Court File and Parties

Court: Ontario Court of Justice Court File No.: 18-15001868-02 Date: May 21, 2019 Location: Toronto – Old City Hall

Between: Her Majesty the Queen — and — Sharrieff Malik Muhammad

Before: Justice H. Pringle

Heard: February 8, 2019, April 11, 2019, April 17, 2019

Reasons for Judgment Released: May 21, 2019

Counsel:

• Ron Krueger, for the Crown
• Barry Plant, for the accused

FACTUAL OVERVIEW

[1] Police executed a search warrant on an apartment on Dan Leckie Way, finding the defendant Sharrieff Muhammad inside with his pregnant girlfriend. Also inside was a .45 caliber semi-automatic firearm and illegal drugs. It was loaded with eight rounds in the magazine and another round in the chamber. When police entered, the gun was inside a bedroom, on a mattress in plain sight. Inside a closet was five rounds of 40 caliber ammunition, and another 9 mm round lay loose on the floor. An Airsoft pellet pistol was on the living room floor.

[2] The officers found 4.42 grams, or about 44 'hits' of crack cocaine, on the kitchen table. If sold at the street level, meaning by the hit, it was worth $880. If sold all at once, it was worth between $400 and $500. Inside a kitchen cabinet, police found 3.33 grams of a morphine and fentanyl powder mix which represented about 16 'hits' at 0.2 grams each. If sold by the 'hit', this was worth between $640 and $960 and it sold all at once, it was worth between $965 and $1065.

[3] Indicia of drug trafficking was prevalent throughout the apartment. $860 in proceeds of crime was stashed in a closet. There were four cell phones throughout the apartment and five digital scales. Six grams of a white unknown powdery substance was separated in two bags inside the kitchen. Another 116 grams of a doughy white unknown substance was bagged and inside a bedroom.

[4] At trial, the validity of this search warrant was challenged and a s. 8 breach was successfully established. However, the firearm and drugs were admitted pursuant to s. 24(2). The defendant then pled guilty, factually admitting unlawful possession of this loaded restricted firearm, possession of proceeds of crime, and possession of both fentanyl and cocaine for the purpose of trafficking.

[5] Guilt having been established, the Crown globally requested six years of incarceration. He also sought to prove, as an aggravating factor, that the defendant was a member of a gang at the time he committed these offences. Det. Artinian, a Toronto Police Service officer whose expertise was uncontested, opined that Mr. Muhammad is a member of a gang called the "Menace Gang". This gang, a subset of the "Project Originals", is centered in the Dundas and Spadina area, and is involved in drug trafficking, firearm possession, discharging firearms, conflict with Regent Park gangs, and homicides.

[6] Mr. Plant, on behalf of Mr. Muhammad, resisted his client being labeled a gang member and challenged the Crown's viva voce evidence supporting this conclusion. The defence argued for a global sentence of between 24 to 36 months less presentence custody. A sentence reduction was sought as remedy for the Charter breach. The Crown disagreed with this, but suggested that if I did find the Charter breach mitigating, a reduction of 15 days would suffice.

[7] The Crown tendered a criminal record as part of the evidence. It was unrelated, consisting of three separate entries for fail to comply recognizance. The defendant received a conditional discharge for the first offence following 10 days of presentence custody, a $25 fine for the second offence, and a $25 fine for the third offence, following 37 days of presentence custody. Each entry occurred in 2016, when Mr. Muhammad was between 19 and 20 years old.

[8] Mr. Muhammad was 21 years old at the time of the offences at bar and is 23 now. His family support is strong, including a long-term stable relationship with the mother of his baby daughter. The defendant's family members have been here as support during this case. The defendant was not raised with a great deal of financial advantage. Growing up, his father was not a meaningful presence in his life. But the defendant was raised by a loving mother with the assistance of his grandmother.

[9] When the defendant was a teenager, his parents divorced and his grandmother passed away. These significant life events marked a change in his attitude and behaviour, as he admitted to the presentence report author. He struggled emotionally. He lost interest in playing basketball, lost interest in school, and eventually dropped out of high school. Drug use and negative peer associations became problems.

