Court Information

Court: Ontario Court of Justice

Date: August 26, 2019

Court File No.: Central East Region: Oshawa Courthouse, File No: 19-A34503

Parties

Between:

Her Majesty the Queen

— And —

Shajeeh Siddiqui

Before: Justice Peter C. West

Guilty plea entered: May 3, 2019

Oral Submissions Made: June 24, 2019

Reasons for Judgment released: August 26, 2019

Counsel

Mr. B. Guertin — counsel for the Crown

Ms. B. Petrouchinova — counsel for the accused Shajeeh Siddiqui

WEST J.:

Introduction

[1] Mr. Siddiqui pleaded guilty to the following charges on May 3, 2019 on a replacement information charging him alone:

1. Kidnapping with a Firearm (ss. 279(1)(a) and 279(1.1)(a));
2. Extortion with a Firearm (ss. 346 (1) and 346(1.1)(a));
3. Aggravated Assault (s. 268);
4. Possession of a Loaded Restricted Firearm (s. 95(1) and (2)(a)(i));
5. Possession for the Purpose of Trafficking in a Schedule 1 Substance: Crack Cocaine and Methamphetamines (s. 5(2) of the Controlled Drugs and Substances Act); and
6. Breach of Probation (s. 733(1)(a)).

[2] Shajeeh Siddiqui was originally charged on an information with two co-accused, Usman Ali and Idris Kakar in respect of the charges of kidnapping with a firearm; extortion with a firearm, aggravated assault and possession of a loaded restricted firearm. Idris Kakar pleaded guilty before me on March 8, 2019, in respect of the kidnapping with a firearm, aggravated assault and extortion with a firearm and a PSR was ordered. On June 20, 2019, I sentenced Mr. Kakar to five (5) years imprisonment less pre-trial custody by way of a joint submission between Mr. Guertin and defence counsel, Mr. J. Chapnik.

[3] I was advised by Mr. Guertin during submissions that Usman Ali had recently dismissed his lawyer but there was a six (6) year joint submission on a guilty plea by Mr. Ali on similar charges. It is unknown at the present time if Mr. Ali intends to follow through with the plea agreement or proceed to a preliminary hearing. It is my view this plea agreement reached by the Crown in respect of Mr. Ali will be a significant factor in my determination of the appropriate sentence for Mr. Siddiqui. I will discuss this later in my reasons for sentence.

[4] An agreed statement of facts was filed on sentence as Exhibit 1 on Mr. Siddiqui's sentencing. The Crown also filed a number of video clips, which depicted some of the offences, Exhibit 2, as well as transcripts of a three of the video clips. Further, photographs of the victim, Arslan Chaudry, were marked as Exhibit 4. A pre-sentence report was ordered after Mr. Siddiqui's guilty plea and it was marked as Exhibit 5. Ms. Petrouchinova filed a number of letters, certificates pertaining to Mr. Siddiqui's involvement in 5 school/library programs, community service, his high school report card and a number of English assignments from his Grade 12 English class while incarcerated, these materials were marked collectively as Exhibit 6. Although the Crown attempted to obtain a Victim Impact Statement from Mr. Chaudry, one was not provided by him.

Factual Background of Offences

[5] On April 13, 2018, Mr. Shajeeh Siddiqui, together with Usman Ali and Idris Kakar, jointly kidnapped, assaulted, extorted and robbed Mr. Arslan Chaudry using a loaded restricted handgun. I was advised during submissions that this loaded restricted handgun was Usman Ali's and was found on his person when he was arrested later on April 13, 2018.

[6] Usman Ali knew Arslan Chaudry prior to the commission of these offences. It was Usman Ali who had a dispute with Mr. Chaudry leading up to the early morning of April 13, 2018, when these offences were committed. Mr. Chaudry believed Mr. Ali owed him $1500.00 because Mr. Ali had sold him "fake" drugs. Mr. Ali set up the meeting with Mr. Chaudry in Oshawa through text messages on their cell phones, which were marked as Exhibit 7.

[7] Mr. Siddiqui and Mr. Kakar accompanied Mr. Ali to the meeting with Mr. Chaudry. Mr. Ali and Mr. Siddiqui also communicated with each other on April 12, 2018 and in the early morning hours before the meeting Mr. Ali arranged with Mr. Chaudry by use of their cell phones. Mr. Siddiqui is referred in the messages and throughout the interactions that occurred that night as "S.G." I was advised by Ms. Petrouchinova during submissions that there was no mention or reference to kidnapping or robbing Arslan Chaudry in any of the text messages between Usman Ali and Shajeeh Siddiqui prior to Mr. Ali picking up Arslan Chaudry at his home.

[8] The Agreed Statement of Facts, Exhibit 1, indicates that Mr. Siddiqui had a restricted handgun in his possession in the car that night, which was loaded. During submissions I was advised by the Crown that the restricted handgun was Mr. Ali's and was found in his possession when he was arrested later that same night on April 13, 2018 (p. 4 of Exhibit 1).

[9] On April 13, 2018, at 2:00 a.m., the three men drove to Mr. Chaudry's house in Oshawa and he got into the backseat of Mr. Ali's Dodge Charger. Mr. Ali drove to a parking lot by the Oshawa beach. Mr. Siddiqui was seated in the front passenger seat and had the loaded handgun in his possession. He pointed the gun at Mr. Chaudry and confronted Mr. Chaudry about things he had said about Mr. Ali. Mr. Siddiqui cocked the handgun and hit Mr. Chaudry with it numerous times.

[10] Mr. Chaudry's wallet and iPhone 8s were taken from him. The three men also demanded he get them $2000.00. He told them he could not get money for them but they told him to get it from his family and friends. Mr. Ali told Mr. Kakar to check to see if Mr. Chaudry had a bank card. His pockets were searched but there was no bank card.

[11] Mr. Siddiqui threatened to shoot Mr. Chaudry in the leg if he did not get them the money and he also threatened to kill him if he did not get them the money. Mr. Siddiqui told Mr. Kakar multiple times to hit Mr. Chaudry in the face, which Mr. Kakar did on multiple occasions. The conduct was video-taped by Mr. Ali using his cell phone. In one video, see Exhibit 2, Mr. Siddiqui put the loaded handgun in Arslan Chaudry's mouth. In another clip, Mr. Siddiqui was filmed hitting Mr. Chaudry in the face with the gun. In another video clip, Mr. Ali pointed the gun in Mr. Chaudry's face. I was advised by Ms. Petrouchinova during submissions that there was also a video of Mr. Ali putting the loaded restricted handgun into Mr. Chaudry's mouth. The Crown did not dispute this fact.

