Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210226 DOCKET: C68130

MacPherson, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Abdirahman Mohiadin Appellant

Counsel: Abdirahman Mohiadin, acting in person Danielle Robitaille, appearing as duty counsel Hannah Freeman, for the respondent

Heard: February 8, 2021 by video conference

On appeal from the sentence imposed on January 10, 2020 by Justice Sean F. Dunphy of the Superior Court of Justice, with reasons reported at 2020 ONSC 47.

Reasons for Decision

[1] The appellant, Abdirahman Mohiadin, was convicted of six counts arising from his possession of a loaded handgun in a car and sentenced to 38 months’ custody, less 54 days’ credit for pre-sentence custody (36 days grossed up at the rate of 1.5:1). He abandoned his conviction appeal but continues his sentence appeal.

[2] Late on the night of October 10, 2017, the appellant, then aged 19, was sitting in a parked car outside an apartment building in Etobicoke. The police were at the building investigating an unrelated matter and saw and smelled clouds of marijuana smoke coming from the open car window. Although this was just before marijuana was legalized, they thought this was too flagrant a violation of the law to ignore. As the police approached the car, they saw the appellant with a thick marijuana “blunt” in his hand and a satchel around his neck. The police saw the handle of a handgun inside the satchel. They immediately arrested the appellant without resistance and seized the handgun.

[3] At trial the appellant raised a preliminary Charter challenge to the seizure of the gun, but when he lost that challenge his counsel invited the court to make findings of guilt based on the findings made on the Charter challenge.

[4] At sentencing the parties agreed on the credit for pre-sentence custody, but disagreed on the sentence range. The sentencing judge stated in his reasons that he understood the Crown “sought a custodial sentence in the range of 32 to 36 months less presentence custody”, while the defence urged a sentence of “no greater than 21 months … less Downes credit for more than two years spent under house-arrest release conditions”: R. v. Mohiadin, 2020 ONSC 47, at paras. 16-17. The sentencing judge imposed a sentence of 38 months — two months above the range he identified as having been proposed by the Crown — less 54 days’ credit for pre-sentence custody: at paras. 45-46.

[5] On the sentence appeal, duty counsel argues that the sentencing judge erred by (1) exceeding the Crown’s position on sentence without giving the appellant notice and an opportunity to make further submissions, and (2) refusing to give the appellant any credit, under the principles in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), for over two years spent under restrictive house arrest while on bail.

[6] Having reviewed the transcript of the sentencing hearing, in our view the sentencing judge misapprehended the Crown’s proposed sentence. He then erred by imposing a sentence greater than the sentence sought by the Crown without giving notice to counsel or allowing them to address whether such a sentence should be imposed.

[7] The transcript of the sentencing hearing reveals that the Crown first proposed a range of 32 to 36 months, without addressing whether the appellant should be provided with Downes credit for the over two years he spent under house arrest. In response, the defence proposed a sentence of no more than 21 months and Downes credit of 8.5 months (255 days). The sentencing judge then asked for the Crown’s position on Downes credit. Crown counsel (not appeal counsel) responded by stating that although Downes credit is discretionary and not governed by a prescribed formula, the Crown suggested 5 months of credit for what it acknowledged was a restrictive house arrest. The relevant exchange is as follows:

THE COURT: All right. So I want to hear from you on Downes credit.

[CROWN COUNSEL]: Okay. So on Downes credit, my friend expressed it absolutely correctly. There is no ratio. It’s a case by case situation. There are numerous cases in which one for four is granted. One for five; sometimes one for three, depending on the, the severity of the circumstances. [The appellant], yes, he was under a house arrest for the entirety of the time that he was on bail. Yes, he had some opportunity to leave with the surety, but it was restrictive; I’m not going to dispute that. But there is no automatic, one – granting it one and a third. That’s just not a principle in law. And I’m not sure…

THE COURT: What credit, if any, would, what credit, if any, would you be suggesting?

[CROWN COUNSEL]: Well, Your Honour, I would suggest something in the range of one in, one out of five, to one, to one third. Given Mister....