[10] Despite dropping out of high school, Mr. Muhammad has been able to establish himself in the music industry. He is a rap musician of some note, having achieved considerable success. Financially, he is able to sustain himself through income derived from Youtube hits. He has immense potential for continued and future success in music. His producer, interviewed for the presentence report, described Mr. Muhammad as possessing a strong work ethic. Mr. Muhammad has, his producer added, paved the way for younger kids to establish themselves in the Toronto rap scene.

[11] Mr. Muhammad was cooperative with the author of the presentence report. He owned up to his actions, displaying a mature attitude and remorse for his offending. Facing the consequences of his actions has been a "big eye-opener" for him, particularly given his girlfriend's pregnancy at the time. He acknowledged that his gun possession could have hurt someone he loved. Now, he says, he does not wish to see another firearm and he does not want to engage in illegal activity anymore.

APPLICABLE PRINCIPLES OF SENTENCING

[12] Where loaded firearms are combined with toxic drugs, the fundamental purpose of sentencing is best accomplished by emphasizing denunciation and general deterrence. Appellate courts have sent this message, loudly, clearly, and repeatedly: see R. v. Danvers, [2005] O.J. No. 3532 (C.A.) at para. 77-78; R. v. Jones, 2012 ONCA 609 at para. 12; R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250 at paras. 11-12. In R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120, Doherty J.A. said at para. 206, after striking down the mandatory minimum sentence in place at the time:

Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 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. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

[13] This reasoning is fully applicable to Mr. Muhammad's offending here. He had a loaded firearm. He was engaged in criminal conduct and that conduct posed a risk to others. The sentence imposed on Mr. Muhammad must send a message, to those of like mind in the community, that similar offending will be met by a penitentiary sentence.

[14] The City of Toronto has been ravaged by blatant gun violence. Multiple gunshots ringing out in the Eaton Centre food court. Random shootings of young men targeted only because of their neighbourhood. Two little kids in a Scarborough playground in the midst of crossfire. As a new father, I hope Mr. Muhammad remembers those two children, in particular, when he is free and making decisions about his future.

[15] We cannot accept this state of affairs as normal. Gun violence breeds community fear. Gun violence brings our city into disrepute. In Toronto, illegal gun possession and gun violence obviously go hand in hand. The justice system must answer the problem of gun possession by imposing exemplary sentences. This is why "true crime" gun possession must generally be met with a penitentiary sentence.

[16] Possessing cocaine and fentanyl must also attract sentences focused on general deterrence and denunciation. As Code J. said in R. v. Graham, 2018 ONSC 6817 at para. 46:

Another important feature of drug trafficking offences is that they are rationally premeditated commercial crimes driven by the profit motive. Because of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and deterrence are the most important sentencing principles in these cases.

This means Mr. Muhammad's sentence must send a message to the community denouncing the wrongfulness of his behaviour. His sentence must stop people who think the profit from drug trafficking will be worth the cost.

[17] The defendant's possession of the morphine and fentanyl powder adds another element of seriousness here. As the Crown asserted, police believed this powder was cocaine when they found it. Those police officers were at risk of medical distress or death. The intended purchasers of this drug were at risk for death by overdose. As Ratushny, J. aptly put it in R. v. Joumaa, 2018 ONSC 317 at para. 19:

In the context of the illicit drug scene in Canada at this time and the ever-present possibility that a powder or pill being sold may contain some amount of fentanyl, it seems to me that sellers, buyers and users of most kinds of illicit drugs are placing themselves in a situation not that dissimilar from their pointing a gun and firing it without knowing if it's loaded, not unlike the dangerous game of chance called Russian roulette. The consequences of involvement in the illegal drug trade are now potentially fatal.

[18] There is an opioid crisis in Toronto and fentanyl is killing people. Mr. Krueger correctly surmised that I need no evidence in order to draw this conclusion. Every day, at Old City Hall, I see the victims of the opioid crisis. I see them in plea court and I see them in Drug Treatment Court. I am aware that a user may think they are buying heroin or cocaine, unknowingly end up with fentanyl which is 20 times stronger than heroin, and overdose. I am aware fentanyl users may overestimate their tolerance and consume lethal doses. Currently, this is more than a risk. It is a re-occurring reality. I agree that fentanyl sentences should generally be higher than those imposed for cocaine or even heroin offences.