[12] Mr. Chaudry was forced to contact a friend to put $200.00 in a mail box for Mr. Chaudry. Mr. Ali drove to this friend's address and they picked up the money. Mr. Chaudry was driven to various locations in Durham Region. At one location Mr. Chaudry was beaten by Mr. Siddiqui and Mr. Siddiqui fired a round from the handgun into the air.

[13] Mr. Siddiqui told Mr. Chaudry that if he told anyone what had happened to him, he and his family – his mom, dad and sister – would be killed. Mr. Siddiqui told him they knew where he lived, and he had "shooters."

[14] Mr. Chaudry was ultimately dropped off by his house after being forcibly confined for 4 hours. He was given the bullets for the handgun by Mr. Ali who told him he was putting them in his hand instead of his head.

[15] The police found visible staining from Mr. Chaudry in Mr. Ali's Dodge Charger. Mr. Chaudry was taken to a local hospital as a result of the injuries he suffered, which included wounds to his head requiring stitches and a fractured finger on his right hand.

[16] Mr. Siddiqui's involvement came to light as a result of the police investigation and on May 15, 2018, a search warrant was obtained for his home at 602 – 130 Lincoln Road in Waterloo. In Mr. Siddiqui's bedroom were found and seized the following items:

a.) 121.6 grams (4.3 ounces) of crack cocaine (packaged as 6.6 grams, 86.25 grams and 28.8 grams);

b.) 41 grams (1.46 ounces) of crystal methamphetamine;

c.) 104 Xanax tablets;

d.) $8900 in Canadian currency;

e.) a digital weigh scale;

f.) a Blackberry phone; and

g.) Arslan Chaudry's iPhone 8s, which had been stolen from him during the kidnapping.

[17] It was admitted that the crack cocaine and crystal methamphetamine was possessed for the purpose of trafficking by Mr. Siddiqui. The street value of the crack cocaine was between $9728.00 and $14,592. The street value of the crystal methamphetamine was between $2050 and $4100.

[18] Mr. Siddiqui did not possess a license to possess any firearms at the time of the offence and he was bound by two probation orders at the time of the offence.

Position of the Parties

[19] The Crown submitted the crimes involving the firearms were "true crime" types of offences and the paramount principles of sentencing considering the factual background were deterrence, both general and specific deterrence, denunciation and protection of the public. The criminal conduct of Mr. Siddiqui required, according to the Crown, an exemplary sentence. Mr. Guertin submitted Mr. Siddiqui was the most morally blameworthy individual of the three men involved in the offences surrounding the kidnapping.

[20] The Crown submitted an appropriate sentence for the kidnapping with a firearm offence on its own would be in the range of 8-9 years and the possession for the purpose of trafficking would be in the range of 3-4 years, consecutive to the kidnapping offence. This would mean a global sentence of 11 to 13 years. However, taking into account the sentencing principle of totality, Mr. Guertin argued a sentence of 7.5 years was appropriate for the offences surrounding the kidnapping with a firearm. The firearm offence under s. 95 required a 3 year sentence to be served concurrently, the extortion with a firearm offence required a 5 year sentence to be served concurrent and the appropriate sentence for the aggravated assault was a 2 year concurrent sentence. The Crown submitted the appropriate sentence for the possession of crack cocaine and crystal methamphetamine for the purpose of trafficking, taking into account the principle of totality, was a 2.5 year sentence to be served consecutively, for a total global sentence of 10 years.

[21] The Crown also seeks ancillary orders for weapons prohibition, s. 109 order for 20 years; DNA as primary designated offences, s. 487.04; s. 491 forfeiture order; and s. 743.21 order for non-communication order with Arslan Chaudry and his immediate family. The defence does not take issue with any of the ancillary orders sought by the Crown.

[22] The defence submitted a seven (7) year period of imprisonment was the appropriate global sentence for the offences Mr. Siddiqui pleaded guilty to, having regard to his youth, his minor youth and adult record and the fact he has never been sentenced to any sentence of imprisonment other than pre-trial custody, the longest being 19.5 days. The defence pointed to the joint submission of six (6) years anticipated in respect of Usman Ali's guilty plea and submitted Mr. Siddiqui should not receive a greater sentence than six (6) years for the offences surrounding the kidnapping with a firearm. The drug offence called for a two (2) year sentence but having regard to the sentencing principle of totality, Ms. Petrouchinova argued this should be reduced to one (1) year.

Circumstances of the Offender

[23] Mr. Siddiqui is currently a 20 year old young man who emigrated to Canada with his family, his parents, Arshi and Ibrihim Siddiqui and his brother (age 18) and sister (7) from Pakistan in 2000. He became a Canadian citizen when he was 6 or 7 years old. He initially lived in Toronto with his family in a neighbourhood where his father indicated there were many poor influences. In 2017, the family moved to Waterloo.

[24] Mr. Siddiqui described having a close relationship with his father but indicated his relationship with his father was "on again – off again." He believed his father's strict household rules were holding him back and he rebelled against them but he told the probation officer he now recognized his father only wanted the best for him.

[25] He has only completed Grade 10 with a few Grade 11 credits. He was working on his Grade 12 English credit while he has been in pre-trial custody and maintained he was doing well. Defence counsel provided as part of the sentencing materials a number of essays and samples of his writing work. His father described Shajeeh as being a "brilliant student" who initially did well in school. Mr. Siddiqui admitted he had difficulties with teachers and fellow students. He was suspended for fighting and skipping classes. He described being bullied where he was picked on and beaten up by other students. As a result he dropped out of school.

[26] He has a limited work history, minimally employed in the labour industry for cash and at a call centre. He intends to complete his high school and then take an HVAC (Heating and Cooling) apprenticeship.

[27] Mr. Siddiqui advised the probation officer he began consuming alcohol at the age of 15 /16 years. His alcohol use became a daily habit and ultimately led to his using illicit substances. He advised he became addicted to these substances but hid it from his family as in his Muslim culture, "drinking and using drugs is thought to be shameful." His father advised he was not aware of the extent of his son's drug and alcohol use. Mr. Siddiqui took drug counselling as a youth and believed he got it under control until he became "stressed and got back into using." He admitted to selling drugs to support his habit: cocaine, molly and zanex.