THE COURT: How many months?

[CROWN COUNSEL]: Pardon me?

THE COURT: How many months would you suggest? Make it simple.

[CROWN COUNSEL]: Five months.

THE COURT: Okay.

[CROWN COUNSEL]: That’s, that’s my submission. The, the last thing, Your Honour, is I know that this is part of that is that if the Downes credit is given, and depending on what the sentence is, it may or may not bring the balance of the sentence to under two years. And if that’s the case, then, the Crown would be asking for probation. [Emphasis added.]

[8] After the Crown suggested Downes credit of five months, the Crown’s proposed sentence was not 32 to 36 months, but 27 to 31 months. The 38-month sentence imposed thus exceeded the Crown’s position by 7 months.

[9] In R. v. Blake-Samuels, 2021 ONCA 77, at paras. 30-33, 36-38, per MacPherson J.A., this court recently held that it is an error in principle and contrary to fundamental fairness for a sentencing judge to exceed the Crown’s proposed sentence without giving the parties a chance to make further submissions. MacPherson J.A. explained, at para. 33, that “[i]t is not appropriate to deny procedural fairness during the sentencing process with the expectation that any error can be cured on appeal.” This court intervened with the sentence in Blake-Samuels because it concluded that it was “impossible to say that the sentence was not impacted by the unavailability of submissions”: at para. 36.

[10] The same is true here. The sentencing judge did not give the parties a chance to address a sentence seven months longer than what the Crown proposed. It is impossible to say that the sentence was not impacted by the unavailability of submissions.

[11] Because the sentencing judge made an error in principle that impacted the sentence, this court “must perform its own sentencing analysis to determine a fit sentence”: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 27; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. The court must “apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range”: Friesen, at para. 27. In doing so, the court “will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle”: Friesen, at para. 28.

[12] In sentencing afresh, we begin by reiterating the observations of Doherty J.A. in R. v. Nur, 2013 ONCA 677, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, that “[i]ndividuals 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.” In Nur, both this court and the Supreme Court of Canada declined to interfere with a 40-month sentence imposed on a 19-year-old first-time offender who tried to flee the police, was chased, and threw his loaded handgun under a parked car. McLachlin C.J. underscored, at para. 120, that “[i]t remains appropriate for judges to continue to impose weighty sentences” in appropriate circumstances.

[13] Here, in proposing a three-year sentence before credit for pre-trial custody and Downes credit, the Crown was mindful of these and other authorities. Crown counsel fairly noted that some cases have imposed longer sentences than this for similarly serious gun possession offences by youthful first-time offenders, while other cases have imposed shorter sentences. The Crown was satisfied that its proposed sentence was appropriate having regard to the following factors: (1) the appellant was a youthful first-offender; (2) while there was no evidence that the appellant was involved in gang activity, there was also no evidence of any direct threat to the appellant; (3) the appellant had witnessed gun violence, his older brother had died in gun violence, and he lived in a part of Toronto where gun violence is commonplace; (4) the appellant had prospects for rehabilitation; and (5) although the appellant did not plead guilty, he saved several days of court time by effectively inviting a guilty verdict after losing a preliminary Charter challenge.

[14] In our view, there is no basis to depart from the sentence that the Crown proposed at first instance, even though on appeal the Crown urges us to uphold the sentencing judge’s sentence despite the lack of procedural fairness. We recognize that, in properly balancing all the relevant factors, some courts might impose higher sentences while others might impose lower sentences. However, we are satisfied that the Crown’s original proposal properly balanced all the relevant factors and is therefore fit.

[15] Leave to appeal sentence is granted and the sentence appeal is allowed. The sentence is reduced to the Crown’s original proposal, which is 36 months, less 54 days’ credit for pre-sentence custody and 5 months or 150 days as Downes credit for restrictive house arrest conditions. The ancillary orders made by the sentencing judge remain unchanged.

“J.C. MacPherson J.A.”

“Grant Huscroft J.A.”

“M. Jamal J.A.”