Court File and Parties

COURT FILE NO.: CR-704/13 DATE: 20160805

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - AHMED FARAH

Counsel: Grace Hession David, for the Crown Katie Scott, for the accused

HEARD: June 27, 2016

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

[1] At the conclusion of his lengthy jury trial, the accused, Ahmed Farah, was found guilty of three offences, namely: (1) between March 18 and June 13, 2013, he committed the indictable offence of “weapons trafficking” for the benefit of, or in association with, a criminal organization, contrary to s. 467.12 of the Criminal Code, R.S.C. 1985, chap. C-46; (2) on May 7, 2013, he conspired to commit the indictable offence of trafficking firearms, contrary to s. 465(1)(c) of the Criminal Code; and (3) on April 10, 2013, he possessed a firearm knowing that he was not the holder of a license or registration certificate under which he could lawfully possess it, contrary to s. 92(1) of the Criminal Code. The accused now appears for sentencing.

[2] The parties advanced divergent positions as to the appropriate duration of the penitentiary sentence of imprisonment that should be imposed upon the accused. The Crown argued that the accused should be given a global sentence of 16 years imprisonment, less the appropriate credit for his pre-sentence custody. Defence counsel argued, on the other hand, that the accused should be given a global sentence of approximately ten years imprisonment, less the appropriate credit for his pre-sentence custody.

[3] The accused has been in custody since his arrest on June 13, 2013. Accordingly, he has already served close to three years and two months in custody. The parties disagreed as to whether the accused should be given any enhanced credit for this time in pre-sentence custody. Defence counsel argued that the accused should be given the statutory maximum of 1.5 days credit for every day that he has served in pre-sentence custody. The Crown argued, however, that by virtue of his misconduct while in jail prior to sentencing, the accused was disentitled to any enhanced credit, and should be given only the statutory minimum of one day credit for every day he has already served in custody.

[4] The parties have also joined issue over whether there should be an order, pursuant to s. 743.6(2.1) of the Criminal Code, that the accused must serve one-half of his sentence for his “criminal organization” offence before being released on full parole. The Crown argued that the order should be made, while defence counsel argued that there should be no such order.

B. The Nature of the Offences

1. The Weapons Trafficking/Criminal Organization Offence

[5] With respect to the conviction for weapons trafficking for the benefit of, or in association with, a criminal organization, I am satisfied beyond a reasonable doubt that the accused was one of the veteran leaders of a criminal organization known as the “Dixon City Bloods” and engaged in at least three instances of weapons trafficking for the benefit of, or in association with, that urban street gang. These conclusions are consistent with the verdict returned by the jury. See R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18; R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59.

[6] First, as revealed in the interceptions of the private communications, between March 19 and 21, 2013, the accused arranged for the transportation and sale of a fully loaded .40 calibre firearm to Abdulkadir Bihi, for $3,000. The firearm was originally going to be sold to Ahmed Dirie, but was, in fact, sold to Mr. Bihi, who was quite pleased with his purchase. The accused had acquired the firearm in Windsor for $1,600, so he turned a tidy profit on the transaction. During the conversations surrounding this sale, the accused commented that he had other firearms for sale.

[7] Second, on March 31, 2013, the accused was involved as a party in the transportation of five firearms, between Windsor and Toronto, by Ahmed Abdullahi and Daud Hussein, driving a white Chrysler. The accused had been involved in the arrangements surrounding this firearm transportation, and had been planning to resell at least one of the firearms. The accused expressed his displeasure when the police intercepted this transportation of the firearms and, following a high-speed police chase, managed to seize three of the five firearms, and some ammunition. More particularly, from a black bag on the front passenger seat of the abandoned Chrysler, the police seized: (1) a black semi-automatic 9 mm. Ruger handgun, Model P95, with a detachable box 9 mm. magazine, with an aftermarket marking that suggests it is capable of holding 15 rounds of ammunition; (2) another black semi-automatic 9 mm. Ruger handgun, Model P95, with a detachable box 9 mm. magazine; and (3) a black semi-automatic .40 calibre Smith & Wesson, handgun, Model M&P40, and detachable .40 calibre magazine, marked with a capacity of 15 rounds of ammunition.

[8] Third, on April 6, 2013, the accused was personally involved in the sale of a firearm at the Etobicoke Restaurant, located at 379 Albion Road, with Ayanle Omar. Following the transaction at the restaurant, the accused managed to successfully flee from the police who had observed the transaction and sought to arrest the accused. Later, the accused bragged to others about how he had been able to escape from the police.