[28] The probation officer found Mr. Siddiqui to be forthcoming and cooperative during the interview. Mr. Siddiqui expressed "his deepest regrets for participating in something that threatened the victim and created significant trauma." He spoke similarly in court when provided an opportunity to speak to me before sentencing. He expressed remorse for his actions and indicated he had hoped Mr. Chaudry would be in court so he could apologize to him directly. He apologized to his parents and told me he wanted to become a productive member of society. The probation officer believed Mr. Siddiqui's remorse was sincere, as do I from his comments. He indicated he accepted responsibility for his actions and pleaded guilty to make amends and to demonstrate he deserves a second chance. Mr. Siddiqui recognized that his consuming drugs and alcohol prior to the incident was a factor in the commission of the offences. The probation officer believed Mr. Siddiqui had insight into these issues and expressed a desire to address this behaviour through counselling.

[29] Mr. Siddiqui told the probation officer he suffers from depression and anxiety but no formal diagnosis was provided. His father believed his son has undiagnosed mental health issues caused by the bullying he experienced in school.

Determining the Appropriate Sentence

[30] In determining an appropriate sentence for Mr. Siddiqui, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[31] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[32] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[33] Although deterrence and denunciation are the most significant sentencing principles in cases involving the use of a loaded restricted handgun during an offence or the possession of a restricted or prohibited firearm contrary to s. 95 of the Criminal Code, those sentencing principles must not exclude consideration of rehabilitation, particularly in the case of an offender, who will receive a first significant custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. Here Mr. Siddiqui is also not a first offender, however, his criminal record is relatively minor and he has only spent 19.5 days previously in respect of one conviction and 6 days in respect of another, both of which were in pretrial custody.

[34] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92).

Both counsel provided me with a number cases dealing with the sentencing of offenders involved in kidnapping offences where a firearm was used, although, the number of similar cases to the facts presented in Mr. Siddiqui's case are relatively few. I do not intend to refer to every decision provided to me but will refer to a sampling, which are summarized below:

[35] Some of the cases the Crown provided included:

R. v. Crawford, 2014 BCCA 175. Seven individuals were charged with offences arising out of the kidnapping and unlawful confinement of an individual and after a trial, five of those accused were found guilty. The Crown appealed the 3.5 year sentence imposed on Mr. Crawford for this kidnapping, where the victim had agreed to launder $400,000 for his associates but then reneged and did not return those monies. The victim was kidnapped, threatened with a Taser, masked and handcuffed. He was held for less than 24 hours, which the British Columbia Court of Appeal held put the kidnapping at the less-significant end of the spectrum. The sentencing judge properly characterized the gravity of the offence and made no error in differentiating between those involved, however, the accused's sentence was unfit as it did not fall within the appropriate range for a planned kidnapping, which they held was between five and ten years. A five year sentence was substituted, although this was viewed as being at the low end of the appropriate range.

R. v. Powell, [2017] O.J. No. 6517 (SCJ, Campbell J.). After a trial Mr. Powell was convicted of kidnapping with intent to hold for ransom; unlawful confinement and conspiracy to commit kidnapping for ransom. The victim was violently abducted and tortured with a hot object from which he suffered third degree burns, until rescued by police approximately 7 days later. Powell was not involved in the initial abduction and he was not the person who inflicted the torture. He was involved in the planning and he was the individual who attended to collect the $500,000 ransom. The police became involved in an undercover capacity and threats were made towards the victim of removing his fingers if the ransom was not paid quickly. Later, threats were made that the victim would not be returning home if the ransom was not paid. Justice Campbell identified the range of sentence for "Kidnapping for Ransom" cases, which he found was anywhere from 10 to 20 years in British Columbia and Alberta cases; and 8-10 years in Ontario cases: R. v. Lewers, 2012 ONSC 5332 (SCJ, Trafford J.) and R. v. Oppong, 2017 ONSC 6684 (SCJ, Goldstein J.). Justice Campbell found Mr. Powell "knowingly and intentionally played a critical role in the kidnapping offence," and imposed a sentence of seven (7) years.

R. v. Stephens, [2013] O.J. No. 3138 (OSC, Sproat J.). After a trial the two accused were found guilty of the kidnapping using a firearm. A third accused was the organizer and leader of the kidnapping but Justice Sproat found both Stephens and Alexander knew of the plan as it unfolded, which led to a second kidnapping. They held two victims overnight and two guns were involved. The appropriate sentence for Stephens was eight (8) years less credit for pre-trial custody and for Alexander, seven (7) years less credit for pre-trial custody.

R. v. Jones, [2012] O.J. No. 4285 (C.A.). Three individuals kidnapped the victim who was held captive for several hours. The victim was threatened to arrange a meeting with another individual. When that meeting occurred there was an exchange of gunfire and the other individual was wounded in his leg. The accused pleaded guilty three weeks into his trial. Mr. Jones was sentenced to 10 years but the Ontario Court of Appeal reduced the sentence to the position advanced by the Crown – nine (9) years. The importance of this case involved a comment by the Court of Appeal respecting the criminal use of firearms as being a plague on the life of the Greater Toronto Area and those who engage in such conduct need to receive the message they will come face to face with the full force of the law and will be sent to the penitentiary for a long period of time. Denunciation and deterrence are the primary objectives of sentencing in this kind of case.

R. v. T.G., [2019] O.J. No. 2684 (SCJ, Molloy J.). After a trial, T.G. was convicted of kidnapping with intent to hold for ransom with the use of a firearm; possession of a firearm; possession of heroin (laced with fentanyl) for purpose of trafficking; possession of cocaine for the purpose of trafficking and possession of proceeds of crime ($1900). The kidnapping and firearms offences occurred on April 19 and 21, 2016 and on his arrest he was found in possession of the heroin, crack cocaine and cash. The two sets of charges were not related. T.G., 3 weeks shy of his 18th birthday, was a young person, however, Justice Molloy determined an adult sentence was necessary. She found T.G. was the leader, the organizer, the one who took care of the transport, the one who conducted the negotiations for the ransom and the one who collected the ransom money. Justice Molloy agreed the kidnapping was not planned in advance however the kidnapping lasted for three days during which the victim was tied up, threatened with firearms, punched, slapped and kicked. He was subjected to Russian roulette, pistol whipped, burned with hot knives and beaten with a board. Photographs of the victim were taken showing him tied up and bleeding and sent to his family. One photograph showed them threatening to cut off the victim's fingers. There was no mitigation for a guilty plea. Justice Molloy found the appropriate sentence for the kidnapping with a firearm for ransom was seven (7) years and the possession for the purpose of heroin offence the appropriate sentence was five (5) years. This would have meant a global sentence of 12 years less pre-trial credit, which she found would be a crushing sentence. Applying the principle of totality she reduced the sentence by three (3) years and imposed five (5) years for the kidnapping offence and four (4) years consecutive for the possession for the purpose of trafficking for a global sentence of nine (9) years less pre-trial credit of four (4) years and seven (7) months.

