COURT OF APPEAL FOR ONTARIO

DATE: 20200302 DOCKET: C67285

Miller, Fairburn and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Hamza Badrujaman Mohamed Respondent

Counsel: Gregory Furmaniuk, for the appellant Catriona Verner, for the respondent

Heard: January 31, 2020

On appeal from the sentence imposed on July 8, 2019 by Justice Heather L. Katarynych of the Ontario Court of Justice.

Fairburn J.A.:

Overview

[1] The complainant stayed at the respondent’s residence for a few days and noticed that he had a gun. The respondent later accused the complainant of stealing money from his home. He intimated that if she did not give the money back, then he would harm her boyfriend. The complainant became fearful and decided to report the matter to the police.

[2] The respondent was charged on two separate Informations with numerous offences. While he was “prepared to enter a plea to whatever counts the Crown [was] seeking he plead to”, the parties could not agree upon a joint disposition. After the respondent entered guilty pleas to ten offences, including weapon and drug trafficking offences, the Crown asked for a global penitentiary sentence of four years’ custody less enhanced credit of 437 days for presentence custody. The respondent asked for a global reformatory sentence of two years less a day, less 437 days credit. He asked that he be permitted to serve his sentence under a conditional sentence order.

[3] The sentencing judge agreed with the defence position. The respondent was credited with the equivalent of 437 days of presentence custody (291 real days credited on a 1.5:1 basis.) This left a net sentence of 292 days to serve under a conditional sentence order, followed by two years of probation.

[4] The Crown seeks leave to appeal from sentence and asks that this court impose a global four-year sentence. The Crown accepts that two periods of time should be removed from that sentence: (a) the 437 days of presentence custody; and (b) the period of time that has already been served under the conditional sentence order, 207 days as of the date this matter was argued. The Crown argues that the sentencing judge erred by:

(a) granting a conditional sentence for possessing cocaine for the purpose of trafficking;

(b) imposing a demonstrably unfit sentence; and

(c) overemphasizing the respondent’s rehabilitative prospects in subordination of the sentencing principles of denunciation and deterrence.

[5] For the reasons that follow, I would dismiss the appeal in substance. I would allow the appeal only to the extent necessary to render the sentence imposed a legal one. The length of the sentence remains the same.

Was an illegal sentence imposed?

[6] While the sentencing judge erred in law by imposing a conditional sentence for the offence of possessing cocaine for the purpose of trafficking, the error did not have an impact on the overall sentence.

[7] The respondent was arrested while driving his car. A search incident to arrest revealed a loaded revolver in the vehicle, a few bullets in his pocket and $337 cash. Search warrants were then executed on his car and home, revealing around 40 grams of cocaine, over 400 grams of marijuana, two grams of hashish, drug paraphernalia, brass knuckles, and other ammunition (both live and spent).

[8] There were two Informations before the court. The first Information, what I will refer to as the “Criminal Code Information”, contained numerous counts. The respondent pled guilty to six of those counts: uttering a death threat, unauthorized possession of a firearm, possession of a loaded firearm, two counts of careless storage of ammunition, and possession of brass knuckles. The second Information, what I will refer to as the “CDSA Information”, also contained numerous counts. The respondent pled guilty to four possession-related counts: possession of the proceeds of crime, and possession of cocaine, marijuana, and hashish for the purpose of trafficking.

[9] The appellant’s first argument focuses upon the suggestion that the sentencing judge erred by imposing a conditional sentence on the possession of cocaine for the purpose of trafficking count. The appellant argues that this is an illegal sentence. I agree that a conditional sentence is not available for this offence.

[10] Section 742.1 (c) of the Criminal Code, R.S.C. 1985, c. C-46, precludes a conditional sentence for offences that are prosecuted by way of indictment and for which the maximum term of imprisonment is 14 years or life:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if …

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life … [emphasis added].

[11] Possession of cocaine for the purpose of trafficking is a straight indictable offence and is punishable by up to life imprisonment: Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(3)(a). Accordingly, there is no dispute that the maximum punishment available for the cocaine offence precluded the imposition of a conditional sentence.

[12] The dispute here is whether the sentencing judge did as the appellant suggests. The appellant argues that it is clear on the record that the respondent received a conditional sentence in relation to what I refer to as the “cocaine count”. The appellant contends that this error means that the sentencing judge’s decision is owed no deference and it falls to this court to determine the appropriate sentence.

[13] The respondent argues that it was not the intention of the sentencing judge to impose a conditional sentence in relation to the cocaine count. While it may appear from the conditional sentence order that one was imposed on all counts, including the cocaine count, this reflects nothing more than an administrative error by the person filling out the paperwork after sentence was imposed. The respondent points to a handwritten endorsement found on the CDSA Information in support of this argument: “291 days of real custody @ 1.5 = 436.5 (437 days)”. The respondent suggests that this endorsement makes clear that, while the presentence custody was not specifically distributed across counts, at least a portion of it was assigned to the cocaine count.

