ONTARIO COURT OF JUSTICE
CITATION: R. v. Habibiy, 2026 ONCJ 466
DATE: 2026 06 09
COURT FILE No.: Toronto 998 22 70005660
BETWEEN:
HIS MAJESTY THE KING
— AND —
AMIN HABIBIY
Before Justice Peter N. Fraser
Heard on May 1, 2026
Reasons on Sentence released on June 9, 2026
E. Moore................................................................................................ counsel for the Crown
K. Schofield & J. Brown............................................................... counsel for the accused
[1] This is the sentencing of Amin Habibiy. On December 17, 2025, following a trial, I found him guilty of possessing a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code and carrying a concealed weapon, contrary to s. 90(1).[1]
[2] The charges arose out of an incident on August 24, 2022. Police officers were dispatched to a residence at 66 Cavell Avenue in Toronto in response to a 911 call for a possible domestic disturbance. As it turned out, the police had been conducting surveillance on 66 Cavell for some time and had confidential source information that a male inside was in possession of a firearm. They effected a warrantless entry, which I found to be authorized under the doctrine of exigent circumstances.[2]
[3] Mr. Habibiy was found inside the residence wearing a black satchel containing a Ruger Model P89 9 mm semi-automatic handgun. It was loaded with 11 rounds of 9 mm luger calibre ammunition. Mr. Habibiy was not authorized to possess the gun.
[4] The Crown seeks a sentence of 2.5 years in the penitentiary and certain ancillary orders. The defence asks me to impose a conditional sentence in the range of 18 months to 2 years, less 1 day.
Principles of Sentencing
[5] Sentencing is a highly individualized process: R. v. Lacasse, 2015 SCC 64 at para. 58. The judge must give effect to a number of different and often competing sentencing objectives. Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to protect society and, more specifically, to contribute to respect for the law and the maintenance of a just, peaceful and safe society. According to s. 718.1, the fundamental principle of sentencing is proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Parity of sentence is a corollary to proportionality. It requires that similar sentences be imposed upon similarly situated offenders for offences committed in similar circumstances: R. v. Lacasse, supra, at para. 2.
[6] Crimes involving firearms represent a grave danger to our society: R. v. Nur, 2015 SCC 15 at paras. 1, 6. The principles of denunciation and deterrence must be emphasized in these kinds of cases: R. v. Morris, 2021 ONCA 680 at para. 71. Illegal handguns are particularly dangerous given how easily they can be concealed and transported into public places where innocent people are imperiled: R. v. Hilbach, 2023 SCC 3 at para. 53. The only purpose for these weapons is to intimidate, injure and kill.
[7] Illegal firearms have been correctly described at all levels of court as a scourge on our society and the City of Toronto in particular: R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532 (C.A.) at paras. 77-78; R. v. Thavakularatnam, 2018 ONSC 2380 at para. 21. As a judge presiding in this jurisdiction, and as a member of the community, I am keenly aware of the heightened level of public concern and outright fear over the persistence of gun crime. Judicial pronouncements and statistics filed in numerous reported cases reveal that gun crime continues to plague the Toronto Region unabated: see, for example, R. v. Hinds, 2025 ONCJ 62 at paras. 68-72; R. v. Veerapen, 2025 ONSC 3322 at para. 63; R. v. Mesinele, 2023 ONCJ 28 at paras. 5, 30; R. v. George, 2023 ONCJ 298 at para. 8. In R. v. Lacasse, supra, at para. 89, the Supreme Court recognized the frequency of a type of offence in a particular region is a relevant factor on sentence.
[8] The Courts must demonstrate in clear terms that our society will not tolerate the use of firearms in our communities. Exemplary sentences are often required to deter those who would engage in this kind of conduct and to protect the lives of citizens: R. v. Doucette, 2015 ONCA 583 at paras. 59-60; R. v. Danvers, supra, at paras. 77-78; R. v. Jones, 2012 ONCA 609 at para. 12.