[36] Counsel for Mr. Siddiqui also provided me with a number of sentencing decisions, including R. v. T.G., summarized above:

R. v. Campbell, [2019] O.J. No. 2792 (SCJ, Bielby J.). After a trial, the jury found Campbell guilty of kidnapping using a firearm, pointing a loaded firearm and assault causing bodily harm. The accused pointed the firearm at the victim, the victim was tied up, and hot oil was poured into the victim's ears and onto his thighs, which left permanent scars. The victim was driven to a wooded area where he was choked by the accused to unconsciousness, the night was cold and the victim was dressed in shorts, shoes and had a coat around his shoulders. He was able to walk with his hands bound behind his back to a gas station where he received assistance. He had been held for less than two hours. Mandatory minimum sentence was not challenged constitutionally. Accused had no record and had abided by terms of his release. Kidnapping involved violence, torture and injury. Crown sought 8-9 year sentence and defence submitted a 5-6 year sentence was appropriate. Sentenced imposed was 7 years less pre-trial custody and credit for restrictive bail conditions.

R. v. Morrison-Lonie, [2013] A.J. No. 607 (C.A.). The Crown appealed the 5 year global sentence imposed for kidnapping using a firearm, break and enter with intent to commit aggravated assault, masking and administering a noxious substance. The victim attempted to rip off a drug dealer for $3200 of marihuana. When the rip-off was discovered the victim was later kidnapped at gunpoint and knifepoint at his residence by three masked men to teach him a lesson. He was rendered unconscious by an unknown substance, bound and locked in a car trunk. He was struck with guns and knives, punched and slapped. He had gasoline poured over his head and was threatened he would be set on fire. He was forced to eat dirt and cigarette butts. He was told his thumb would be cut off. He was eventually released after five hours on a rural roadway. He suffered bruising, multiple cuts, burns and blistering but none of his injuries were permanent. The victim was sent a text by the accused the next day reminding him to pay his debt. The accused pled guilty and did not have a criminal record. He faced deportation upon his release. The sentencing judge erred in imposing a two year sentence for kidnapping using a firearm, as there was a four year mandatory minimum sentence applicable. However, Alberta Court of Appeal held the global sentence of five years was not demonstrably unfit. No material aggravating factors were overlooked. This was an early guilty plea where accused had no criminal record and had a favourable pre-sentence report. Global sentence upheld, appeal dismissed.

[37] What the caselaw provided by both counsel demonstrates is that sentencing is a very individualized process and there is not one size fits all or a uniform sentence for all offenders who commit a particular crime.

[38] The mandatory minimum sentence for the offence under s. 95 of the Criminal Code was struck down by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. In Nur, the accused, age 19, was standing outside a community centre with some other persons. When the police arrived on scene, Nur ran and threw a loaded .22 calibre handgun with an oversized clip under a car. Nur was an exceptional student with no criminal record, he was described as having unlimited academic and athletic skills. A 40 month sentence was held by the majority as an appropriate sentence for offenders at the "true crime" end of the spectrum. Despite striking down the minimum sentences mandated by s. 95(2), the Ontario Court of Appeal and the Supreme Court of Canada have clearly drawn a distinction between "true crimes" and those offences that are more regulatory in nature. As reflected by McLachlin C.J. in R. v. Nur, supra, 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. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. [Emphasis added]

[39] In R. v. McIntyre, [2019] O.J. No. 1023 (C.A.), the Ontario Court of Appeal upheld the constitutionality of the four year mandatory minimum sentence for robbery with a firearm, relying on the earlier Ontario Court of Appeal decision in R. v. MacDonald, [1998] O.J. No. 2990 (C.A.), which upheld the then 4 year mandatory minimum sentence for robbery with a firearm. The Court upheld the six year sentence imposed for an 18 year old accused who pointed a loaded handgun at the victim, pistol whipped the victim knocking him unconscious and then stole his car keys and car. The accused had a criminal record and was subject to a weapons' prohibition at the time of the offence.

[40] Regardless of which cases I am directed to involving the use of a restricted or prohibited weapon during a kidnapping, extortion or robbery, they all have a consistent theme, regardless of the level of court: "firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons," R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (SCJ Kelly J.) at para. 32. This principle was well expressed by Trafford J. in R. v. Villella, [2006] O.J. No. 4690 (S.C.J.) at para. 46:

...[T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.

[41] Further, in R. v. Jones, supra, at para. 12:

12 Finally, we do not agree that the sentencing judge erred in failing to give the appellant a shorter penitentiary term because of his youth. The criminal use of firearms is a plague on the life of the Greater Toronto Area. Those who are disposed to engage in this kind of criminal activity have to get the message that they will ultimately come face to face with the full force of the law and, in the result, will be sent to penitentiary for a long period of time. Denunciation and deterrence are the primary objectives of sentencing in this kind of case.

[42] In this case the possession of a handgun by Usman Ali led to its use during the kidnapping of Arslan Chaudry as observed by Justice Trafford above. The use of firearms during the commission of offences like kidnapping or extortion or robbery will lead to lengthy penitentiary sentences despite the youth of an accused as a result of the recognition by the Ontario Court of Appeal of the need to impose exemplary sentences for offences, which are "true crimes." I will address these issues when I discuss the appropriate sentence for Mr. Siddiqui later in my reasons.

Mitigating and Aggravating Circumstances

[43] Mr. Siddiqui pleaded guilty to the charges, which having regard to the seriousness of the offences and the sentence being sought by the Crown, in my view, reflects his genuine remorse for his conduct. Ms. Petrouchinova submitted the dark, hazy photograph used to identify Mr. Siddiqui raised triable issues surrounding the identification evidence if the matter had proceeded to trial, which also supports the genuineness of Mr. Siddiqui's remorse. Further, his acceptance of responsibility meant the victim in this matter, Arslan Chaudry did not have to testify at the preliminary hearing, which had been scheduled. Mr. Siddiqui's guilty pleas is a significant distinguishing feature from the cases provided by the Crown where the sentences imposed were after trial where the accused had been found guilty.