[14] As any period of presentence custody could have fulfilled the need for a custodial disposition on the cocaine count, the respondent says that this endorsement should assuage any concern over whether a conditional sentence was imposed on that count.

[15] Four things are clear from the reasons for sentence and dialogue between the sentencing judge and counsel in this case. First, the sentencing judge was intent on imposing a global sentence of two years less a day. Second, she was also intent on removing 437 days of enhanced presentence custody from that total. Third, she was intent on ordering that the 292 remaining days be served as part of a conditional sentence order. And, fourth, she was intent on placing the respondent on two years of probation after he completed his conditional sentence.

[16] The transcript of proceedings demonstrates that the sentencing judge struggled with how to distribute the sentence across counts. She repeatedly asked for the assistance of counsel on this point. In discussing the matter, no one adverted to the fact that a conditional sentence was not available for the cocaine count.

[17] I do not agree with the respondent’s suggestion that the endorsement, assigning all presentence custody to the counts on the CDSA Information, answers the concern raised by the appellant on appeal. While that endorsement seems to suggest that the entire 437 days of presentence custody was assigned to those counts, the CDSA Information is equally clear that a 292-day conditional sentence was imposed on the cocaine count.

[18] I agree with the appellant that the sentencing judge erred by imposing a conditional sentence on the cocaine count. I disagree, though, that it makes any difference to the overall disposition of this appeal.

[19] Sentencing judges are to be granted a wide berth when it comes to determining an appropriate disposition. They enjoy a benefit that appeal judges do not. They sit in an especially privileged position from which to observe the dynamics of any given case, placing them in the best position to come to factual conclusions and consider those conclusions against the relevant objectives and principles of sentencing.

[20] Accordingly, deference is appropriately given to sentencing judges, even where they deviate from a range of sentence. Unless the judge makes “an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11 (emphasis added), see also para. 44.

[21] The sentencing judge made a clear error of law by imposing a conditional sentence in relation to the cocaine count. The question is whether the error of law had “an impact on the sentence.” It did not.

[22] At the sentencing hearing, the parties were agreed that a six-month sentence would properly accommodate the drug offences, including the cocaine count. As the respondent had already served the equivalent of 437 days of presentence custody, he had well outstripped the six months that both parties had agreed upon.

[23] The sentencing judge could have stayed true to her stated objectives and adhered to the joint position of a six-month sentence on the cocaine count by simply imposing a sentence of 180 days of presentence custody plus two years’ probation on the cocaine count. By approaching the matter in that way, all illegality would have been avoided and, for all practical purposes, the sentence would have remained the same.

[24] Accordingly, in my view, the error had no impact on the sentence imposed. Although I would correct the illegality arising from the issue raised on appeal, I would not use the error as a basis upon which to set aside the principle of deference.

Is the sentence demonstrably unfit?

[25] The appellant also argues that the two-years less a day sentence, conditional or otherwise, was demonstrably unfit. I disagree.

[26] The appellant points to numerous aggravating factors in this case that render the sentence unfit. The appellant stresses the inherently and indisputably dangerous nature of loaded firearms and the need for exemplary sentences. The appellant also correctly points to the “toxic combination” of guns and drug trafficking: R. v. Wong, 2012 ONCA 767, at paras. 11-13. The appellant further points to the fact of a death threat in this case, the presence of multiple drugs, the victim impact, the drug paraphernalia and the fact that the respondent’s young child was living in the home where he kept his drugs and where his firearm had been seen.

[27] These are undoubtedly serious aggravating factors that would normally attract a much higher sentence than the one imposed in this case, certainly into the penitentiary range. Indeed, in my view, when all of the respondent’s conduct is considered as a whole, the sentence imposed in this case falls below the range. Even so, I would not interfere with the sentence imposed.

[28] Sentencing is not a purely mathematical exercise with floors below which and ceilings above which the sentence cannot go. Sentencing ranges are guidelines, but not hard and fast rules: Lacasse, at para. 60; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44. As Wagner J. (as he then was) noted in Lacasse, at para. 58, there will “always be situations that call for a sentence outside a particular range”. Those situations will sometimes arise from the sentencing judge’s impressions and findings regarding the unique circumstances of the case, including the uniqueness of the individual who is being sentenced.

[29] I would defer to the sentencing judge’s careful exercise of discretion in this case. She was fully aware of the range of sentence, specifically noting that most cases involving possession of a loaded restricted firearm would attract a sentence in the three- to five-year range. She went to great lengths to explain why it was appropriate to depart from the range in this case.

[30] The reasons for sentence are detailed and lengthy, spanning over 300 paragraphs. The sentencing judge had careful regard to the seriousness of the respondent’s crimes. At the same time, she emphasized that he was a youthful first offender (25 years old at the time he committed the offences), had pled guilty and expressed deep remorse for his actions.