[9] Mr. Habibiy has no criminal record. The principle of restraint, which is codified in s. 718.2(d) and (e) of the Code, takes on particular significance in the context of first offenders. The sentence imposed on a first offender should be as short as possible and be tailored to the individual circumstances of the accused: R. v. Sousa, 2023 ONCA 100 at para. 37; R. v. Al-Akhali, 2025 ONCA 229 at para. 72.
[10] Furthermore, Mr. Habibiy was 22 years old when he committed these offences and he is 26 years old now. I consider him a relatively youthful first offender. For “youthful” first offenders there can be a reduced moral culpability or harsher impact resulting from sentence due to their early stage in life: R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (C.A.) at para. 23 and R. v. Q.B., 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (C.A.) at para. 36. In R. v. Habib, 2024 ONCA 830, the Court of Appeal held as follows at paragraph 31:
Sentencing judges must also respect several other settled principles when sentencing youthful offenders for their first criminal offence. First, they must practice restraint. This requires them to avoid imprisoning young adults when possible. When imprisonment is necessary, it also requires them to make the sentence as short as possible to achieve the principles and objectives of sentencing. See Priest, at pp. 544-546. Second, they must prioritize rehabilitation as the paramount sentencing objective. Where necessary, they must also prioritize specific deterrence. See Brown, at paras. 5 and 10. Third, they cannot focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation and specific deterrence. See Borde, at para. 36; Brown, at para. 7. Fourth, they must consider young adults' reduced moral culpability and the harsher impact that incarceration causes them due to their stage of life.
[11] I must also consider whether there is a need to separate Mr. Habibiy from society in order to protect the public and the need to promote in him a sense of responsibility for the harm he has done. I also consider the principle of rehabilitation, whereby I must consider Mr. Habibiy’s efforts to this point and his potential to change and become a law-abiding member of society in the future.
Family Separation
[12] I must consider the potential consequences for Mr. Habibiy’s family members if he were to be incarcerated. The defence filed a report entitled, Impact of Race and Culture Assessment for Mr. Amin Habibiy and several letters of support written by family members. These materials reveal that Mr. Habibiy is a source of support to his parents, particularly his mother who faces health problems. He helps his parents navigate the medical system, as their command of English is limited. While there are other family members who would be positioned to help them with some of these challenges, I accept that Mr. Habibiy’s incarceration would negatively impact them.
[13] It is proper for courts to prevent and mitigate adverse consequences to family members as much as possible: R. v. Habib, supra, at paras. 41-50; R. v. D.B., 2025 ONCA 577 at paras. 12-14. The separation of family members must be taken into account in deciding whether to incarcerate and, where incarceration is necessary, in determining the length of sentence. That being said, courts must not lose sight of the fact it is the offender who has caused the need for criminal sanctions. The consequences for family members must not overwhelm the other principles of sentencing: R. v. Dent, 2023 ONCA 460 at paras. 124-126.
[14] These consequences should not lead the court to excuse or overlook the harm done, the need to protect society or the need for denunciation and deterrence. Nor can these concerns lead to the imposition of a disproportionate sentence below the acceptable range. The Court is required to “preserve the family as much as possible” within these limits: R. v. Habib, supra, at para. 44.
Aggravating Factors
[15] I consider the following aggravating factors on sentence. First, the firearm was loaded. This is a more serious form of this offence, which can also be committed by possessing a firearm with ammunition that is not loaded into the weapon. Mr. Habibiy possessed a handgun that was loaded with 11 rounds of ammunition and was ready to fire: R. v. Yizhak, 2026 ONCA 100 at paras. 30-32. I also consider the fact that Mr. Habibiy possessed a semi-automatic handgun. This is a particularly dangerous type of handgun, capable of firing bullets in rapid succession, with a single pull of the trigger discharging each round.
[16] It is a further aggravating factor that the firearm was being carried by Mr. Habibiy on his person. This factor is reflected, in part, in the charge of carrying a concealed weapon contrary to s. 90(1) of the Criminal Code. The weapon was not stored in a secure location. It was concealed in a satchel on Mr. Habibiy’s body, and it was readily accessible. Furthermore, he possessed the firearm in a residential townhouse complex. While he was not carrying the firearm in a public space, which would have been an even more dangerous scenario, there was one person with him in the townhouse unit, and numerous other people would be expected to be nearby in this dense residential environment: R. v. Yizhak, supra, at para. 31.