2. The Conspiracy to Traffick in Firearms Offence

[9] As collectively revealed by the various intercepted private communications, between May 2 and 7, 2013 the accused was involved in a conspiracy with Siyadin Abdi and Lamar Porter to sell firearms to Ibrahim Khiar. In the end, the accused sold two firearms to Mr. Khiar for $2,500 each. When Mr. Khiar was arrested on May 7, 2013, following police surveillance, he was found in possession of two .40 calibre Smith & Wesson semi-automatic handguns, two over-sized magazines, and ammunition.

3. The Unlawful Possession of a Firearm Offence

[10] During various intercepted communications involving the accused, Abdukadir Bihi, and Ayanle Omar, that took place between April 8 and 10, 2013, the accused admitted being in possession of a loaded firearm. While he initially claimed that it was not working properly as he was not able to load it with any more than ten bullets, the accused subsequently offered it for sale to Mr. Omar. As the parties agreed, at no point in time did the accused ever have a firearms acquisition or registration certificate or license for any firearm.

C. The Personal Circumstances of the Accused

[11] The accused was born on May 7, 1983, and is now over 33 years of age. He was born in Dubai, but his family came to Canada in 1989, when he was six years old. He is the youngest of three children in his family. Their family moved to the Dixon Road area in Toronto when the accused was approximately ten years of age, and he attended elementary school, middle school, and high school in that area.

[12] The accused’s father is a successful business man, with African retail construction interests in Kenya and Ethiopia. His mother is a successful business woman, with a number of retail clothing stores. The accused continues to enjoy the support of his family members.

[13] There was one especially important event in his life when he was but 17 years of age. In January of 2001, the accused was assaulted, and received multiple stab wounds, while he was at school. These wounds caused serious internal injuries, including lacerations to his lung, liver and nerve network. He required significant hospitalization, emergency surgery and many stitches to close his wounds, and he suffered partial paralysis of his right arm. According to his family doctor, the accused was still suffering from the lingering effect of the severe emotional and psychological trauma from this incident in the summer of 2001, as he remained anxious, depressed, withdrawn and apathetic, and he slept poorly, with frequent nightmares and flashbacks. The accused was scared to go back to school, but still managed to successfully complete his high school education from a distance. While this violent incident took place some 15½ years ago, there was some suggestion that the accused was still suffering some trauma from this incident as recently as 2010, and might still benefit from some counselling.

[14] The accused has a lengthy criminal record. As a young person, the accused was found guilty of theft under $5,000 (in 2000) and obstructing a peace officer (in 2001) and given probationary dispositions. His adult criminal record extends between 2001 and 2013 and includes 14 further convictions, including convictions for assault, robbery, obstructing a peace officer, assault with intent to resist arrest, possession of a Schedule I substance under the Controlled Drugs and Substances Act, S.C. 1996, chap. 19, theft under $5,000, failing to comply with a probation order, failing to comply with a recognizance, and driving a motor vehicle with more than 80 gms. of alcohol per 100 mls. of blood. As a result of these numerous convictions, the accused has received a variety of sentences, including probationary terms, fines, and relatively short terms of imprisonment. His longest previous sentence, however, is three months imprisonment. The accused has twice previously been prohibited from the possession of any firearm, weapon, ammunition, or explosive substance.

[15] Between 2002 and 2004, when the accused was 19 to 21 years of age, he went to Malaysia, where he attended college/university, supported financially by his parents, and where he studied multi-media and graphic design. The accused still has an interest in these subjects. During the time that he was in Malaysia, the accused had no trouble with the law.

[16] The accused returned to the Dixon Road area in 2004, when his mother was diagnosed with cancer and became quite ill and endured surgery. This was a difficult time for their family, and the accused apparently became quite angry and depressed, and refused to listen to his family, determined to make his own way in the world. As his criminal record reveals, he again started committing criminal offences.

[17] For the six year period between 2006 and 2012 the accused moved west to Alberta, where he met a young woman who is now his fiancée. She remains very supportive of the accused, and they have plans to marry once the accused has completed his sentence in this case. In Alberta during this time the accused worked for significant periods of time in two jobs in the oil camps cleaning and serving food. As his criminal record reveals, he was not involved in any criminal activities during this time period. This is the longest gap in his criminal record.

