to in 308 court and adjourned to April 1st in 308 court to be spoken to.

17Following Mr. Abdella's court appearance I received from Ms. Wyszomierska by email a letter addressed to me from Elham Salim, Mr. Abdella's mother.

18On April 1st I made the Sentencing Materials received from Ms. Wyszomierska on February 26th together with the letter addressed to me from Elham Salim, exhibits on sentence.

19Without the hearing of further evidence or oral submissions and with the express and informed consent of both Crown and Defence I then imposed sentence on Mr. Abdella with my written reasons to follow.

20These are my reasons for sentence.

The Facts and Other Relevant Information

21The facts were read in by the Crown following Mr. Abdella's plea of guilt. For the sake of completeness, I have supplemented them with some (underlined) insertions which are based upon the video surveillance evidence presented during the preliminary hearing and with certain inferences I have drawn therefrom:

On Tuesday, March 19th, 2019 at approximately 4 p.m. Mr. Abdella attended the Lawrence Square Mall which is located at 700 Lawrence Avenue West within the City of Toronto.

He was in the company of four (4) other parties including Kevin Nguyen.

Mr. Abdella attended the cafeteria area on the upper floor of the mall with his friends and, as you saw on the video, they were being watched by a group of six (6) unknown males that were also located within the cafeteria.

Mr. Abdella and his associates purchased some food in the food court and left the cafeteria area while continuously being watched by the group of six unknown males.

Mr. Abdella and his friends exited the cafeteria and proceeded down the escalators with his friends, and group of unknown males following behind them.

Once Mr. Abdella and his friends arrived on the main level of the mall, they were confronted by the group of unknown males for a second time and at that point a short physical altercation ensued.

It is apparent from the video surveillance that the group of six unknown males was moving at a much faster pace than the offender's group as they proceeded down the escalator. This leads me to infer that the group of six unknown males were in fact intentionally giving chase to the offender's group, and, that the group of six unknown males were the aggressors in the confrontation and the physical altercation that ensued.

During the physical altercation it's alleged Mr. Abdella produced a firearm which discharged one round striking his friend Mr. Nguyen in the right thigh area and shattering his femur.

At this time Mr. Abdella and his companions – excepting of course Mr. Nguyen – fled the scene in a northbound direction exiting the mall.

Mr. Abdella and one of his associates entered into a blue Ford Fusion and left the area.

Police attended the scene and commenced an investigation.

Investigating officers reviewed mall security video and Mr. Abdella and his other friends who were involved were identified.

The following day – Wednesday, March 20th, 2019 – Mr. Abdella was located in the area of Gerrard Street and Jarvis Street in the City of Toronto.

At approximately 10:30 p.m. he was arrested for the charges before the Court, read his rights to counsel and cautioned.

At that point Mr. Abdella was taken to Toronto Police Service 33 Division.

He was held pending a bail hearing.

He has been detained since that time – the date of his arrest – and my calculation is 344 real days as of today.

22As noted above, the above facts were admitted on behalf of the offender by Ms. Wyszomierska subject to a qualification, namely that:

Mr. Abdella admits that at the time of the altercation he was in possession of a loaded restricted firearm (which was not recovered), and, admits that he took that loaded restricted firearm from a place of concealment on his person during the course of the altercation; however, the offender does not admit that the round which was discharged during the course of the altercation and which struck Mr. Nguyen in the femur came from the loaded firearm he produced during the altercation.

23On behalf of the Crown, Mr. Tupper stated that he was "content" with that qualification.

Victim Impact Statement

24None was provided. Indeed, Mr. Nguyen was not called as a witness at the preliminary hearing either by the Crown or by the Defence.

Positions of the Parties

Crown

25Initially, Mr. Tupper was seeking a sentence of 5 years less credit for pre-sentence custody on behalf of the Crown.

26Then, on March 27th last, Mr. Tupper wrote to the Court advising that he had

spoken with the Crown Attorney Mr. Callaghan regarding this prosecution and he has authorized me to revise the Crown's position on open submissions to 4 years jail less PSC. Mr. Callaghan also authorized a joint position of 3.5 years jail less PSC (at the ratio of 1.5 to 1) that was relayed to Ms. Wyszomierska on Wednesday. She is still awaiting a reply from Mr. Abdella regarding the joint position which is reasonable given the current situation with the COVID-19 pandemic.