[17] The Crown argued that it was further aggravating that there were children referred to on the lease for the townhouse unit. None of the police witnesses testified to seeing any children in the unit at the time of the arrest. I am not satisfied the presence of children was proved beyond a reasonable doubt and do not consider this an aggravating factor.
[18] I also agree with defence counsel that the fact Mr. Habibiy possessed the weapon during a domestic dispute was not established in evidence to the standard of proof beyond a reasonable doubt. This information entered the trial record as hearsay that informed the actions of the police officers but was not otherwise proved as an aggravating factor on sentence.
[19] Similarly, I have not considered the suggestion that Mr. Habibiy possessed the weapon together with illegal drugs. While references to drugs in the satchel formed part of the trial record, it was never established what the substances were, and charges laid under the CDSA were previously withdrawn at the request of the Crown.
Mitigating Factors
[20] I consider the following mitigating factors on sentence. Mr. Habibiy has no criminal record. He is a relatively youthful first offender. As stated above, I must consider all alternatives to custody, and if imprisonment is necessary I must make the sentence as short as possible while still giving effect to the principles and objectives of sentencing.
[21] I consider that Mr. Habibiy has the support of his family, as revealed through the letters of support filed on his behalf. I also accept that he has insight into his offending conduct. And I would observe he has complied with restrictive terms of bail for a significant period of time. All of these factors are positive indicators with respect to rehabilitation.
[22] Mr. Habibiy spent 14 days in pre-sentence custody. Pursuant to the Supreme Court’s decision in R. v. Summers, 2014 SCC 26, I award him credit at the rate of 1.5 to 1 and will reduce his sentence by 21 days. He also spent approximately three years and nine months subject to restrictive terms of bail. I return to this issue later in these reasons.
[23] Finally, I find that aspects of Mr. Habibiy’s upbringing and life experience have some limited bearing on his level of moral responsibility in connection with this offence. I turn next to a more detailed analysis of this question.
Race, Culture and Social Context
[24] Counsel for Mr. Habibiy submits that the decision in R. v. Morris, 2021 ONCA 680, applies to this case. In Morris, the Court of Appeal considered the implications of social context evidence, specifically anti-Black racism, to the sentencing process. The Court stated as follows, at paragraph 1 of the decision:
It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis.
[25] Mr. Habibiy is not Black. He was born in Canada to parents who immigrated from Afghanistan and describes himself as a follower of the Muslim faith. I have not been referred to any similar pronouncement to the one above by an appellate court (or any other) regarding people of Afghani descent or Muslim faith. I would also observe that the Court of Appeal in Morris was concerned with ameliorating the well-established effects of systemic anti-Black racism within the justice system, including the adversarial and aggressive nature of policing of Black communities and the over-representation of Black-Canadians within the prison population: R. v. Morris, supra, at paras. 39, 103, 123, 129, 175 & 180.
[26] I do not believe the decision in Morris can simply be said to apply to Mr. Habibiy’s case. There are principles of sentencing articulated in Morris which have application to sentencing more broadly. But the Court of Appeal expressly framed the question in that case, at paragraph 1, as pertaining to anti-Black racism:
Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing.
[27] In the present case, defence counsel filed a report entitled, Impact of Race and Culture Assessment for Mr. Amin Habibiy. The report was authored by Dr. Patricia Duhaney. I am aware of several reported decisions in which IRCAs written by Dr. Duhaney were relied upon by the courts. Notably, they all related to Black offenders. The report in this case makes some general assertions about the experiences of Muslim people in Canada, including the following:
Public institutions have recognized that Islamophobia and anti-Muslim discrimination remain ongoing concerns in Canada. The Standing Senate Committee on Human Rights (2023) has documented that Muslims in Canada continue to experience stereotyping, suspicion, and differential treatment across social settings, including schools, workplaces, and public spaces.