ANALYSIS OF SIMILAR SENTENCES FOR SIMILAR OFFENDERS

[19] As stated above, the Crown sought a global sentence of six years of incarceration for Mr. Muhammad, less presentence custody. He quantified this as four years for gun possession, two years consecutive for the fentanyl possession, and all other sentences concurrent. The defence sought between 24-36 months less presentence custody. Ancillary orders for forfeiture, DNA, and a lifetime weapons prohibition were uncontested.

[20] Mr. Kruger submitted that the overarching need for general deterrence and denunciation has led to a "starting point" or a "tariff" for gun offences. I respectfully disagree with these characterizations. Sentencing judges must sentence the individual offender for the individual offence, and cannot abdicate this duty to the notion of 'starting point' sentences. But there is a sentencing range, particularly for 'true crime' gun possession, that I must be mindful of. As McLachlin C.J.C. said in R. v. Nur, 2015 SCC 15 at para. 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.

[21] Defence and Crown provided well over seventy cases to assist me in resolving the issues. I have read them. I will not review them all here. Of note on the question of gun and drug possession range were:

• R. v. Crevier, 2015 ONCA 619, upholding 2013 ONSC 2630 where six years was imposed and upheld on a repeat drug trafficking offender with a lengthy criminal record, convicted after a jury trial, of possessing a loaded restricted firearm (4 years) and possessing 89.4 grams of powder and crack cocaine worth $10 000 (2 years consecutive as a "different legally-protected interest from the gun offences: see para. 129);

• R. v. Wong, 2012, where 3 years was imposed and upheld on appeal, convicted of 10 offences after trial including possession of a loaded firearm and possessing 38.8 grams of ketamine, 4 grams of cocaine, and marijuana all for the purpose of trafficking;

• R. v. Mansingh, 2016 ONSC 94; affirmed 2016 ONCA 171, where 3 years 7 months was imposed and upheld on a youthful first offender, convicted after a jury trial, of possessing a loaded firearm he possessed to assist in commercial marijuana dealing. While fleeing from police, the offender had ditched the loaded gun in a public place where anyone, including a child, could have found it;

• R. v. Marshall, 2015 ONCA 692, where 3 ½ years was imposed, after trial, and upheld, upon a youthful first offender with good rehabilitative prospects for possessing a loaded prohibited firearm. Sentence was aggravated by the fact that the offender sold at least 15 grams of cocaine that day at the apartment where he left the gun while going for lunch;

• R. v. Peterkin, 2013 ONSC 2116, where 4 years was imposed on a youthful first offender (3 year mandatory minimum and 1 year consecutive for cocaine possession for the purpose of trafficking). He had possessed a fully loaded firearm in his waistband, along with commercial sale amounts of crack cocaine and marijuana. The offender contested a Charter application and then "not contest[ed] his guilt". He showed no remorse and had a directionless educational and employment history;

• R. v. Mark, 2018 ONSC 447, where 4 years was imposed for possession of a loaded handgun in a car (3 years), possession of over 7 grams of cocaine for the purpose of trafficking and possession of 11.48 marijuana for the purpose of trafficking (1 year consecutive for both). The youthful offender had no criminal record, a supportive family, and a very positive PSR. After a contested Charter application, the defendant did not "waste any court time contesting his guilt" – which, I infer, means he did not plead guilty but did not contest the evidence admitted either;

• R. v. Prosser, 2014 ONSC 6466, aff'd 2016 ONCA 467, where 2 years was imposed upon a first offender for possessing a loaded prohibited firearm and 6 months consecutive was imposed for possession of 82 grams of cocaine, $3480 in cash, and loose ammunition. These items were found by police in a bedroom occupied by the defendant, who was 18 years old at the time of these offences.

[22] Recognizing that sentence ranges are not straitjackets, as per the Supreme Court in R. v. Lacasse, 2015 SCC 64 at paras. 57 and 58 the above cases suggest a range of at least three years for a first gun possession offence, adjustable in either direction depending on the presence of aggravating and mitigating factors.

[23] Determining range of sentence for fentanyl, specifically, is a more difficult exercise. The Court of Appeal, in R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628 (C.A.) declined to set a sentencing range for fentanyl trafficking. At paras. 49 and 50 the Court stated:

Loor has failed to demonstrate that his sentence was unfit or reflected any error in principle. The Crown invited us to establish a range for fentanyl trafficking, while acknowledging that sentencing is a 'highly individualized exercise' and that the relevant considerations affecting a sentence will vary from individual to individual: see Lacasse at para. 58.