[31] Most importantly in the sentencing judge’s view, the respondent had demonstrated his keen desire to rehabilitate himself. According to the sentencing judge, during his almost ten months in presentence custody, the respondent had engaged in a sustained effort to better himself. Among other things, she pointed to the certificates of achievement obtained by the respondent in the following programs and courses, which he completed during his time in custody leading up to the guilty pleas:

(a) a creative writing program with over ten weeks dedicated to restorative themes, including writing about parenting, mental health, forgiveness and accountability;

(b) effective parenting lessons;

(c) a five-week course on music production;

(d) different drug-related courses; and

(e) an anger management rehabilitative group session entitled “Change is a Choice”.

[32] The respondent had no disciplinary problems in the institution and, in fact, had gained so much respect from the custodial institution that he was granted specific privileges to have contact with his spouse. As noted by the Acting Program Leader in the education program at the Toronto South Detention Centre, the respondent had “shown that he is a determined, capable and engaging participant, attends program regularly, completes assignments, takes initiative in his learning and asks for help when needed.” The respondent had written an eight-hour exam toward earning his high school equivalency certificate. The Acting Program Leader stated in a letter, “it is a pleasure to work with Hamza and I wish him continued success as he pursues his educational goals.”

[33] These are only some examples of what the sentencing judge reviewed in her reasons for why she held out great hope for the respondent’s future prospects. While she did not diminish the seriousness of the offences or the victim impact in this case, the sentencing judge balanced those factors against the clear rehabilitative prospects of this relatively young, first-time offender. The sentencing judge saw that the respondent had taken unusual steps to turn his life around and she was prepared to accept that he had good prospects for continuing on that path. The strong community support for the respondent only strengthened the sentencing judge’s conclusion in this regard. There was nothing wrong with sending a message to this young man, who had clearly demonstrated that he was trying to right his wrong and alter his path, that those steps had not gone unnoticed and were to be encouraged: R. v. Ghadban, 2015 ONCA 760, at para. 23.

[34] In light of all of the circumstances in this case, I do not agree that the sentence is demonstrably unfit.

Did the sentencing judge err by overemphasizing the respondent’s mitigating circumstances?

[35] The appellant also argues that the sentencing judge erred in principle by overemphasizing the respondent’s rehabilitative prospects. The appellant points to two main problems with the sentencing judge’s approach.

[36] First, the appellant argues that the sentencing judge “subordinated denunciation and deterrence contrary to law”, making these sentencing principles “ancillary” benefits to a sentence that was geared toward rehabilitation.

[37] Largely for the reasons already given, I do not agree with this characterization of the sentencing judge’s reasons. She was alive to the importance of denunciation and deterrence as critical principles to be applied in this sentencing context, even noting at one point that “in general” incarceration is “preferable where denunciation and deterrence are especially important.” On another occasion, she explicitly noted that specific and general deterrence were “core consideration[s] in this case”.

[38] Given the respondent’s age, his guilty plea, the absence of a criminal record and the strong evidence of his motivation to become a law-abiding member of the community, and a good father and partner, there was nothing wrong with the attention the sentencing judge paid to rehabilitation, particularly given that she did not lose sight of the importance of the principles of deterrence and denunciation.

[39] Second, the appellant contends that, even if it were permissible to emphasize rehabilitation in this case, the sentencing judge was wrong to view the respondent’s rehabilitative prospects in such a positive light. As the appellant put it, good behaviour under the “watchful eye of the justice system” should be viewed with caution.

[40] It was for the sentencing judge to make a determination as to the genuineness of the respondent’s desire to improve himself. It is not for this court to reconsider her findings of fact in that regard.

[41] I see no basis upon which to interfere with the sentence on this ground.

Conclusion

[42] I would grant leave to appeal and grant the appeal, but only to the extent of making the sentence a legal one, which requires attribution of the presentence custody to specific counts. I would do this in a way that remains true to the global sentence imposed by the sentencing judge.

[43] I would amend the sentence as follows:

(a) I would set aside the general endorsement on the CDSA Information that says: “291 days of real custody @ 1.5 = 436.5 (437 days)”.

(b) On count 1 of the CDSA Information, possession of cocaine for the purpose of trafficking, I would set aside the conditional sentence and impose a sentence of 120 days of presentence custody, to be credited at 180 days, plus two years’ probation on the same terms as previously set out.

(c) On count 5 of the Criminal Code Information, the possession of a loaded firearm count, in addition to the 292-day conditional sentence already imposed, I would note an additional 171 days of presentence custody to be credited at 257 days.

[44] The sentence, including all ancillary orders, will remain the same in all other respects.

Released: “B.W.M.” March 2, 2020 “Fairburn J.A.” “I agree. B.W. Miller J.A.” “I agree. Thorburn J.A.”