[28] I do not doubt that racism against Afghan-Canadians or Muslims exists in some segments of Canadian society. However, I am not prepared to find an equivalence between the shared experiences of those communities with the experience of Black people in Canada or the Greater Toronto Area. I do not believe the record before me can substantiate that. And I am candidly skeptical that I am qualified to draw those kinds of sweeping conclusions about entire populations. I am also not able to conclude on this record that Afghan-Canadians or Muslims are over-represented within the prison population, or are the subject of aggressive police practices as a group.
[29] I am not aware of any case in which the Court of Appeal has applied Morris to an offender who was not Black. In R. v. Shirizadeh, 2025 ONCA 676 the Court of Appeal upheld a penitentiary sentence for serious firearms-related offences committed by a Muslim offender, who was born in Iran.[3] The Morris decision is referenced for the proposition, contained at paragraph 68, that “Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society.” Despite this reference, neither the sentencing judge at first instance, nor the Court of Appeal upon review, made any reference to social context, systemic racism, or the methodology set out in Morris.
[30] In R. v. Faroughi, 2024 ONCA 178 the Court of Appeal varied the sentence imposed by the trial judge upon an offender who was born in Iran. Again, Morris was referred to for its articulation of a general proposition of law, namely proportionality, but was not otherwise applied.
[31] In R. v. Habib, supra, on which the defence relies, the Court of Appeal allowed an appeal against sentence for a young man who was born in Afghanistan. The offender had plead guilty to possessing a loaded prohibited firearm, which he brandished at a pizza store employee. Evidence of his experiences with economic disadvantage, homelessness and violence in his community were front and centre on appeal. For example, the Court observed the following, at paragraph 11:
The appellant was born in 2001 in Afghanistan, a country which was then torn by armed conflict. He experienced poverty, hunger, and homelessness as a child, and was separated from his father, who left Afghanistan to build a better life for his family and came to Canada. In 2013, at the age of 12, the appellant immigrated to Canada along with his mother and siblings to join his father, hoping for a better, safer, and more secure life. Unfortunately, his family continued to experience severe financial hardship, poverty, and insecurity upon their arrival in Canada. Because his father only qualified for minimum wage jobs, the family's eight members had to live in a cramped two-bedroom apartment in a subsidized housing community. His parents experienced adjustment issues due to language challenges and, as time went on, their medical issues limited their ability to provide for the family. All too often, the appellant and his siblings went without necessities, and they sometimes attended school hungry or without proper clothing. In addition, the housing project that his family lived in was marked by violence. Months after the appellant arrived in Canada, there was a shooting death outside of his residence, and not too long after, another shooting occurred at his school.
[32] Despite the importance of the social context evidence to the appeal, the Court made no reference to Morris. The decision was written by Tulloch C.J.O., who was on the panel of the Court of Appeal that decided the Morris case.
[33] It is, in my view, incorrect to say that Morris governs the sentencing, or applies equally, to offenders from other racial backgrounds. It is more correct to relate the reasoning in Morris to offenders from other racial or ethnic backgrounds in the same way the Court of Appeal expressed the relationship between Gladue cases and those involving Black offenders. The Court held, at paragraph 13, as follows:
[T]he Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.
[34] As stated above, there are principles of sentencing expressed in Morris that have application to all accused persons: R. v. Morris, supra, at para. 12. And an offender’s background and personal circumstances have always been relevant to the sentencing process: see, for example, R. v. Morris, supra, at para. 88; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 69; R. v. Q.B., 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (C.A.); R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (C.A.).
[35] In this case, the report of Dr. Duhaney, together with the letters filed by the defence, provides substantial information about Mr. Habibiy’s background. These materials help me to understand the person I must sentence. The report, in particular, sets out some of the challenges Mr. Habibiy has faced, and helps to contextualize the offence before the court.