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[24] Loor, a repeat drug offender who on three occasions trafficked a total of 45 fentanyl patches "of the highest strength" worth between $18 000 and $20 000, received a sentence of six years. This sentence was upheld by the Court of Appeal. In the case at bar, I note, the Crown seeks 1/3 of the sentence imposed on Loor for the 3.3 grams of morphine and fentanyl mix worth between $650 and $1065.

[25] The Court of Appeal has considered fentanyl sentences in a few other recent decisions. In R. v. Klammer, 2017 ONCA 416, the appellant was found guilty after a jury trial. He was a first offender and an addict trafficker. He sold six fentanyl patches, each of 100 microgram strength, to a police officer. At trial, he was sentenced to 33 months concurrent on each count. The Court of Appeal reduced that quantum to 20 months, given the incorrect emphasis on an aggravating factor. In R. v. Lu, 2016 ONCA 479, 2 ½ years was upheld for after trial possession of 20 100 mcg fentanyl patches for the purpose of trafficking.

[26] Here, Mr. Kruger relied on many cases where penitentiary sentences were imposed for multiple acts of trafficking fentanyl (or heroin, as in earlier cases such as R. v. Farizeh, [1994] O.J. No. 2624 (C.A.), or for possession of greater amounts of fentanyl for the purpose of trafficking: see R. v. Yu et al (unreported, Sept. 21, 2017, Ont. S.C.J.); R. v. Leite, [2018] O.J. No. 1190 (C.J.).

[27] Neither scenario fits neatly in the case at bar. To be fair, the Crown noted distinguishing features of these cases. Here, Mr. Muhammad possessed 3.3 grams of a fentanyl and morphine powder mix. I certainly cannot call this 'insignificant', but it pales in comparison to the amounts in many cases. The evidence did not establish that this amount rises beyond the level of street dealer. I also do not know the strength of this fentanyl/morphine mix. I appreciate from a public safety risk perspective, the toxicity of fentanyl means this matters not. I simply observe that the aggravating factor of strength, present in other cases such as R. v. Loor, is absent here.

[28] That said, the defence cases that coupled gun possession with cocaine possession did not fit neatly onto the facts here, either. But in the end analysis, I did not find Mr. Muhammad possessed a "significant" amount of fentanyl as per Loor. Even though he is not an "addict trafficker", his range of sentence would, in my opinion, include mid to upper-level reformatory time for fentanyl: see R. v. Klammer; R. v. Moore, 2017 ONCJ 801 at para. 17; R. v. Toth-Dogaru, 2014 OJ No. 4631, R. v. Rak, 2015 OJ No. 5182, R. v. Dixon, 2017 OJ No 3477, R. v. Hillier and Blain, 2018 ONCJ 397.

[29] Finally, the quantum of cocaine here lends itself to consideration of a general range: see R. v. Woolcock, [2002] O.J. No. 4927, of between six months to two years less one day. The Court of Appeal suggested this range because, as they held at para. 8,

…crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation.

[30] This range, too, must obviously be adjustable depending on the presence of aggravating and mitigating factors. Despite the emphasis being on deterrence and denunciation, the sentencing judge's error in Woolcock was failing to properly emphasize the appellant's rehabilitative prospects.

ANALYSIS OF AGGRAVATING AND MITIGATING FACTORS

[31] Leaving aside the question of gang membership for a moment, there are indisputably aggravating factors. These are:

• The presence of a criminal record, albeit one that is extremely minor and unrelated;

• The nature of the drugs possessed for sale, particularly the fentanyl. It kills users aware of its nature. It kills users unaware that the cocaine or heroin they purchased has fentanyl in it. It can kill an innocent first responder. Fentanyl can only be described as deadly;

• The form of the fentanyl possessed, that being powdered form: see the analysis of Rose J. in R. v. Moore, 2017 ONCJ 801 at para. 18. This form also makes it easier to pass fentanyl off as a different illegal substance, which in turn increases the risk of overdose in the user;