[18] Notwithstanding his past criminal record, and the criminal offences currently before the court, the accused claims to now be ready to make a positive change in his life and become a more productive and contributing member of society. Defence counsel filed two letters of general support – one from the Somali-Canadian Association of Etobicoke and one from the Khalid Bin Al-Walid Mosque – with the latter organization offering various counseling services to the accused to help him make positive changes in his life and become a more useful and productive member of his community. Apparently, the accused will engage these support services from the Mosque once he has completed his sentence in relation to the present offences. Having had the opportunity while in custody to reflect on his life, the accused has indicated that he now hopes to be able to pursue a career where he can use his abilities in design and drawing.

D. The Governing Sentencing Principles

[19] Pursuant to s. 718 of the Criminal Code, 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 “just sanctions” that have one or more of the following objectives, namely: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[20] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[21] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

E. The Aggravating and Mitigating Circumstances of this Case

[22] The aggravating circumstances of this case include the following considerations:

• The accused was one of the veteran leaders of the urban street gang known as the “Dixon City Bloods,” operating primarily from the vicinity of the high rise apartment buildings on Dixon Road between Islington and Kipling Avenues in Toronto. The jury concluded that this street gang was a “criminal organization.”
• The evidence established that the accused was involved in numerous instances of firearms/weapons trafficking offences for the benefit of, or in association with, this criminal organization. See Criminal Code, s. 718.2(a)(iv).
• The accused took many steps to avoid police detection and apprehension, including: (1) speaking in coded street slang in an effort to disguise and conceal his criminal activities; and (2) fleeing from the police on foot to avoid arrest when caught in the commission of a serious criminal offence.
• The accused has a lengthy criminal record. Further, from the content of the many intercepted private communications, it appears that, at least at times, the accused was quite committed to the violent life of a “thug” operating in the upper echelon of an organized urban street gang, and making a living from the commission of serious criminal offences.

[23] On the other hand, there are a number of mitigating circumstances in this case. More particularly, the following mitigating factors must be considered:

• The accused is a 33 year old man, with a college/university education, a periodic work record, and a supportive fiancée and family.
• While the accused has a lengthy criminal record, his longest previous sentence is only of three months duration, and there are some gaps in his record that suggest that he is capable of pursuing a positive and productive lifestyle for periods of time.
• The accused now aspires to pursue a more positive and productive lifestyle, perhaps a career in design, and recently he has started some courses and programs while in detention in an effort to display that commitment.

[24] I note, however, that the accused does not have the benefit of the mitigating factor of remorse. The accused did not plead guilty to the offences, but rather had a jury trial – as he was fully entitled to do. Further, at no subsequent point did the accused ever accept responsibility for his offences, or reveal any evidence of any genuine remorse for those offences. This absence of remorse is in no way an aggravating circumstance on the issue of sentence. However, neither does remorse provide the accused with any mitigation on the issue of sentence. See R. v. Kozy (1990), 58 C.C.C. (3d) 500 (Ont.C.A.), at pp. 505-506; R. v. Anderson (1992), 74 C.C.C. (3d) 523 (B.C.C.A.), at pp. 535-536; R. v. Brown, [1993] O.J. No. 624 (C.A.); R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont.C.A.), at para. 80-85; R. v. L.(C.), 2013 ONSC 277, [2013] O.J. No. 114, at paras. 80-81.

F. The Global Sentence Merited by the Offences and the Offender

1. Introduction

[25] For the following reasons, I have reached the conclusion that, in all of the circumstances of the present case, the accused should receive a global, total sentence of 12 years imprisonment. More particularly, in my view, the accused should receive: (a) a sentence of three years imprisonment for his unlawful possession of a firearm; (b) a consecutive sentence of one year imprisonment for his conspiracy to commit the offence of firearms trafficking; and (c) a consecutive sentence of eight years imprisonment for his “weapons trafficking/criminal organization” offence. That is the effective sentence that will be imposed upon the accused today, less the credit for his time in pre-sentence custody.

[26] While the three offences committed by the accused were all related, in the sense that they were all firearms offences committed during the same general period of time between March 18 and June 13, 2013, in my view consecutive sentences are appropriate given that each offence is based upon independent events and separate firearms offences during this three month period of time, and only some of the firearms transactions were for the benefit of, or in association with, a criminal organization. Further, I have only reached my conclusions regarding each individual sentence after carefully considering the overriding principle of totality. As stated in s. 718.2(c) of the Code, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” See R. v. Jewell (1995), 100 C.C.C. (3d) 270 (C.A.), at p. 279; R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, at para. 42; R. v. Johnson, 2012 ONCA 339, 291 O.A.C. 350, at para. 18; R. v. Beauchamp, 2015 ONCA 260, 333 O.A.C. 87, at paras. 294-295.