[36] Mr. Habibiy reports exposure to conflict in the home, specifically referring to verbal and physical violence directed by his father toward his mother. Mr. Habibiy has experienced economic disadvantage and exposure to criminality in his community. He characterizes the Scarborough neighbourhoods in which he grew up as environments where violence, drug activity, and police presence were common features of daily life. According to the written submissions of his counsel, Mr. Habibiy lost three friends to acts of violence between 2016 and 2019.
[37] He reports experiencing racism beginning at a young age, particularly in the period following September 11, 2001. He was called derogatory names and felt a sense of exclusion. He described feeling judged on the basis of assumptions tied to his identity rather than his character.
[38] These circumstances reveal a challenging upbringing and a range of options that may have been limited by socio-economic disadvantage. This background does have a limited bearing on my evaluation of Mr. Habibiy’s level of moral blameworthiness. The Court of Appeal observed in Morris, at paragraph 75:
[A]n offender's life experiences can certainly influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances. Those life experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system.
[39] While I accept Mr. Habibiy experienced some societal disadvantages, I am not able to conclude on this record that they flowed from systemic racism in society or within the criminal justice system. I note, also, that in Morris, the Court held that "some connection must be shown between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue": Morris, supra, at para. 97. In this case, Mr. Habibiy did not assert a specific reason or explanation for his decision to arm himself with a deadly weapon. Dr. Duhaney suggests that Mr. Habibiy’s exposure to crime and police surveillance may have contributed to a sense that caution and hypervigilance were necessary. I am not satisfied this amounts to an explanation for Mr. Habibiy’s possession of the firearm, particularly where he has not made that claim himself.
[40] To be clear, it is not a direct connection that is required. In a broader sense, I find the social context evidence is relevant. I am satisfied that an indirect connection exists between the offence and Mr. Habibiy’s background, economic challenges, exposure to racism and violence in his community. However, since the connection is somewhat distant and indirect, the mitigating effect is accordingly more limited.
Range of Sentence
[41] The governing authorities affirm that possession of a loaded prohibited or restricted firearm ordinarily requires a penitentiary sentence to reflect denunciation and deterrence: R. v. Smith, 2023 ONCA 620 at para. 7; R. v. Morris, supra, at paras. 71, 151. In R. v. Nur, supra, at paragraph 82, the Supreme Court provided the following guidance:
82 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 [page815] merit under the sentencing provisions of the Criminal Code.
[42] Mr. Habibiy’s case stands in the middle tier, where the offence is a truly criminal act that poses a danger, (as opposed to a licencing violation committed by an otherwise responsible gun owner), but is not done in furtherance of some other criminal enterprise such as drug trafficking. As Doherty J.A. observed in R. v. Nur, 2013 ONCA 677 at paragraph 50, the possession of a loaded prohibited or restricted firearm is criminal, "even if it is entirely untainted by any other unlawful activity."
[43] Subsequent cases from the Court of Appeal suggest that, in the normal course, the sentencing range begins near the low end of the penitentiary range for first-time offenders convicted of possessing a loaded prohibited firearm in circumstances where there is no other criminal activity and extends upward from there: R. v. Kulatheeswaran, 2026 ONCA 128 at para. 16; R. v. Burke-Whittaker, 2025 ONCA 142 at para. 38; R. v. Mohiadin, 2021 ONCA 122 at paras. 12-15; see, also, R. v. Johnson, 2022 ONSC 2688 at para. 38; R. v. Logan, 2024 ONSC 1969 at paras. 19-26.
[44] There will be cases where a conditional sentence can be imposed: R. v. Desmond-Robinson, 2022 ONCA 369 at para. 13; R. v. Morris, supra, at paras. 124-131. These cases often involve a guilty plea, strong mitigating factors, or personal circumstances that significantly reduce moral blameworthiness or substantially intensify the impact of incarceration: R. v. Kulatheeswaran, supra, at para. 16; R. v. Burke-Whittaker, supra, at paras. 38, 50-51, per Favreau J.A., and at para. 136, per Hourigan J.A. The defence referred me to several cases in which conditional sentences were imposed in connection with a s. 95 offence. I do not intend to analyze them all in detail here. Suffice it to say that these cases constitute specific examples of the more general propositions just stated.