• The form of fentanyl storage was careless, at best. It could have harmed police officers just doing their job in executing the search warrant. It could have harmed Mr. Muhammad's pregnant girlfriend. It could have harmed their unborn child;

• The addictive nature of both fentanyl and cocaine, and the fact that more than one type of narcotic was being stored in the apartment;

• The motive for possessing these drugs was profit and sheer greed. The defendant was making enough money from his rap career to support himself. There was nothing in the evidence to reduce his moral blameworthiness on this point;

• The drug trafficking paraphernalia scattered through the apartment, such as the five digital scales, the multiple cell phones, and the presence of what was obviously a cutting agent;

• The presence of the Airsoft pistol, which in the context of the drugs and firearm was not lying on the living room floor for an innocent purpose;

• The firearm, which lay on a mattress, was loaded and one bullet was ready to fire in the chamber;

• The presence of extra ammunition in the apartment, and;

• The unsafe storage of the firearm, which again put the lives of his girlfriend and their unborn child at risk.

[32] There are mitigating factors here, too, as evidenced in the PSR and defence materials:

• The youthful status of this offender. Mr. Muhammad is still quite young. He is just 23 years old now, and was 21 at the time of the offending conduct;

• The presence of strong family and community support, including his mother, his siblings, his music producer, and his long-time girlfriend who is also the mother of their 8-month old baby daughter;

• The strong work ethic and fortitude he has displayed, which has already resulted in some success in his chosen field of music;

• The volunteer work he contributed to his community at St. Stephen's House, where he "participated in several formal programs over the years including our young men's mentoring group "The Gentleman's Spot", life skills programming, healthy nutrition, dance and music programs" and "also accumulated over 200 volunteer hours". The youth worker who confirmed Mr. Muhammad's community participation and service described him as "a gifted musician, but more importantly as a community minded, kind and respectful young man";

• The remorse shown to the PSR author and the insight demonstrated into his offending. More particularly, the defendant has owned up to his actions, made no excuses for his actions, and recognized the harm his offending caused the people around him who love him, and;

• The fact of the guilty plea. While I cannot characterize this as an early guilty plea, every guilty plea is deserving of some mitigating weight. The timing of the plea may increase or decrease that weight, but it does not remove that mitigation or reduce it to a 'neutral' factor.

GANG MEMBERSHIP AS AN AGGRAVATING FACTOR

[33] Returning to the question of whether the Crown proved the aggravating factor of gang membership beyond reasonable doubt, I have concluded the Crown has not. Mr. Muhammad has never overtly admitted gang membership. No single factor directly linked the defendant to gang membership and much of the evidence relied upon could lead to different reasonable inferences.

[34] Based on a constellation of material reviewed, Det. Artinian opined that Mr. Muhammad and his brother were members of the "Menace Gang". He reviewed occurrence reports, intelligence reports, social media, and interviews with other police officers. While his opinion was based on the cumulative effect of all this material, it is necessary to look at, individually, some of this evidence, in order to understand my conclusion.

[35] To begin with, Det. Artinian reviewed occurrence reports and synopses which described events where charges were laid and later withdrawn, or not laid at all, or where Mr. Muhammad was the victim of crime that police believed was gang-motivated. Det. Artinian also reviewed and relied upon a set of outstanding charges, quite serious in nature, recently laid against the defendant and his brother.

[36] Det. Artinian testified the main purpose behind relying on occurrence reports and police synopses was that it proved association with other persons police believed to be gang members. When cross-examined about one specific occurrence, however, Det. Artinian admitted his opinion was based on the police report making out the allegations contained within.

[37] This was a fair admission. Indeed, I have no doubt that Det. Artinian was relying on the contents of all of these occurrence reports for their truth. Even if these reports had been used to establish criminal associations only, the reader would still have accept, as true, that the reports were accurately identifying the defendant and these associates as being present on the scene and with each other during the alleged event described.

[38] I had concerns about the expert's reliance on select aspects of these synopses and occurrences. By way of example, in cross-examination, he was asked if he knew whether the defendant was arrested on the scene of one unsubstantiated firearms allegation. He did not. Pressed further on the fact that synopses often include information about how an accused person was arrested, he said he did not see this.