2. The Firearms Possession Offence

[27] As I have indicated, taking into account all of the circumstances of this case, in my view, the firearms possession offence committed by the accused requires the imposition of a three year penitentiary term of imprisonment. This offence was no mere “regulatory” matter. The accused is not an otherwise responsible and law-abiding gun owner who inadvertently failed to obtain a proper license or registration, or possessed a firearm in a location not within the geographic scope of his permit. Instead, the accused was engaged in true criminal activity. He clearly had no legal authorization to possess any firearm in any location, and simply had no business possessing any firearm. Indeed, I am satisfied beyond a reasonable doubt that the accused possessed this firearm as one of the necessary tools of the trade in firearms trafficking. In any event, his clearly unlawful possession of this firearm was a very serious criminal offence, created a significant public safety risk, and merits the imposition of a three year term of imprisonment. See R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 4, 6, 51-53, 107-109, 144, 206, affirmed, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 5, 82, 120.

[28] The criminal possession of handguns in such circumstances remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in some other criminal activity, such as drug trafficking or, as in the present case, weapons trafficking. On occasion, the possession of such firearms results, quite tragically, in serious bodily harm or death. Simply stated, the unlawful possession of firearms is a menace to society. Therefore, the criminal possession of such illegal firearms must be met with custodial sentences that proportionally reflect the gravity of the offence and appropriately stress the need to denounce and deter such serious crimes. The public must be adequately protected, and such protection can only be provided by sentences that ensure potential offenders know that their illegal possession of handguns will almost invariably result in serious penal consequences. See R. v. Danvers (2005), 199 C.C.C. (3d) 490, 201 O.A.C. 238 (C.A.), at para. 78; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14; R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995, at paras. 10, 58, affirmed, 2013 ONCA 223, 305 O.A.C. 47; R. v. Chambers, 2012 ONSC 817, [2012] O.J. No. 462, at paras. 15-17, affirmed, 2013 ONCA 680, 311 O.A.C. 307; R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644, at paras. 13-14; R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614, at paras. 22, 24, affirmed, 2015 ONCA 8, 319 C.C.C. (3d) 191.

[29] As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, “[m]ost s. 95 offences will attract a penitentiary term even for first offenders,” and even “less serious” versions of the crime than are typically committed “will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” See also R. v. Nur, at paras. 107-109, 206, affirming on this point, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at paras. 41-45, 49-52, 70, 145-149; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710, at paras. 9, 20-25; R. v. Husaini, 2013 ONSC 7737, [2013] O.J. No. 5832, at paras. 24-29; R. v. Carrol, 2014 ONSC 2063, [2014] O.J. No. 1749, at paras. 21-28; R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52, at para. 9.

[30] Of course, the accused in the present case is not a youthful first offender. He is a relatively mature 33-year-old man with a significant criminal record, including some convictions for acts of violence. Accordingly, in my opinion, before taking into account the credit to which the accused is entitled as a result of his lengthy pre-sentence detention, the proper application of the applicable sentencing principles, in all of the circumstances of this case, results in the imposition of a three year penitentiary term of imprisonment for the accused’s unlawful possession of a firearm.

3. The Conspiracy to Traffic in Firearms Offence.

[31] If the unlawful possession of firearms is a serious offence that calls for the imposition of a penitentiary sentence that stresses denunciation and deterrence in order to properly protect the public, the same can only be said of the offence of conspiracy to traffick in firearms. Offenders who traffick in firearms or conspire to traffic in firearms are individuals who are engaged in the business of obtaining and selling illegal firearms to potential buyers who wish to unlawfully possess them. Individuals would not be able to so conveniently possess such inherently dangerous illegal firearms, if they were not provided by those who traffick in them. Indeed, it is arguable that the offence of conspiracy to traffick in firearms (even without the commission of the substantive offence) is an offence of greater seriousness than the offence of unlawfully possessing such a firearm.