[44] The defence referred to a decision of Justice D. Cole in R. v. Ishmael, 2014 ONCJ 136, [2014] O.J. No. 1391 (Ontario Court of Justice), where he reduced an accused's sentence by one quarter (or 6 months, where he held a two year sentence would have been appropriate without the guilty plea) because of the accused's plea of guilty. Justice Cole was following a legislated practice in England and he granted a specific amount of credit for Mr. Ishmael's plea of guilty. It is my view that the fundamental principle of sentencing is proportionality and a plea of guilty and acceptance of responsibility for one's actions evidences a significant mitigating circumstance, which must be considered against the particular aggravating circumstances involved, in the balancing that takes place when a sentencing judge is determining the appropriate, proportionate, individualized sentence for an accused. The significant mitigation that follows a guilty plea will result in some reduction in the sentence imposed, however, it is my opinion reducing what would be the appropriate sentence by a set or specific percentage because of a guilty plea, ignores the balancing process involved in considering the applicable sentencing principles and for that reason I decline to follow Ishmael.

[45] Mr. Siddiqui is a youthful offender, 19 years of age at the time of the commission of these offences. In my view this increases the importance of rehabilitation and given the positive pre-sentence report in terms of his family support, as well as his intended and realistic goals of completing his high school and then enrolling in a college program for HVAC (Heating and Cooling), any sentence of incarceration, which is clearly necessary and required having regard to the seriousness of these offences, should not be so long as to crush any hope he has to change his ways or undermine any chance he has for rehabilitation. The author of the PSR indicated Mr. Siddiqui has insight into his criminal behaviour and its underlying causes and is prepared to seek the appropriate supports to assist him in making changes. He acknowledged his abuse of alcohol and drugs were a factor in his committing these offences. In my view these circumstances should also mitigate the sentence to be imposed.

[46] Mr. Siddiqui is not a first offender and has a criminal record, although he is youthful, he was 19 at the time of the commission of these offences. In my view his youth and adult criminal record can be viewed to some extent, as an aggravating circumstance, as well as the fact he was on probation at the time of the offences in question, which is also aggravating. However, as I discussed above Mr. Siddiqui has never been sentenced to a term of imprisonment greater than 19.5 days and this will be the first time Mr. Siddiqui will be sentenced to a sentence of imprisonment in the penitentiary. Consequently, I must be cognizant of his youth and the importance of considering his prospects for rehabilitation in determining a proportionate sentence.

[47] His youth and adult court record included the following findings of guilt and convictions:

On September 29, 2017, he was granted a 12 month conditional discharge with conditions as a young person under the Youth Criminal Justice Act for the offence of Fail to Comply with Recognizance.

Ms. Petrouchinova advised what appears to be two sets of charges from February 2018 (February 5 and February 15) were, in fact, one set of charges. It appears these offences were committed after Mr. Siddiqui turned 18 years of age. He received a $500.00 fine for simple possession of a Schedule II substance and a suspended sentence and 18 months' probation with conditions for charges of Obstruct Peace Officer and Fail to Comply with recognizance. The record revealed Mr. Siddiqui received credit for 19.5 days of pre-trial custody. There was a further suspended sentence and six months' probation with credit for six (6) days of pre-trial custody for the offences of Identity Fraud and Fail to Comply with Probation.

[48] The fact Mr. Siddiqui actively used the loaded restricted handgun towards Mr. Chaudry by pointing it at him, threatening him, striking him with it and ultimately putting it in Mr. Chaudry's mouth are serious aggravating factors. I agree with the Crown these were violent and callous acts by Mr. Siddiqui towards Mr. Chaudry. It is significant to note that Mr. Ali performed similar acts towards Mr. Chaudry and the restricted handgun was found in Mr. Ali's possession on the same day of Mr. Chaudry's kidnapping when Mr. Ali was arrested in the Dodge Charger that Mr. Chaudry was picked up in when he was kidnapped. There are reasonable inferences that the Dodge Charger was Mr. Ali's, as was the restricted handgun. The fact Mr. Siddiqui threatened injury and violence towards Mr. Chaudry's parents and family to try and get him to obtain monies for the three kidnappers was also an aggravating factor. Mr. Siddiqui, along with Mr. Ali, were the two individuals threatening and making demeaning comments and laughing at Mr. Chaudry's reactions on the videos. It is my view this also is an aggravating circumstance.

[49] Mr. Siddiqui was involved in gratuitous violence towards Mr. Chaudry, which caused him injury. Although Mr. Chaudry did not provide a victim impact statement, it is clear from the video recordings filmed by Mr. Ali that the injuries suffered by Mr. Chaudry were either caused by the assaults by Mr. Siddiqui or by Mr. Kakar, who was directed by Mr. Siddiqui or by Mr. Ali. In my view both Mr. Siddiqui and Mr. Ali used the restricted firearm during the kidnapping, both caused injuries to Mr. Chaudry and each of them at different times put the loaded firearm into Mr. Chaudry's mouth and threatened him.

[50] The Crown argued the length of the kidnapping was an aggravating factor. However, the length of the kidnapping was relatively short – four hours, and when this kidnapping is compared to cases like Crawford (just less than 24 hours), Powell (7 days) or T.G. (3 days), referenced above, it is my view the seriousness, to some extent, is thereby reduced, as recognized by the B.C. Court of Appeal in Crawford. However, the fact a firearm was used during a kidnapping and extortion and robbery is an aggravating circumstance.

[51] What sets Mr. Siddiqui apart from Mr. Ali is the fact that when Mr. Siddiqui was arrested on May 15th, 2018, the police located and seized Schedule 1 substances – 121.6 grams (4.3 ounces) of crack cocaine; 41 grams (1.46 ounces) of methamphetamine and $8900 in Canadian currency together with other drug paraphernalia. It was agreed these illicit substances were possessed for the purpose of trafficking. The nature of the two substances is aggravating as is the fact that the quantities and their monetary value reflect that Mr. Siddiqui was a commercial mid-level trafficker. Although Mr. Siddiqui was a user of illicit substances, I was not advised he was an addict at the time of these offences or that his motivation in selling illicit substances was to be able to support an addiction.