27The Crown also seeks the following orders:

• A section 109 Order for 10 years
• An Order for the taking of his D.N.A. pursuant to s. 487.051
• If his sentence falls within the reformatory range, a Probation Order for 24 months including the following conditions: statutory; reporting; residence; non-attendance at the Lawrence Square Mall at 700 Lawrence Avenue West, Toronto; no contact with Ahmed Hassan, Doan Hai Nguyen, Kevin Van Nguyen, Ayanna Kali Pitt; assessment and counselling as directed and sign releases permitting his probation officer to monitor his progress; no weapons; and, seek and maintain employment or upgrade employment or training

28The materials provided by the Crown on March 28th advocate the four-year (open) submission.

29In relation to the aggravating factors, Mr. Tupper refers to the following:

• Mr. Abdella was in possession of a loaded restricted weapon in an easily accessible location – concealed on his person – and which he was able to rapidly access it at the time;
• He made a pre-meditated decision to procure the loaded restricted weapon, secret it on his person, and attend at a public place – the Lawrence Square Mall – in close proximity to many innocent members of the public, posing a significant threat to public safety;
• Whether the discharge of the firearm was accidental or purposeful, Mr. Abdella's possession of a loaded restricted weapon at that location created a real risk of significant injury or even death given how the firearm was brandished; and
• It can be inferred that Mr. Abdella brandished the loaded restricted firearm for the specific purpose of intimidating and threatening the other males involved during the physical altercation

30In relation to the mitigating factors, Mr. Tupper concedes that:

• Mr. Abdella (born 7 October 1998) is a youthful offender who was 20 at the time of the offence and is 21 now;
• He has one prior unrelated finding of guilt – Driving While Disqualified – for which he received a conditional discharge and probation for 6 months on 12 October 2018;
• Mr. Abdella pleaded guilty after hearing from witnesses at his preliminary hearing but prior to his committal for trial;
• Mr. Abdella's potential for rehabilitation is "remarkably high". He is very youthful, has an education and skill set that will allow him to be a highly valued and contributing member of society in the future, and he has an extremely supportive family; and
• Mr. Abdella has served 378 real days of pre-sentence custody at the Toronto South Detention Centre which, at the "basic enhanced credit ration of 1.5 to 1" amounts to 567 days of pre-sentence custody as of March 31, 2020.

Defence

31On behalf of the Offender, Ms. Wyszomierska is seeking a sentence of three (3) years less credit for pre-sentence custody, with enhanced credit noted for the time served by the offender in pre-sentence custody and additional enhanced credit for particularly harsh presentence conditions.

32Ms. Wyszomierska cites the following as mitigating factors:

1. The decision of the offender to resolve this case by way of a guilty plea, which – it is posited – is an expression of remorse, an acknowledgment of responsibility, and a recognition by Mr. Abdella of his moral blameworthiness.
2. His relative youth (20 at the time of the offence).
3. His prospects for rehabilitation.

33As of March 31st, the offender will have served a total of 378 days in pre-sentence custody. Enhanced by 1.5 days for each day of pre-sentence custody, he will be entitled to 567 days of credit for pre-sentence custody.

34Ms. Wyszomierska also asks me to give the offender an additional Duncan credit for the time he spent in custody during lockdowns at the Toronto South Detention Centre.

35The defence does not dispute the various aggravating factors referred to above.

36However, Ms. Wyszomierska argues that there are factors – namely the offender's youth and prior antecedents – that place this case within a lower range of sentence than that posited by the Crown.

37Given the guilty plea as well as the age, background and future prospects of the offender, she asks me to sentence Mr. Abdella to three (3) years less credit given for pre-sentence custody of 567 days and less an additional (Duncan) credit for time spent in custody during institutional "lockdowns".

Applicable Provisions of the Criminal Code

The Offence

38Every person who possesses a loaded restricted firearm contrary to s. 95 (1) of the Criminal Code of Canada is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of three years in the case of a first offence: s. 95(2) (a)(i) of the Criminal Code of Canada.

Sentence

39Section 718 of the Criminal Code of Canada provides:

S. 718. 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 from 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.

40Section 718.1 of the Criminal Code of Canada provides:

718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

41The relevant portions of section 718.2 of the Criminal Code of Canada provide:

718.2: A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(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

42The relevant portions of section 719 of the Criminal Code of Canada provide:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence, but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

Applicable Case Law

The Purpose of Section 95

43The purpose of s. 95 of the Criminal Code of Canada is set out by Doherty J.A. in R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (Ont. C.A.) at p. 10, paras. 54 and following, the relevant portions of which are set out below:

54. The purpose of s. 95 is obvious and non-controversial. All firearms pose a danger, both to users and to others. The possession and use of firearms have been tightly regulated in Canada for many years. Experience teaches that certain kinds of firearms, e.g. handguns, sawed-off rifles, and automatic firearms, are the weapons of choice of the criminal element. Those kinds of firearms pose an added danger to the public. They become even more dangerous when loaded or when useable ammunition is readily available to the person in possession of the firearm.