[32] Were it not for the fact that this conspiracy offence is entirely separate from the possession offence and, therefore should attract a consecutive term of imprisonment, I would have been inclined to impose a sentence in the vicinity of four years imprisonment for this offence. See R. v. Marakah, 2015 ONSC 1576, [2015] O.J. No. 1155, at paras. 26-32. However, having regard to the important overriding consideration of the totality of the sentence to be imposed, in my view the accused should only be given an additional one year consecutive term of imprisonment in relation to the conspiracy offence.

4. The Weapons Trafficking/Criminal Organization Offence

[33] The offence of weapons trafficking for the benefit of, or in association with, a criminal organization, is clearly the most serious offence committed by the accused, and it requires the imposition of a significant penitentiary term of imprisonment.

[34] In committing this offence the accused was not merely in unlawful possession of inherently dangerous illegal firearms. Nor had the accused simply agreed to engage in firearms trafficking, or been engaged in one isolated instance of firearms trafficking. While those offences, as I have tried to emphasize, are extremely serious, and place public safety at great risk, they are clearly not as serious as the crime of “weapons trafficking for a criminal organization.” In addition to those other less serious offences, the accused was engaged, over a period of time, in the business of weapons trafficking, for the benefit of, or in association with, a criminal organization. More particularly, over a period of months, the accused, a senior leader of the Dixon City Bloods, an urban street gang, engaged in a number of concrete instances of firearms trafficking, purely for financial reward, for the benefit of, or in association with, this criminal organization.

[35] In my view, such offences, with their resulting proliferation of gun crimes, create such dangerous circumstances, and cause such a cascading risk to public safety, that they should invariably be met by sentences that approach double-digits, at least for offenders with criminal records. Such offences must be emphatically denounced. Exemplary sentences must be imposed. Such criminal organizations and their members must be deterred from engaging in such offences. In all of the circumstances of the present case, this offence by the accused deserves the imposition of an eight year term of imprisonment.

[36] As A.J. Omarra J. stated in R. v. Marakah, at para. 41, offenders who “put illegal firearms into the hands of those who may use them for criminal purposes and in so doing may kill or harm others need to know that they shall pay dearly for their crimes by the loss of liberty for very long periods of time.” This is especially so when such weapons trafficking offences are committed for the benefit of, or in association with, a criminal organization. This principle was articulated by Trafford J. in R. v. Abdullahi, 2015 ONSC 4163, [2015] O.J. No. 3443, at paras. 33-34:

The possession of a firearm may lead, directly or indirectly, to a random or intentional act of violence, including the death of an innocent person in the area of any confrontation involving the use of the firearm. Firearms are used to further a criminal intent. Unforseen provocative circumstances may lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation and societal consequences that go with it. …..

The trafficking of firearms is a necessary pre-condition to such use in the community. It is crime to facilitate crime. Those who buy and sell firearms know the risk of serious bodily harm or death inherent in their eventual use on the streets in connection with drug deals, robberies, homicides and other crimes of violence. Nevertheless, they proceed to deal in them for financial or other reasons. While such trafficking may not make such dealers parties to the many crimes committed by the ultimate users of the firearms, such trafficking is an indispensable step in the chain of events leading to such tragedy on the streets. For these reasons, the trafficking of firearms attracts the same emphasis on general and specific deterrence and denunciation as do the crimes of violence committed by the actual users of the firearms in my view.

Moreover, principles of general and specific deterrence and denunciation apply with even greater force having regard for the criminal organization legislation and its application to this case. They are the primary sentencing objectives for offences under s. 467.11 of the Code, participation in the activities of a criminal organization, and the related ones. See R. v. Beauchamp, at paras. 260-268, where the Court, in taking this position, emphasized the requirement of consecutive sentences for related crimes, the presumption of parole ineligibility for one half a sentence greater than two years and the treatment of the commission of a crime related to a criminal organization as an aggravating circumstance. The court must avoid double punishment for an aggravating circumstance yet recognize that organized criminal activity presents greater risks to the community.

[citation omitted – emphasis added]

[37] I have reached the conclusion that an eight year penitentiary term of imprisonment is required for the “weapons trafficking/criminal organization” offence, notwithstanding the fact that this sentence, in my view, must be served consecutively to the other sentences imposed upon the accused, and notwithstanding the overriding issue of the totality of the sentence imposed.