[52] The Crown argued an additional aggravating factor was the toxic combination of drugs and guns in respect of Mr. Siddiqui. As I indicate below in my reasons, the restricted handgun in question was not Mr. Siddiqui's as it was found in Mr. Ali's possession when he was arrested in the Dodge Charger the same day in the evening after Mr. Chaudry's kidnapping had ended. No handgun was found pursuant to the search warrant executed at Mr. Siddiqui's residence on May 15, 2018. Certainly Mr. Siddiqui had access to a firearm, in that he possessed one and used it in respect of Mr. Chaudry's kidnapping and extortion; however, the handgun was not found with Mr. Siddiqui's drugs in his bedroom. There was no evidence led before me on the sentencing of Mr. Siddiqui possessing a handgun in connection with his dealings in illicit substances. It is my view the kidnapping and Mr. Siddiqui's involvement and his possession for the purpose of trafficking in crack cocaine and crystal methamphetamines are completely separated offences. This is very similar to the circumstances in R. v. T.G. where there was no connection between the kidnapping offences and the drug offences. There is no connecting link between them and for that reason the sentences imposed for each should be consecutive.

The Appropriate Sentence

[53] As I indicated above, the paramount principles of sentencing are deterrence and denunciation and protection of the public. The use of a restricted handgun during the commission of the kidnapping related offences calls for an exemplary sentence, which is reflected in the mandatory minimum sentence of five (5) years, which was upheld in R. v. McIntyre, supra. However, I must exercise restraint having regard to the fact Mr. Siddiqui is a youthful offender and this will be his first penitentiary sentence – in fact, he has never served a sentence longer than 19.5 days. In my view I cannot impose a custodial sentence that would be crushing to Mr. Siddiqui and would undermine any chance there might be for rehabilitation. It is my view the global sentence sought by the Crown would have that effect and outcome.

[54] It is my view based on the agreed statement of facts, Exhibit 1, and the additional facts raised by Ms. Petrouchinova during submissions, to which the Crown raised no objection, Mr. Siddiqui's and Mr. Ali's actions towards Mr. Chaudry after he was kidnapped were very similar and it is difficult, if not impossible, to differentiate in terms of one being more involved or morally blameworthy than the other. I do not agree with the Crown's submission that Mr. Siddiqui was the most morally blameworthy individual as between the three men involved. In fact, the Crown was unable to point to conduct engaged in by Mr. Siddiqui that would justify the disparity between the Crown's different positions respecting Mr. Ali and Mr. Siddiqui. There was no doubt that Mr. Kakar was less morally blameworthy, as he never possessed or used the restricted handgun. His involvement was assaulting Mr. Chaudry when told to do so by Mr. Siddiqui and as a party to the offences of kidnapping and extortion using a firearm. As a result I agreed with the Crown and defence joint submission of five years in the penitentiary. He was also the first of the three young men to plead guilty and accept responsibility.

[55] The same cannot be said of Mr. Siddiqui and Mr. Ali in terms of their respective involvement and roles in the kidnapping and extortion. In my view they are both in similar positions in terms of their respective roles and conduct towards Mr. Chaudry. Ms. Petrouchinova advised me of the text messages between Mr. Ali and Mr. Chaudry, which prove it was Mr. Ali who arranged the meeting where Mr. Chaudry was kidnapped. I was advised that Mr. Ali had sold "fake" drugs to Mr. Chaudry, who provided them to his friends. This resulted in Mr. Chaudry getting into trouble with his friends whereby he was forced to pay his friends $1500, to make up the difference. Mr. Chaudry and Mr. Ali knew each other's families and had been dealing drugs back and forth with each other. Mr. Ali also believed he owed Mr. Chaudry $1500.00 in respect of this dispute. Mr. Chaudry had made derogatory comments about Mr. Ali concerning this dispute and had threatened Mr. Ali's sister. Mr. Chaudry had sent Mr. Ali and his sister a picture of a gun. Mr. Chaudry indicated to Mr. Ali in a text before the meeting, if he could not get the money, Mr. Ali should bring a "ting," which I was advised was slang for a gun.

[56] In the texts between Mr. Ali and Mr. Siddiqui, which were obtained by the police for the days leading up to the meeting arranged by Mr. Ali with Mr. Chaudry, there was no mention of any planning or setting up of a kidnapping of Mr. Chaudry between Mr. Ali and Mr. Siddiqui. On the day of the kidnapping of Mr. Chaudry there was a text from Mr. Siddiqui asking Mr. Ali to drive him somewhere and Mr. Ali agreed. After Mr. Siddiqui was picked up by Mr. Ali he was driven to where Mr. Ali had arranged to meet Mr. Chaudry. It was Ms. Petrouchinova's submission Mr. Siddiqui ended up in a situation where Mr. Chaudry was kidnapped. She pointed out that Mr. Ali brought the handgun with him and had it with him. In my view this submission is difficult to reconcile with the agreed statement of facts (ASF), which was agreed to by Mr. Siddiqui, where at the top of page 2 it indicates: "Mr. Siddiqui had a restricted handgun in his possession in the car that night." The ASF goes on to say that after Mr. Chaudry got in the car "Mr. Siddiqui took the handgun and pointed it at Arslan Chaudry. While pointing the loaded handgun at Arslan Chaudry, Mr. Siddiqui confronted him about things that he had allegedly said about [Usman Ali]." In my view the ASF presupposes that prior to arriving at Mr. Chaudry's home in Oshawa there had been discussion between Mr. Ali and Mr. Siddiqui and Mr. Kakar, who were all in the car, concerning the kidnapping and extortion of Mr. Chaudry. In my view this leads to the reasonable inference there was some planning concerning the kidnapping, at the very least from the time the other two were picked up and when they arrived at Mr. Chaudry's house.

[57] Mr. Chaudry identified Mr. Ali as being responsible for the kidnapping when he spoke to the police. They were childhood friends and he knew Mr. Ali. The Dodge Charger was registered in Mr. Ali's name. The restricted handgun was found on Mr. Ali's person when he was arrested. Ms. Petrouchinova submitted the distinction between Mr. Ali and Mr. Siddiqui was Mr. Ali was the "directing mind" and Mr. Siddiqui was the "muscle." I agree with that characterization.