55. Section 95 seeks to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase the danger posed to the public by the possession of those firearms. By criminalizing possession simpliciter, the criminal law can intercede before someone is actually harmed and before criminal activity, so often associated with the possession of these kinds of firearms, actually occurs or is attempted.

56. Section 95 is, without question, a valid expression of the federal criminal law power… a rational legislative response to the very real public safety concerns associated with the possession of the kinds of firearms described in s. 95… Parliament had before it a wealth of information, indicating that gun violence and related criminal activity were taking a massive human and economic toll, especially in communities in Canada's large cities where social and economic conditions provided fertile ground for gang-related activities. Young males in those communities were particularly likely to be caught up in gun violence, both as users and as victims.

57. Parliament reacted to these very real public safety concerns with a package of legislation, one part of which provided for a lengthy mandatory minimum jail sentence for those convicted under s. 95, if the Crown chose to proceed by indictment. The certainty that a significant jail term would follow upon conviction for a s. 95 offence reflected Parliament's determination that the community could best be protected by severe sentences that would denounce gun-related activity, deter those who might resort to such activity, and incapacitate for significant periods those who chose to engage in such activity.

The Constitutionality of section 95(2)(a)(i)

44Section 95(2)(a)(i) is of no force or effect to the extent that it imposes a mandatory three-year minimum term of imprisonment when the Crown proceeds by indictment.

Nur, supra at para. 207

45Nonetheless, with respect to section 95 offences at the "true crime end" of the spectrum, individuals "who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation".

Nur, supra at para. 206

The Range of Sentences Imposed for s. 95(2)(a)(i) Offences

46A good starting point is paragraph 82 of Chief Justice McLachlin's majority judgment in R. v. Nur, 2015 SCC 15; [2015] 1 SCR 773 (S.C.C.):

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade… [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

47In his trial judgment – R. v. Nur, 2011 ONSC 4874, [2012] 275 C.C.C. 330 Ont. SCJ – Code J. had upheld the constitutionality of the three-year minimum sentence under s. 95 and concluded that a sentence of 40 months was appropriate for the offence and the offender, having regard to the mandatory three year minimum. (Emphasis added)

48The offender, who was denied bail, had eventually pleaded guilty before Code J. to one count of possession of a loaded prohibited firearm. He did not admit any of the facts relevant to the allegation beyond those essential to maintaining the plea, instead putting the Crown to the strict proof of any facts the Crown relied on as aggravating features on sentence.

49Following a lengthy sentencing hearing during which the Crown led evidence relevant to the circumstances of the offence, the offender made an unsworn statement pursuant to s. 726 of the Criminal Code of Canada to the effect that "somebody had told him to hold the gun and run if the police came". Code J. ultimately assigned no weight to Nur's explanation for possession of the gun

50Code J. made findings of fact in respect of the circumstances surrounding the commission of the offence at para 27 of his reasons. Those findings of fact are set out below with some additional clarification in parentheses added by me:

• There were a group of young men outside the east and west doors of the (Driftwood Community) Centre on the night in question;
• One or more of these young men must have done or said something to cause another young man who came into the Centre to fear for his safety;
• That young man spoke to Marlin Roper (a supervisor of youth activities at the Centre) who then assessed the situation, in particular by observing a man outside the Centre who appeared to be dressed in a manner that would not allow for identification and that made him appear unapproachable or threatening;
• The combination of these circumstances caused the staff to "lock down" the Centre and call the police to investigate the young men outside the east and west doors;
• The accused Nur had been dropped off by his brother at the east doors, off the parking lot, but he did not enter the Centre to play basketball. Instead, he must have gone around to the west doors, off Jane Street, and waited there outside the Centre. There is no clear evidence as to how long Nur waited outside the (west) doors but it appears that his brother dropped him off prior to the "lock down";
• At some point, Nur came into possession of the prohibited firearm and he hid it under his coat. There is no clear evidence as to how long he had been in possession of the gun or how he came to possess it;
• When the police arrived and approached Nur, he fled. When his attempt to flee appeared to be failing, he tried to dispose of the gun.