[45] There are differences between the cases cited by the defence and the present matter. For example, many of those cases involved guilty pleas: see, for example, R. v. Yogo, 2023 ONSC 4144; R. v. Papilota, 2024 ONSC 4065; R. v. Warraich, 2026 ONSC 1106. Some involved sentence reductions on account of Charter breaches: R. v. Collins, 2023 ONSC 5768; R. v. Fareed, [2024] O.J. No 4161. Others represented direct applications of the Morris decision and considerations of the implications of anti-Black racism to offenders who were Black: R. v. McLarty-Mathieu, 2022 ONCJ 498; R. v. Beharry, 2022 ONSC 4370; R. v. Stewart, 2022 ONSC 6997.
[46] No one prior case is determinative of the sentence to be imposed in this case. And sentencing ranges are not straight-jackets: instead, they represent the distillation of sentences imposed in the past, the direction of the appellate courts, and serve in any given case as guides for the application of all the relevant principles and objectives: R. v. Friesen, 2020 SCC 9 at para. 36. There will be situations that call for a sentence outside the existing range: R. v. Lacasse, supra, at para. 58. Each case must be determined on its own facts.
Restrictive Terms of Bail
[47] Mr. Habibiy has spent a great deal of time subject to restrictive terms of bail. He has been on house arrest with GPS monitoring for 1376 days, or approximately three years and nine months. There has been an exception when Mr. Habibiy is in the direct company of his surety. In R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (CA), the Court of Appeal held that restrictive terms of bail must be taken into account on sentencing. The following principles were set out at paragraph 37 of the decision:
*Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
*As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
*The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
*The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
*The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
*Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[48] The bail in this case was a strict one. However, there is limited evidence of the actual impact of the bail conditions on Mr. Habibiy. The report of Dr. Duhaney suggests, “these conditions have limited his mobility, independence, and ability to engage with employment, schooling, or the broader community.” This is a very general statement that goes little beyond what would be inferred from the existence of the bail conditions in the first place. There is no evidence of specific educational or employment opportunities that were interfered with by the house arrest and I would note that no attempts were made to vary the terms of the bail. I am advised that no such requests were received by the Crown. All of that being said, I am prepared to infer that the house-arrest was a meaningful restriction of Mr. Habibiy’s liberty and to grant him some credit.
[49] As set out above, there is no specific ratio or formula to be applied. In Downes itself, 5 months credit was given for the 18 months spent on house arrest bail. In R. v. Ijam, 2007 ONCA 597, at paragraphs 23-37, the Court of Appeal observed that “bail is not jail” and emphasized there is no equivalence between them. The specific terms of bail will vary widely from case to case. And their actual impact on the accused will vary too, depending on the nature of their residence, family structure, personal character, relationships, employment or educational opportunities, and other endeavours: R. v. Joseph, 2020 ONCA 733 at para. 108. These variations are reflected in the caselaw provided by both counsel: see, for example, R. v. Marfo, 2020 ONSC 5663 at paras. 57-58; R. v. Mok, [2017] O.J. No. 3758 at para. 6; R. v. Storey, 2021 ONSC 1760 at paras. 73-82.
[50] While Downes credit is generally conceptualized as a mitigating factor, it is not necessarily inappropriate to grant numerical credit "so long as it does not skew the calculation of the ultimate sentence": R. v. Lowe, 2025 ONCA 475, at para. 17; R. v. Joseph, supra, at paras. 107-8, 112-4. Some judges choose to achieve that mitigation by granting a “Downes credit” that is set off against the sentence that would otherwise have been imposed. Other judges choose to factor the punitive impact that bail conditions have had on the offender into their overall determination of a fit sentence. Neither approach is in error: R. v. C.C., 2021 ONCA 600 at para. 5.
[51] Given the lengthy period of time spent on bail in this case and the significant impact of the restrictive terms of release on the sentence in this case, I choose to attribute a specific numeric deduction to account for it. I will grant Mr. Habibiy the equivalent of 10 months credit against the sentence I would otherwise impose.