[58] Mr. Siddiqui is a youthful offender who has the support of his family. He has expressed to me and in the pre-sentence report his desire to change his ways and not engage in similar conduct and behaviour in the future. In my view there is a very real prospect of his being rehabilitated and the length of any sentence I impose will be significant in recognizing this potential. As I have expressed above it is my view the Crown's position would be crushing to Mr. Siddiqui and does not adequately recognize the sentencing principle of rehabilitation and reintegration into the community after completing the sentence imposed.

[59] Ms. Petrouchinova points out that on the video Mr. Siddiqui speaks as someone who is intoxicated or high. It is my view it would be difficult for me to determine solely from listening to the videos involving Mr. Siddiqui and his conduct towards Mr. Chaudry that he was under the influence of alcohol and/or drugs. However, there is an admission by Mr. Siddiqui in the PSR that his consumption of alcohol and illicit substances contributed to his conduct during the incident with Mr. Chaudry. The Crown did not seek to cross-examine Mr. Siddiqui on this admission or to challenge Ms. Petrouchinova's assertion, which she made during her submissions. Consequently, I find that alcohol and illicit substances played a role in Mr. Siddiqui's involvement in these offences.

[60] The Crown conceded during submissions that there is a joint submission of six (6) years for Mr. Ali respecting the kidnapping using a restricted handgun and other offences, if he pleads guilty. The preliminary inquiry was adjourned for that to occur, but Mr. Ali discharged his lawyer and I was advised it is currently unknown if Mr. Ali still intends to plead guilty. As I discussed at the outset of these reasons Mr. Siddiqui was also moving towards a preliminary inquiry, however, similar discussions between Mr. Guertin and Ms. Petrouchinova led to Mr. Siddiqui's guilty plea being entered before me prior to the commencement of the preliminary.

[61] It is my view the position taken by the Crown respecting Mr. Ali, on the totality of the facts as they have been made known to me, is inconsistent with the position he has taken respecting Mr. Siddiqui. As I discussed above, it is my view that Mr. Ali's and Mr. Siddiqui's roles are quite similar, and the aggravating circumstances are also quite similar. I believe I was advised Mr. Ali did not have a prior record, which would be an additional mitigating circumstance to be considered. However, the restricted handgun involved in the kidnapping was Mr. Ali's and it was found on his person when he was arrested the evening of the day Mr. Chaudry was kidnapped and after he reported the incident to the police. Mr. Ali had the prior relationship with Mr. Chaudry. Mr. Ali owed Mr. Chaudry $1500 because Mr. Ali had sold him "fake" drugs. Mr. Chaudry had made threats against Mr. Ali and his sister and Mr. Chaudry also sent Mr. Ali and his sister a picture of a handgun. Further, it was Mr. Ali who arranged the meeting with Mr. Chaudry where he was kidnapped (see text messages in Exhibit 7). Mr. Ali was also in possession of the loaded handgun during the four hours Mr. Chaudry was kidnapped and he pointed it in Mr. Chaudry's face and made Mr. Chaudry open his mouth, so he could place the loaded handgun in it. Finally, when Mr. Chaudry was dropped off at the side of the road, it was Mr. Ali who gave the bullets to Mr. Chaudry and said he was putting the bullets in his hand instead of his head.

[62] It is my view Mr. Ali's conduct and role makes him as morally blameworthy as the conduct engaged in by Mr. Siddiqui towards Mr. Chaudry. I find it is impossible to differentiate between Mr. Ali's and Mr. Siddiqui's roles and conduct such that the disparate sentences sought by the Crown could be supported as appropriate sentences.

[63] Section 718.2(b) indicates:

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

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

[64] As indicated above "sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction" (R. v. M. (C.A.), supra). In R. v. Courtney, 2012 ONCA 478, [2012] O.J. No. 3087, in para. 4, the Ontario Court of Appeal held:

The parity principle does not require that all co-accused be subject to the same sentence, or even that they be treated similarly for sentencing purposes. On the contrary, disparate sentences for different offenders, for the same offence, do not violate the parity principle so long as they are warranted by all the circumstances.

[65] The parity principle in s. 718.2(b) has its clearest application in cases involving co-accuseds, whether sentenced by the same judge or different judges (see R. v. Blanas, [2006] O.J. No. 364 (C.A.), at para. 5).

[66] Consequently, the appropriate sentence for the offence of kidnapping using a restricted handgun, considering the joint sentence proposed for Usman Ali, is six (6) years. Although, it is my view, but for the joint position of the Crown for Mr. Ali, an appropriate range of sentence for both Mr. Ali's and Mr. Siddiqui's roles and their conduct towards Mr. Chaudry, would have been six (6) to eight (8) years in the penitentiary. As I indicated earlier, it is a significant mitigating circumstance that Mr. Siddiqui pleaded guilty prior to the commencement of his preliminary hearing and this fact differentiates Mr. Siddiqui's case from the cases provided by the Crown where sentencing occurred after a trial (see Crawford, Powell, Stephens, and Jones, where accused pleaded guilty after three weeks of trial). The closest case, on its facts, to Mr. Siddiqui's case, is R. v. T.G., who was sentenced after a trial and received 5 years for kidnapping with a loaded firearm, together with a consecutive sentence of 2.5 years for possession for the purpose of trafficking in heroin/fentanyl and crack cocaine.

[67] A further distinguishing feature in this case is that Mr. Chaudry was not kidnapped where a ransom was sought by the kidnappers, which the caselaw seems to suggest is a more serious aggravating circumstance (see Powell, supra, at paras. 29-35).

[68] I must also be cognizant of the principle of totality and knowing I will be imposing a consecutive sentence for the possession for the purpose of trafficking offence, it is necessary to impose a sentence at the low end of the range of six (6) to eight (8) years I identified above, namely six (6) years, which, when combined with the sentence I intend to impose for the drug offence, would be a manageable sentence for Mr. Siddiqui and not destroy his prospects of rehabilitation yet at the same time reflect the seriousness of these offences and Mr. Siddiqui's moral culpability in relation to them.

[69] It is my view a sentence of six (6) years imposed for the kidnapping using a restricted handgun is an exemplary sentence, particularly for a youthful offender with only a minor youth and adult criminal record where the longest time spent in custody was 19.5 days in pre-trial custody. This will be a first penitentiary sentence and even with the reduction of pre-trial credit on a 1.5 to 1 basis, the remaining sentence will be a significant penitentiary sentence. The sentences for the other charges arising out of the kidnapping offence will be as follows: the extortion using a firearm is six (6) years concurrent; the sentence for the possession of a loaded handgun is three (3) years concurrent and the sentence for the aggravated assault is two (2) years concurrent. The sentence respecting the breach of probation charge is 30 days concurrent.