11. Having struck down the mandatory minimum in R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (Ont. C.A.), Doherty J.A. addressed the sentence imposed by Code J. at para. 6 of his judgment:

[6] Lastly, as to the fitness of the actual sentence imposed, the trial judge sentenced the appellant to one day in custody and gave him 40 months credit for 20 months pre-sentence custody. The Crown does not suggest that the appellant should be reincarcerated. I see no practical value in going through the exercise of determining what would be an appropriate sentence for the appellant in the absence of the mandatory minimum and had he not served the equivalent of a 40-month sentence. I observe only that, even absent the mandatory minimum, and having regard to the appellant's age and his first offender status, a significant jail term was still necessary in the circumstances of this case. (Emphasis added)

51In Smickle, supra the Court of Appeal substituted a sentence of two years less one day for the sentence which had been imposed by Justice Anne M. Molloy of the Ontario Superior Court of Justice at trial. Justice Molloy had declared the three-year mandatory minimum sentence under s. 95 unconstitutional and of no force and effect and imposed a five-month conditional sentence after giving the offender seven months total credit for a combination of pre-sentence custody and time spent out of custody on a restrictive judicial interim release.

52The relevant facts are set out in the trial judgment of Molloy J. – R. v. Smickle, 2012 ONSC 602; [2012] 280 C.C.C. (3d) 365 Ontario Superior Court of Justice – at para. 1:

[1] At just before 2:00 am on March 9, 2009, Leroy Smickle was engaged in a very silly act. He was alone in the apartment of his cousin, Rojohn Brown, having elected (because he had to be at work in the morning) to stay in while his cousin went out to a club. Mr. Smickle was reclining on the sofa, wearing boxer shorts, a white tank top, and sunglasses. Thus clad, he was in the process of taking his picture for his Facebook page, using the webcam on his laptop computer. For reasons known only to Mr. Smickle, and which arguably go beyond mere foolishness, he was posing in this manner with a loaded handgun in one hand. Unfortunately for Mr. Smickle, at this exact moment, members of the Toronto Emergency Task Force and the Guns and Gangs Squad were gathered outside the apartment preparing to execute a search warrant in relation to Mr. Brown, who was believed to be in possession of illegal firearms. They smashed in the door of the apartment with a battering ram, and Mr. Smickle was literally caught red-handed, with a loaded illegal firearm in his hand. He immediately dropped the gun and the computer, as ordered to by the police, and was thereupon arrested.

53At the time of the offence, Mr. Smickle was 27; he had no criminal record, was employed full time with a cleaning company and had been working to complete his high school diploma through on-line credits.

54In Prosser, supra following an unsuccessful Garofoli application the offender did not contest the admissions in the Agreed Statement of Fact prepared by counsel and was found guilty of possession of a loaded prohibited firearm, possession of a firearm without a licence, possession of a controlled substance (cocaine) for the purposes of trafficking, and possession of the proceeds of crime.

55The police had obtained a search warrant for the apartment where the offender was living with his family. In the bedroom occupied by Prosser they had located a loaded .25 calibre semi-automatic pistol with a detachable box cartridge magazine, 32 rounds of .25 calibre ammunition, 4 rounds of .22 calibre ammunition, 81.78 grams of separately packaged powder cocaine, $3460 in cash, two weigh scales and two cell phones.

56Unbeknownst to Prosser the firearm was not capable of firing due to a broken firing pin, albeit the Agreed Statement of Fact confirmed it was a firearm "easily capable of being adapted for use…" Prosser confirmed in his evidence that he did not know that the gun did not work.

57Prosser was 18 at the time of his arrest and a first offender.

58The Crown sought a sentence of three to four year's incarceration. The defence sought a conditional sentence of two years less a day taking into account time served and a credit for strict conditions of bail to be followed by a significant period of probation.

59In her reasons for sentence Justice Wilson found that the "evidence clearly supports the conclusion that at the time of his arrest, the offender was a drug dealer selling cocaine who carried a gun for his protection. Apparently six months prior to his arrest Prosser had been shot in some sort of robbery attempt, and he testified in the sentencing hearing that he acquired the gun and ammunition thereafter in order to protect himself

60Justice Wilson was also satisfied that Prosser had taken significant steps in turning his life around with the support of family and friends and that his prospects for rehabilitation were promising.

61It is not clear to me from her reasons what sentence Wilson J. actually imposed on Mr. Prosser.