[52] Counsel for Mr. Habibiy submits that Downes credit can reduce the appropriate sentence in this case into the reformatory range, and thereby make a conditional sentence available in law. I have some difficulty with that submission, as it seems to conflict with the Supreme Court of Canada’s decision in R. v. Fice, 2005 SCC 32. In that case, the Court held that deductions for pre-sentence custody cannot make a conditional sentence available in cases that would otherwise attract a penitentiary term. There is conflicting authority as to whether the same reasoning applies to Downes credit.
[53] Some judges have held that Downes credit can make a conditional sentence available where a penitentiary sentence would otherwise have been imposed: R. v. Rose, 2023 ONSC 7221 at paras. 25-31; R. v. Logan, supra, at endnote 1.[4] Other judges have found that it cannot: R. v. Sansalone, [2011] O.J. No. 5774 (S.C.) at paras. 69-71; R. v. Palmer, 2024 ONSC 4339 at para. 103; R. v. King-Joseph, 2024 ONCJ 280 at para. 50. I tend to agree with the reasoning in this latter group of cases. It is difficult to see how a restrictive bail can unlock a more lenient sentence for an accused person that the far more punitive experience of pre-sentence custody cannot. That being said, I need not resolve this issue here, as either approach leads me to the same conclusion on the facts of this case.
The Fit Sentence
[54] I have carefully considered the applicable sentencing principles in this case. I have weighed the aggravating and mitigating factors in the balance. I have considered Mr. Habibiy’s status as a youthful first offender. I have considered the family separation consequences and attempted to “preserve the family” to the extent possible while still giving effect to all the relevant sentencing principles. I have evaluated the impact of Mr. Habibiy’s background and personal challenges as a Muslim Canadian of Afghani descent. I have considered the impact of the restrictive terms of bail, while bearing in mind the Court of Appeal’s admonition that Downes credit should not “skew the calculation of the ultimate sentence.”
[55] I conclude that the appropriate sentence in this case, absent deductions for pre-sentence custody and restrictive bail terms would be 2 years, 3 months in the penitentiary. This sentence falls toward the lower end of the range, but fairly balances the various sentencing considerations in this case.
[56] This sentence will be reduced to account for the 14 days Mr. Habibiy spent in pre-sentence custody. I will give him credit for 21 days, pursuant to R. v. Summers.
[57] I will grant an additional 10 months credit for the time spent on house arrest bail, pursuant to R. v. Downes. The remaining sentence to be served is 16 months and 1 week.
[58] I have considered and rejected a conditional sentence in this case. Assuming that a conditional sentence is available in law as a result of the Downes credit, I would still decline to impose one. In my view, a conditional sentence would not be consistent with the purposes and principles of sentencing in the circumstances of this case. There is no one factor that is determinative. It is, rather, my evaluation of all the factors and principles referred to in this decision, considered wholistically, which leads me to this conclusion.
[59] The remaining sentence of 16 months and 1 week will be made concurrent on both charges and will be served in a provincial reformatory.
[60] There will be a weapons prohibition for 10 years, pursuant to s. 109 of the Criminal Code.
[61] A DNA order is made for the two secondary designated offences.
[62] Forfeiture of the firearm and ammunition will be ordered.
Released: June 9, 2026
Signed: Justice Peter N. Fraser
1Pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, I stayed the five remaining charges under the following sections of the Criminal Code: 91(1), 91(2), 92(1), 92(2) and 86(1).
2The reasons for judgment are reported at R. v. Habibiy, 2026 ONCJ 458.
3The offender’s background is identified in the trial-level decision, which is reported at R. v. Shirizadeh, 2022 ONSC 5321, at para. 40.
4In R. v. Logan, supra, reference is made to R. v. Fabbro, 2021 ONCA 494. While that case can be read as upholding a conditional sentence in which Downes credit served to reduce the sentence into the reformatory range, this was not the legal point at issue in the case, nor was R. v. Fice mentioned, and I do not read the decision as binding authority on this point.