[70] The possession for the purpose of trafficking charge arose from the Schedule 1 illicit substances, (crack cocaine (4.3 ounces) and methamphetamine (1.46 ounces)), found in Mr. Siddiqui's possession at the time of his arrest. The range of sentence for cases dealing with possession for the purpose of trafficking of crack cocaine or crystal methamphetamine appears to be in the range of 6 months to 2 years less a day for low level quantities (up to an ounce) (see R. v. Woolcock, [2005] O.J. No. 4927 (C.A.) and R. v. Giroux, 207 C.C.C. (3d) 512 (Ontario C.A.), at para. 66) and for mid-level quantities (1 ounce to 1 kilogram) high reformatory or penitentiary range depending on the aggravating and mitigating circumstances involved in the case (R. v. Barkhouse, 2017 ONCA 29; R. v. Barnham, 2014 ONCA 797; R. v. Harrison, 2009 ONCA 386; R. v. Bajada, [2003] O.J. No. 721 (C.A.); and R. v. Thomas, [2016] O.J. No. 6492 (SCJ, Goldstein J.). Mr. Siddiqui was also in possession for the purpose of trafficking in crystal methamphetamine (1.46 ounces).

[71] As I indicated earlier these quantities demonstrate Mr. Siddiqui was a mid-level drug dealer who was dealing in ounces of serious Schedule 1 substances for commercial gain. The cases support a sentence in the low penitentiary range. In my view the appropriate range of sentence for the quantity of illicit substances possessed by Mr. Siddiqui, as well as the proceeds of crime of $8900.00, which were seized, without regard to the kidnapping counts warrant a penitentiary sentence of 2 1/2 to 4 years based on the sentencing caselaw having regard to the very dangerous nature of these Schedule 1 substances and the menace they pose for society.

[72] Determining a fair and proportionate sentence requires more than just adding up all the appropriate sentences on the individual counts and imposing the total. The drug offence is completely separate from the kidnapping charges. They are different in nature, time and place. There is no connecting link between them. As I have already indicated the sentence for the drug offence should be consecutive to the sentence for kidnapping. Applying the sentencing principle of totality, it is my view the appropriate consecutive sentence for the possession for the purpose of trafficking is a sentence of two (2) years consecutive to the six (6) years sentence I imposed for the kidnapping with a firearm offences. Consequently, the total sentence is eight (8) years less credit provided for pre-trial custody.

[73] Mr. Siddiqui has been in custody since he was 19 years of age. I was advised by counsel he has been in pre-trial custody for 469 days. He will receive credit for his pre-trial custody on a 1.5 to 1 basis of 703 days, pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[74] The defence is also requesting enhanced credit pursuant to the decision in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.) because of the harsh conditions he experienced in terms of the number of lockdowns at CECC during his incarceration. I received a letter, as part of Exhibit 6, from Sheena McWhinnie, Manager, Security & Investigations MCSC, MECC, dated June 21, 2019, which reflected Mr. Siddiqui was subject to 11 occasions of lockdowns of less than 6 hours and 48 occasions where his unit was locked down for 6 hours or more (the exact number of hours is set out in the letter – 463.5 hours or the equivalent of 19.31 days). Ms. McWhinnie's letter covers the time period from May 16, 2018 to July 16, 2018 and July 24, 2018 to February 22, 2019. I was advised by Ms. Petrouchinova that Mr. Siddiqui was transferred to Central North Correctional Centre in Penetanguishene because of overcrowding. I was not provided a letter in respect of lockdowns at this facility and I was not provided a letter for the period of June 25, 2019 to August 26, 2019. The defence argued enhanced credit for harsh conditions during a defendant's incarceration, which includes lockdowns, not being permitted outside, triple bunking in a two bunk cell, and being deprived of the various programs offered by the institution, showers, visits and phones because of the lockdowns has been recognized by the Ontario Court of Appeal in R. v. Duncan, supra. I was not provided an affidavit from Mr. Siddiqui as to what impact these lockdowns have had on him.

[75] Let me indicate first there is no rigid or mathematical formula to be given by a sentencing judge for enhanced credit. Second, the Ontario Court of Appeal has indicated in several recent decisions a concern as to what circumstances will justify enhanced credit. In R. v. Gregoire, 2018 ONCA 880, [2018] O.J. No. 5713, Paciocco J. held the sentencing judge did not err in determining not to give enhanced credit to the accused because of the number of days he spent in lockdown and in overcrowded cells. Mr. Gregoire received pre-trial credit of two years and two months, which reduced the eight year sentence for manslaughter to five years and ten months. Miller J. wrote a concurring judgment expressing that further guidance by the Court of Appeal was needed as to what circumstances may justify enhanced credit. He indicated this may require an explanation of the doctrinal foundation for the practice of granting enhanced credit outside of s. 719(3.1) considering the decision in R. v. Summers, supra.

[76] What is clear from the record before me is that Mr. Siddiqui's experience of lockdowns and triple bunking at CECC did not come close to approaching the lockdowns and lack of fresh air that is reflected in the cases of R. v. Nsiah, [2017] O.J. No. 526 (SCJ, Goldstein J.); R. v. Jama, 2018 ONSC 1252, [2018] O.J. No. 1130 (SCJ, Goldstein J.); R. v. Inniss, 2017 ONSC 2779, [2017] O.J. No. 2420 (SCJ, Forestell J.); and R. v. Crawford, 2018 ONSC 7582, [2018] O.J. No. 6697 (SCJ, Campbell J.). This was referred to in another decision in the Ontario Court of Appeal, R. v. Ledinek, 2018 ONCA 1017, [2018] O.J. No. 6503, where Hourigan J. for the Court referred to the reasons of Justice Penny in the Superior Court who declined to exercise his discretion in granting Mr. Ledinek any additional credit. In my view the number of occasions Mr. Siddiqui was subjected to lockdowns at CECC allows me to exercise my discretion and I grant a further 45 days reduction in sentence, for a total credit of 748 days, leaving a custodial sentence of 5 years and 347 days remaining.

Released: August 26, 2019

Signed: Justice Peter C. West