1. At para. 54 she states: "…I find that the appropriate sentence in all of the circumstances is two years concurrent on all of the weapon and ammunition related convictions, with a consecutive sentence of six months for the drug and drug related convictions." (Emphasis added)
2. At para. 57 she states: "I find that Mr. Prosser should be given six months' credit for his exemplary compliance with his bail conditions…"
3. At para. 60 she states: "Mr. Prosser spent four days in custody following his arrest. He has also been in custody as of June 5, 2014…Thus he has spent a total of 158 days in pre-sentence remand. I have credited Mr. Prosser with 237 days, which translates to a credit for eight months incarceration. To this credit I add the six months… Mr. Prosser is therefore entitled to a total of 14 months' credit to be applied to his sentence of three years concurrent on all charges. (Emphasis added)
4. At para. 61 she states: "The remaining time that Mr. Prosser must serve is therefore 16 months." (Emphasis added)
5. At para. 62 she states: "Since Mr. Prosser's sentence is two years, six months, prior to any credits …" (Emphasis added)
6. At para. 63 she writes: "Therefore, Mr. Prosser will serve the remaining 16 months of his sentence in a provincial institution.
7. At para. 65 she states: The 22-month sentence will be followed by a period of two years' probation.

62While I am unable to determine what the ultimate sentence imposed was – two years and six months or three years – or indeed what sentence remained for Mr. Prosser to serve – 16 months or 22 months – it appears that Justice Wilson imposed a two-year sentence for the s. 95 offence.

63In Roy, supra the offender pleaded guilty to possession of a loaded prohibited firearm – s. 95(1) – and possess firearm contrary to a prohibition order – s. 117.1 – after five days of evidence at a preliminary hearing. Mr. Roy had been a passenger in the rear driver's side seat of a "crew cab" truck that had been stopped at 1:40 am by the police because they believed the occupant(s) of the vehicle might be witnesses in relation to a "person with a gun call" and not because they believed its occupant(s) had committed any offence. When the driver of the truck blew a "warn" on the ASD, the police decided to have the other occupants including Roy removed from the vehicle and detained for investigation. Roy was very intoxicated and resisted exiting the vehicle. During the ensuing struggle, a loaded .38 calibre semi-automatic handgun was removed from his waistband. At the time Roy was subject to a probation order made some four months previous that contained a condition prohibiting the possession of weapons, which was the basis of the s. 117.1 conviction.

64The Crown sought a sentence of 4 years for the s. 95(1) offence and 6 months consecutive for the s. 117.1 offence less 16 months credit for pre-sentence custody, 4 months credit for Roy's tragic childhood, and 3 months credit for the guilty plea(s), leaving a sentence of 31 months remaining to be served.

65The defence sought a sentence of 20 months less 16 months credit for pre-sentence custody, leaving a sentence of 4 months remaining to be served.

66Moore J. found that Roy, who was 21 at the time of the offence, suffers from attention deficit hyperactivity disorder (ADHD) as well as the effects of numerous incidences of abuse and neglect he suffered during a horrific childhood.

67Moore J. found no link between Roy's possession of the firearm and drug trafficking or proof that he possessed the weapon as a "tool of his criminal trade" and that this offence falls in the middle category described by Chief Justice McLachlin in Nur.

68In the result, Moore J. imposed a sentence of 21 months for the s. 95 offence and 3 months consecutive for the s. 117.1 offence along with 3 years' probation, less credit for pre-sentence custody of 476 days and leaving 254 days to be served. For the sake of clarification, he writes at paras 26 and 29:

26. Had Mr. Roy not had any time served I would have reduced the total custodial sentence to two years less one day to keep him in the reformatory system however that is not necessary as he does have substantial time in pretrial custody.

27. I realize that this might be seen by some as a lenient sentence. It is actually my intention in imposing this sentence to be as lenient as possible while still remaining within the acceptable range and recognizing the need for general deterrence and denunciation. I think Mr. Roy deserves another chance, but he needs to recognize this might be the last one he gets.

69The Endorsement in Filian-Jiminez, supra, reproduced below in its entirety, is very brief (three paragraphs in total):

1. The trial judge gave carefully considered reasons for imposing a sentence of 18 months on the offences of possession of a loaded restricted firearm and possession of a firearm knowing that its possession is unauthorized. The Crown seeks leave to appeal the sentence.

2. While this is a (sic) clearly a very low sentence, we are not persuaded that the trial judge erred in principle. He identified factors that in his view justified imposing a relatively lenient sentence. The respondent had repudiated his membership in a gang, entered an early guilty plea, was engaged in full time employment and had fundamentally changed his lifestyle. He had the gun because shots had been fired at his house and he feared for the safety of his mother and his girlfriend with whom he shared the house. While possession of a gun for protective purposes is certainly not to be condoned, the trial judge accepted that the respondent did not have the weapon for any other purpose. The trial judge's assessment of the respondent and his prospects is entitled to deference in this court. While this is a very low sentence in the circumstances, it is not manifestly unfit.