[39] Then, in a concerning bit of evidence, he said this information was not included in his expert report because the report's description of this alleged occurrence was his own "interpretation of what happened on that date" as opposed to a copy of the actual synopsis. Pressed further still on the omission, Det. Artinian emphasized that the salient aspects of this occurrence were the firearms involved and the associations. In other words, the details that mattered to him were the ones that furthered an inference of gang membership.

[40] An occurrence where Sharrieff Muhammad was arrested and then released without charges was included because it showed the defendant associating with known gang members. More particularly, both the expert report and the expert's in-chief evidence described the persons allegedly in Sharrieff Muhammad's presence that day as "a known member of the Goonies to Mobsters (G2M) gang" and "a known member of the Project Originals gang".

[41] But it was revealed, during cross-examination, that one of these persons was the defendant's uncle. Det. Artinian did not seem to have much information about the other person, and could not disagree with the suggestion that he was a 13-year old neighbourhood boy. He had read reports about this other person, but did not know if the boy had any convictions relating to the Project Originals. Another individual, described as a known member / associate of the Menace Gang in the expert report, was revealed in cross-examination to be the defendant's cousin.

[42] I appreciate the fact that the defendant may have a cousin and an uncle who are gang members. The defendant may know a 13-year old boy who is or is not a Project Original. The point is that information detracting from the inference of gang membership was omitted from both the expert report and from direct examination. Both sides of the coin should have been presented. I should add that I did find Det. Artinian generally credible and reliable. But I also harbor concerns that his opinion was skewed by, at the very least, unconscious bias toward the conclusion of gang membership.

[43] I also find that the unsubstantiated occurrence reports were a shaky basis upon which to rest, even in part, this expert's opinion. I disagree with Mr. Krueger's submission that synopses and occurrence reports can be accepted because the "presumption of regularity" applies, or because they involve sworn police officers under a duty to tell the truth.

[44] Respectfully, the Crown's reliance on the admissibility analysis in R. v. Mahalingan, 2008 SCC 63, is also misplaced. Occurrence reports and synopses may be admissible, especially in a forum where the rules of evidence are relaxed, but they are not inherently reliable. Here I adopt Durno J.'s decision in R. v. Downey, [2018] O.J. No. 6133 (S.C.J.) with respect to occurrence reports, and on the issue of synopses, I am bound by the Court of Appeal's decision in R. v. Williams, 2018 ONCA 437. At paras 9, 17, and 18 of R. v. Downey, Durno J. held:

9 I appreciate that as a result of the need for expeditious determination of bail issues, that the rules of evidence are relaxed. However, they are not abdicated. In cell phone cases, we hear and read of tower dumps. Bail hearings should not become police file dumps of everything in a police file or computer with the accused's name anywhere in it. Just because a police officer has recorded something someone has told him or her in an occurrence report, does not mean it is admissible at a bail hearing or anywhere else. It is impossible to determine if any of the uncharged incidents were "credible" or "trustworthy". There is no way to test it. No sources are given, no reasons are given why no charges were laid. The references to police being involved with him, without more, are irrelevant.

17 During submissions, I mentioned that I thought there had been some recent appellate authority on occurrence reports. On further review, it was in relation to police synopses where the offender had been convicted at trials and there was no transcript. I regard a synopsis as considerably more reliable than an occurrence report. Although, synopses are not particularly reliable.

18 A synopsis is prepared when someone has reasonable and probable grounds to believe an offence has been committed and provides the source of the information upon which the probable grounds were formed. With respect to the Court of Appeal case, albeit in the context of a dangerous offender application, part of sentencing where the rules of evidence are also relaxed, the Court of Appeal held in R. v. Williams, 2018 ONCA 437:

[42] In instances such as the present case, the Crown will seek to admit and rely upon police synopsis to establish the factual basis of prior convictions in support of a dangerous offender application….police synopsis are often prepared at the time of arrest, or in the early stages of a criminal prosecution. A fuller appreciation of the facts often emerges later, such that the facts set out in the synopsis will often diverge from the facts proven at trial, or admitted on a guilty plea…

[44] In J.K.L., this court expressed the view that it is difficult to conclude that a Crown synopsis, standing alone, is an accurate reflection of events. The court noted that the sources of information contained in the synopsis may not be specified, and an assessment of the reliability and trustworthiness of the information contained within may be difficult or impossible. [emphasis added by Durno J.]