[38] The sentence for this offence must be consecutive because the offence is based upon events and criminal conduct independent of the commission of the other offences. While it might accurately be said that an offender who commits the offence of firearms trafficking necessarily commits the other offences of conspiracy to traffick in firearms and the unlawful possession of a firearm, the manner in which the accused committed his offences involved no overlap between the three offences. They were entirely independent events and offences, involving different firearms on different dates. Further, his firearms trafficking activities were committed for the benefit of, or in association with, a criminal organization.

[39] Alternatively, and in any event, even if all of the offences by the accused could properly be said to have arisen out of the “same event or series of events,” the sentence imposed upon the accused would still have to be consecutive by virtue of the operation of s. 467.14 of the Criminal Code, given that the offence of weapons trafficking was committed by the accused for the benefit of, or in association with, a criminal organization.

[40] If the accused had committed only the “weapons trafficking/criminal organization” offence, I would have been inclined to impose a penitentiary sentence in the vicinity of ten years duration. The imposition of the lesser eight year term, however, is required by virtue of the overriding consideration regarding the totality of the sentence imposed.

[41] I observe in passing that the parties agreed that the sentence for this offence was required to be served consecutively, and the Crown sought the imposition of a nine year prison sentence, while defence counsel sought the imposition of a seven to eight year prison sentence, for this offence.

G. Credit for Pre-Sentence Custody

[42] As I have indicated, the accused has been in custody for close to three years and two months. While defence counsel contended that the accused is entitled to the maximum enhanced credit for this time in custody, the Crown argued that the accused is not entitled to any enhanced credit, and his pre-sentence custody should simply be credited at the standard minimum of one day of credit for each day of custody.

[43] In support of its argument that the accused has disentitled himself to any enhanced credit, the Crown led evidence as to the history of misconduct by the accused while in pre-sentence custody. More particularly, the Crown established that the accused had committed eight institutional offences, including wilfully disobeying an officer’s order, making gross insults to staff, having contraband, and threatening or committing assaults.

[44] Most significantly, the Crown established, through video recordings from the custodial facility where the accused was detained, that the accused committed two very serious assaults on other inmates. First, on January 13, 2014, the accused and another member of the Dixon City Bloods gang attacked a third inmate and gave him a severe and extended physical beating, punching and kicking him numerous times, and continuing the beating even after being repeatedly told to stop by staff members. The beating did not finally conclude until more than a dozen correctional staff physically intervened in the matter. Second, on September 30, 2014, the accused attacked another inmate with a knife-like implement, or “shiv” or “shank,” and sliced him across the face, causing a serious injury to the other inmate, and requiring hospitalization. The accused received institutional punishments for these various misconducts.

[45] In my view, this unfortunate history of institutional misconduct by the accused must adversely impact upon the credit he is to receive for his pre-sentence custody.

[46] In R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the Supreme Court of Canada concluded, at para. 70, that, in determining the appropriate credit for pre-sentence custody, courts must continue to assign credit on the basis of the “quantitative rationale” for such credit, namely, in order to account for lost eligibility for early release and parole during presentence custody, and also on the basis of the “qualitative rationale” for such credit, namely, in order to account for the relative harshness of the conditions that exist in detention facilities. Accordingly, I will consider each of these rationales in the factual circumstances of this case.

[47] Considering the “quantitative rationale,” in my view the accused is entitled to little if any enhanced credit for his pre-sentence custody. His history of serious institutional misconduct, including two incidents of extreme violence against other inmates, establishes that the accused would not likely be given any form of early release or parole for his time in pre-sentence custody. See R. v. Summers, at paras. 71, 75, 79. In this regard, the following passages from the decision of the Court of Appeal for Ontario in R. v. Abdullahi, 2015 ONCA 549, [2015] O.J. No. 3944, at paras. 18-19, are equally applicable to the circumstances of the present case:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1. The credit is not, however, automatic. If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit: Summers, at paras. 71, 79; R. v. Nelson, 2014 ONCA 853, 2014 O.J. No. 5729, at paras. 51-53.

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges. His conduct could hardly be worse. Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody. There is no realistic possibility that the appellant will be given any form of early release or parole. Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit.

[emphasis added]

[48] Considering the “qualitative rationale,” however, the accused must fairly be given some enhanced credit for the relatively harsh conditions of his pre-sentence custody. In this regard, defence counsel led evidence establishing that the accused was subject to “lock-down” conditions in pre-sentence custody for nearly 190 days, or well over six months in total.