3. Accordingly, we grant leave to appeal but dismiss the appeal from sentence.

70Given the lack of detail, it is not apparent why the offender came to the attention of the authorities and/or where, when, and under what circumstances he was arrested and/or how his possession the gun came to be discovered.

71Brown, supra is an appeal from a total of nine years imprisonment imposed on an 18-year-old first offender, after a jury trial, in respect of a home invasion marked by horrific violence and convictions of robbery, use of a restricted weapon during a rough, forcible confinement, uttering a death threat, aggravated assault, and unauthorized possession of a firearm contrary to s. 91(1). The trail judge had imposed a sentence of 7 years for the robbery, robbery with a firearm, and aggravated assault, 3 years concurrent for the uttering threats and forcible confinement, and 2 years consecutive for the unlawful possession of a firearm

72The court determined that the sentencing judge had erred in saying that general deterrence and denunciation had become the "primary consideration" given that the primary objectives in sentencing a youthful first-time offender are individual deterrence and rehabilitation. However, they were of the view that the 7-year sentences for the robbery with a firearm and aggravated assault were entirely fit and that a shorter sentence would not reflect their gravity. Accordingly, they varied the sentence by making the sentence for unlawful possession of a firearm concurrent to the other sentences, in order to reduce the total sentence from 9 years to 7 years, notwithstanding that the "two-year sentence for unlawful possession of a firearm contrary to s. 91(1) of the Criminal Code was also fit considering how the gun was used, when considered on its own." (Emphasis added)

73In Borde, supra the appellant – who was 18 at the time of the offences – had pleaded guilty to aggravated assault, possession of a loaded restricted weapon, using a firearm in the commission of an indictable offence, and three counts of breach of a recognizance. He was on probation when he committed the offences and in breach of an order that he not possess any firearms or ammunition. He had a substantial youth record which included crimes of violence.

74Brennan J. had imposed a sentence totalling seven years and nine months – 5 years for the aggravated assault, 1 year consecutive for the use firearm during an indictable offence, 1 year consecutive for the possession of a loaded restricted firearm, and 9 months consecutive for fail to comply x3 – less credit for pre-trial custody of 31months, leaving five years and two months to be served.

75Rosenberg J.A. found that the trial judge had not given "proper consideration to the appellant's youth and that a first penitentiary sentence should be as short as possible." Accordingly, he varied the sentence by reducing the sentence for the aggravated assault from five years to four years, thereby reducing the time remaining to be served to four years and two months. (Emphasis added)

76In Persad, supra, Schreck J. imposed a sentence of three and a half years for possession of a loaded restricted firearm, one year concurrent for possession of loaded over-capacity magazine, one year consecutive for violation of a s. 109 order, and four and one half years consecutive for possession of cocaine for the purpose of trafficking and possession of fentanyl for the purpose of trafficking i.e. concurrent to one another but consecutive to the other charges, for a total sentence of nine years. The charges arose as the result of the execution of a search warrant at the offender's residence.

77In Beals, supra, Goldstein J. refers to the toll of violence and destruction arising from the presence of illegal handguns in Toronto when imposing a three-year sentence on a 23 year-old first offender who had abandoned a loaded handgun in a public place following an accident that had occurred as a result of street racing. He notes (at paragraph 31) that "the mere illegal possession of a dangerous firearm like this one is a true crime in and of itself. Weapons such as these have only one of two purposes – either to kill people, or to intimidate people – and the reason they are intimidating is because everyone knows about the first purpose … The crime of possessing one of these weapons is not a momentary lapse of judgment … The courts have a duty to protect the public from these weapons and from the people who casually carry them and take them out in public."

78In Harutyunyan, supra, Benotto J. imposed a four-year sentence on a 25 year-old first offender for offences relating to his possession of a loaded 380 semi-automatic prohibited handgun. He had been stopped by police driving a suspected stolen vehicle, attempted to leave the scene contrary to their direction, but was arrested at which time the loaded firearm fell from his pants. She states (at paragraph 16): "The aggravating factor here is the heightened danger to the public … Sadly our courts have seen too many situations where innocent bystanders are injured or killed. The very presence of a loaded semi-automatic firearm constitutes such a public danger that a significant denunciation and deterrent consideration is engaged."

79In Mansingh, supra Goldstein J. reiterates much of what he had stated previously in Beals. He notes (at paragraph 38) that "the most important principle when dealing with the possession of an illegal handgun is general deterrence" while emphasizing (at paragraphs 41 and 42) the important role of denunciation when imposing a 40-month sentence on a 27 year-old first offender for weapons offences including possession of a loaded prohibited firearm following a trial.