[45] Now Det. Artinian's opinion did not rest on occurrences and synopses alone. The defendant has a tattoo that says "MG4L" on his right forearm. His social media and some rap videos display this tattoo proudly. The videos and social media also show the defendant wearing a gold chain that says "MG4L". In one video still shot, the defendant, who raps under the name "Casper TNG", can be seen wearing a t-shirt with Casper the ghost on it. The ghost is holding a firearm. The defendant is wearing a large necklace that says MG4L.

[46] The defendant's brother, a rapper who goes by "KMoney" and who police also believe to be a gang member, has the same tattoo and an MG pendant that reads "MG4L$G". These tattoos, Det. Artinian opined, stand for "Menace Gang For Life". The defendant and his brother are the only people that Det. Artinian has seen with these tattoos.

[47] Business documents tendered by the defence showed the brothers have incorporated their music production business under the name MG4L Music. Det. Artinian could not disagree with the suggestion that MG4L stood for "Money Gang for Life", although he had only heard it referenced as "Menace Gang". After being cross-examined about not researching "MG4L" to assess alternate possible explanations of it, Det. Artinian produced an Urban Dictionary definition of MG4L as "Menace Gang for Life" and of the defendant as "a sexy ass man in Menace Gang MG4L".

[48] Det. Artinian reviewed some, but not all, of the defendant's music and relied on some rap lyrics. For example, one rap talks about the "feds on my ass cause they know I'm a PO boy". This, Det. Artinian explained, meant that the police were after him because they know he is a Project Original member. Another rap relied on was "drill music", meant to call out a rival gang, and it was released during a time of heightened tensions with another gang. In an interview with "We Love Hip Hop", the defendant said that what he raps about represents his reality.

[49] A video shot in an apartment strongly suggested the defendant engaged in drug trafficking behaviour, which, of course, he was. Other people believed to be gang members were in his rap videos, such as his brother and another male named H.B. In cross-examination, it was revealed that Mr. B. is also the defendant's cousin. Again, this information was not included in the expert report or the witness' direct examination.

[50] I do have suspicions about gang membership, especially given the tattoos and rap lyrics in "Have You" and "Up". But it is equally possible that Mr. Muhammad was rapping about topics which, sadly, sell to the public. It could be artistic expression. The interview with We Love Hip Hop could be puffery. Certainly, Urban Dictionary definitions are the epitome of unreliability and have no place in a court of law.

[51] In the end analysis, I could not satisfy myself that gang membership was the only reasonable inference to draw from the evidence that I heard and that the expert relied upon. Put otherwise, it is also quite possible that Mr. Muhammad is not a gang member at all.

[52] The Crown position did not depend on proof of gang membership as an aggravating factor. Mr. Kruger submitted six years of incarceration was appropriate whether or not this aggravating factor was proven. But in my opinion, it would not give proper effect to the principle of restraint, Mr. Muhammad's status as a youthful offender, and the mitigating factors.

SENTENCE IMPOSED

[53] After considering the aggravating and mitigating factors proven, in conjunction with the principles of sentencing, I have concluded that the appropriate global sentence for the offences Mr. Muhammad committed is four years of incarceration less presentence custody.

[54] I am reducing this four-year figure by three months, as remedy for the Charter breach. Here, even though police were acting pursuant to a lawfully obtained warrant, I found some of the affiant's misleading assertions, about the defendant, made assessing seriousness a close call on s. 24(2) and the breach was conceded to have obvious impact: see R. v. Muhammad, 2018 ONCJ 626. The gun possession would have been a three year sentence, but has been reduced by three months to reflect the Charter breach.

[55] The individual sentences are, therefore, two years and nine months incarceration for s. 95(1) possess loaded firearm, s. 92(1) offence 2 years and nine months concurrent, one year consecutive for the possession of fentanyl for the purpose of trafficking, six months concurrent for possession of cocaine for the purpose of trafficking, and three months concurrent for possessing proceeds of crime.

[56] Pretrial custody calculated means Mr. Muhammad has two years left to serve in jail. I welcome any corrections to my mathematical calculations on this point. Finally, I will order the ancillary orders of forfeiture, DNA, and a lifetime prohibition against possession of weapons.

Released: May 21, 2019

Signed: Justice H. Pringle