80In Mark, supra Campbell J. imposed a global four-year sentence for offences including possession of a loaded restricted firearm and possession of cocaine and of marijuana for the purposes of trafficking – including a three-year sentence for the firearms offence – on a 25 year-old first offender with excellent prospects for rehabilitation. He reasons (at paragraph 24): "Courts have repeatedly observed that the criminal possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as drug-trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms

81In Serrano, supra, following a trial Croll J. imposed a 36-month sentence on a 36-year old offender with a minor and rather dated criminal record who took a loaded restricted firearm from his friend and co-accused into a crowded night club.

82In Thavakularatnam, supra, Akhtar J. imposed a forty-month sentence on the 20-year old offender who had pleaded guilty to possession of a loaded restricted firearm. Police had followed Thavakularatnam into the Malvern Mall as a result of being provided with information that he was in possession of a firearm. As they attempted to arrest him, a violent struggle ensued, and police discovered the loaded firearm in a brown satchel he had been carrying and flung aside. At para. 23 Akhtar J. cites the following as aggravating factors:

Mr. Thavakularatnam was in possession of a loaded firearm in a busy shopping mall filled with members of the public. There was a real risk that an innocent bystander might have been seriously injured in the events which led to Mr. Thavakularatnam being restrained and arrested. Mr. Thavakularatnam was on bail for assault at the time of this offence. His attempts to escape resulted in a violent skirmish necessitating the assistance of several officers to restrain him. That struggle resulted in permanent injury to one of the officers who sought to initially apprehend Mr. Thavakularatnam.

83In Travis, supra, Howard J. imposed a sentence of two years and five months on a 29 year-old first offender – 26 at the time of the offences – for various weapons related offences including possession of a loaded prohibited firearm as well as possession of marijuana for the purposes of trafficking.

Enhanced Credit for Particularly Harsh Presentence Conditions

84In the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. R. v. Duncan, [2016] O.J. No. 5255, 2016 ONCA 754 Ont. C.A.

85In R. v. Inniss, [2017] No. 2420; 2017 ONSC 2779 (Ont. S.C.J.), M.D. Forestell J. writes (at para. 36):

I do not read the endorsement in Duncan as requiring evidence of the specific impact on the offender in every case. Where, as in the case before me, the evidence establishes that the offender was confined to a cell for extended periods of time on multiple days and denied access to fresh air for a total of over one year of his incarceration, hardship may be inferred.

86In Persad, supra. the Crown and Defence agreed that the offender was entitled to further enhanced credit for the harsh conditions of his presentence custody at the TSDC where he had been subject to numerous lockdowns i.e. approximately 47% of the time he had been in presentence custody, the majority of which were due to staff shortages, and with no suggestion that he had been responsible for any of he lockdowns.

87Justice Schreck observes (at para. 2) that the "problem of frequent lockdowns due to staff shortages has been the subject of repeated expressions of concern by the judiciary over the past four years to the effect that the conditions at the TSDC are inhumane and fail to comport with basic standards of human decency."

88He states his conclusion (at para. 3) "that the usual enhanced credit of one half to one day per day in lockdown is insufficient to promote the community's respect for the law and our shared values in the face of the Ministry's refusal to act" and thereafter sets out his reasons for so concluding.

89He opines (at para. 34), "In my view, we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state conduct. As such, it becomes relevant not only to the principles of individualization and parity, but also to the communicative function of sentencing and the overarching sentencing goal of contributing to respect for the law.

90After observing that "there is no mathematical formula for determining the appropriate credit" and "having considered the conditions of Mr. Persaud's presentence custody as well as the Ministry's persistent refusal to heed the repeated admonitions of this court that those conditions are intolerable", Schreck J. decided that Persaud was entitled to a further one and one half days of credit for each day spent in lockdown" (para. 37) i.e. in addition to enhanced credit of one and a half days for each day spent in presentence custody.

Analysis

91It is axiomatic that the determination of an appropriate sentence in any case turns on its own offence-specific and offender-specific facts.

92The aggravating factors in this case include the following:

a. The offender was in possession of a loaded restricted firearm.

b. He brought that loaded restricted firearm with him to a busy shopping mall during the afternoon hours, i.e. at a time when that place would inevitably be populated by numerous persons including infants and small children.

c. During an altercation, he produced that loaded restricted firearm from a place of concealment on his person.

93I am mindful of the qualification to the facts. Mr. Abdella does not admit to – and is not being sentenced for – discharging his firearm and thereby causing the injury to Mr. Nguyen.

94That said, the facts admitted to by Mr. Abdella engage the public safety concerns articulated by Justice Doherty in Nur. Whether or not Mr. Abdella fits within the category of "the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade" and whether or not he was "engaged in truly criminal conduct", there can be no doubt that he posed a "real and immediate danger to the public when he carried a loaded restricted weapon into a busy shopping centre during the afternoon hours.

95In mitigation, the offender pleaded guilty, thereby expressing his remorse, taking responsibility for his actions, and saving public resources in the form of the time and expense of a jury trial.

96Moreover, given the other charges he was facing at the outset of the preliminary hearing, I am satisfied that this was a plea entered at the earliest opportunity and which merits considerable credit rather than a plea that is attenuated by the apparent strength of the Crown's case.

97The offender is now 21 years of age. He was 20 at the time of the offence.

98While he has had some prior involvement with the criminal justice system – namely a finding of guilt on a charge of Driving While Disqualified for which he received a conditional discharge and probation – that offence is so unrelated to the one at bar that I give it no weight in my determination of the fit and proper sentence to be imposed, and I opt to treat Mr. Abdella as a first offender for all intents and purposes.

99The primary objectives in sentencing a youthful first-time offender are individual deterrence and rehabilitation rather than general deterrence and denunciation: Brown, supra.

100Proper consideration is to be given to the offender's youth and a first penitentiary sentence should be as short as possible: Borde, supra.

101Based upon the materials provided by the defence, I am satisfied that Mr. Abdella comes from – and is indeed an integral part of – a loving, supportive family, that he is ambitious and hard-working, and that his future prospects are promising.

102In the result, given the unique constellation of factors at play in this case and after due consideration of the range of sentences that have been imposed for this offence, I am persuaded that the sentence I impose on Mr. Abdella should be that proposed by Ms. Wyszomierska.

103The sentence will be three years or 1095 days less credit for pre-sentence custody, with (a) enhanced credit noted for the time served by the offender in pre-sentence custody, (b) an additional enhanced credit for particularly harsh presentence conditions as a result of time spent in lockdown, fixed at one day credit for each day spent in lockdown, and (c) a further credit fixed at one day for each day he has been confined during the COVID-19 virus health crisis.

104As previously noted, Mr. Abdella has been in continuous custody following his arrest since March 20, 2019, which as of today's date amounts to 379 "real" days and which at the rate of 1.5 days to 1 totals 569 days of enhanced credit.

105The total number of days that the offender has spent in lockdown is 158.

106I am satisfied that Mr. Abdella has been confined during the COVID-19 virus health crisis for a total of 35 days (i.e. since his last in-person appearance before me on February 26th last.)

107Both Copeland J. in R. v. J.S., 2020 ONSC 1710 at Para. 18 and Edwards J. in R. v. Nelson, 2020 ONSC 1728 have taken judicial notice of the COVID-19 virus and the health emergency that all Canadians have recently been living under, albeit in addressing the "greatly elevated risk posed to detained inmates from the coronavirus" in the context of assessing the tertiary ground on bail reviews.

108Along the same lines as Forestall J. did in Inniss, supra, I am prepared to infer mental and physical hardship on Mr. Abdella from (a) the fact that he has been confined during the COVID-19 virus health crisis including the greatly elevated risk posed to him from the coronavirus, as well as from (b) the consequential restrictions on activities, visitors, and programming at the TSDC, without requiring further evidence regarding those restrictions or regarding the specific impact of those hardships on him.

Result

109For the offence of possession of a loaded restricted firearm, I sentence you to three years or 1095 days in custody, less 569 days enhanced credit for the time spent in pre-sentence custody and less an additional 158 days for each day spent in lockdown and less an additional 35 days for each day spent in custody during the COVID-19 health crisis, leaving 333 days remaining to be served.

110In addition, following the custodial portion of the sentence you will be on probation for twenty-four months.

111In addition to the statutory terms, the conditions of probation will require that you:

a. Report within 2 working days of your release from custody to a probation officer, and thereafter be under the supervision of the probation officer or anyone authorized by the probation officer to assist with your supervision, and report at such times and in the manner directed by the probation officer;

b. Reside at an address approved of by your probation officer;

c. Attend for assessment, counselling and/or treatment as directed, and, sign any necessary releases to permit the probation officer to monitor your progress;

d. Not carry or possess any weapons as defined in the Criminal Code; and

e. Not attend at the Lawrence Allen Centre, 700 Lawrence Avenue West, Toronto.

112You will provide a DNA sample – the offence for which you are being sentenced being a secondary designated offence pursuant to section 487.04.

113There will be a section 109 Order for 10 years.

Dated: April 1, 2020

Justice Neil Kozloff