[49] There are no mathematical formulae that can be conveniently applied to simply generate the appropriate credit for pre-sentence custody in the unique circumstances of each individual case. In each case it is a matter of carefully considering and balancing how the quantitative rationale and the qualitative rationale are potentially applicable, and arriving at a fair and appropriate credit. In all of the circumstances of the present case, in my view a fair and appropriate credit for the nearly three years and two months of pre-sentence custody already served by the accused is a total credit of four years imprisonment. That is a credit somewhat greater than 1.25 days credit for every day of pre-sentence custody served by the accused. Accordingly, the sentence that I would otherwise have imposed upon the accused will be reduced by four years imprisonment.

H. The Sentence Imposed

[50] Having concluded that the accused is entitled, pursuant to s. 719(3.1) of the Criminal Code and the decision in Summers, to a credit of four years imprisonment for his lengthy period of pre-sentence custody, the total sentence of 12 years imprisonment that would otherwise have been imposed upon the accused is reduced thereby to a total sentence of eight years of imprisonment. More particularly, the accused is sentenced to a two year term of imprisonment for his firearms possession offence, to a one year consecutive term of imprisonment for his conspiracy to traffick firearms offence, and to a consecutive five year term of imprisonment for his weapons trafficking/criminal organization offence. That is the total sentence of eight years imprisonment that is now imposed upon the accused.

I. The Parole Ineligibility Period

[51] The Crown argued that there ought to be an ancillary sentencing order, in connection with the sentence imposed upon the accused for the “weapons trafficking/criminal organization” offence, that the accused must serve one-half of that sentence before he is eligible for release on parole. Defence counsel argued that this proposed increase in the normally operative parole ineligibility period under s. 120 of the Corrections and Conditional Release Act, S.C. 1992, chap. 20, should not be made.

[52] According to s. 743.6(1.2) of the Criminal Code, where an offender is given a sentence of imprisonment of two years or more, upon conviction for a criminal organization offence under s. 467.12 of the Criminal Code, the court “shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence” or ten years imprisonment, whichever is less, “unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act. Further, according to s. 743.6(2) of the Criminal Code, “the paramount principles which are to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.”

[53] After considering the circumstances of the commission of the “weapons trafficking/criminal organization” offence and the character and circumstances of the offender, I am not satisfied that society’s denunciation of this offence and the objectives of specific and general deterrence would be adequately served by the usually operative period of parole ineligibility under the Corrections and Conditional Release Act. Accordingly, I am obliged to make the order requested by the Crown that the accused shall serve one-half of his sentence for this offence (i.e. 2½ years imprisonment) before he may be released on full parole. In making this order, I have been guided by the “paramount” sentencing principles of “denunciation and specific or general deterrence,” with the rehabilitation of the offender “being subordinate to these paramount principles.” See R. v. Beauchamp, at paras. 354-356.

J. Other Ancillary Sentencing Orders

[54] In addition, in my view the following ancillary sentencing orders are also appropriate in the circumstances of this case.

[55] First, pursuant to s. 491(1) of the Criminal Code, I order that the firearms and ammunition that have been seized and detained in this case be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.

[56] Second, pursuant to ss. 109(1)(b) and 109(3) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.

[57] Third, as the accused has been found guilty of committing a “primary designated offence,” pursuant to s. 487.051(2) of the Criminal Code, I make an order in Form 5.03, to have samples of bodily substances taken from the accused for purposes of forensic DNA analysis. I am not satisfied that the impact of this order on the “privacy and security of the person” of the accused “would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.” Accordingly, the DNA databank order will be made.

[58] Fourth, pursuant to s. 743.21(1) of the Criminal Code, I order that the accused be prohibited from any communication, directly or indirectly, with Siyadin Abdi, Abdulkadir Bihi, Ayanle Omar, Lamar Porter, Ibrahim Khiar, Ahmed Dirie, and Liban Siyad during the entirety of the custodial period of his sentence.

K. Conclusion

[59] In the result, after appropriately crediting the accused with having already served the equivalent of four years imprisonment, the accused is now sentenced to a total penitentiary term of imprisonment of eight years in duration – two years imprisonment for the firearms possession offence, one year imprisonment consecutive for the conspiracy to traffick firearms offence, and five years imprisonment consecutive for his weapons trafficking/criminal organization offence. With respect to this last offence, the accused shall serve one-half of that five year sentence (i.e. 2½ years imprisonment) before being eligible for release on parole. The accused shall also be subject to the various other ancillary sentencing orders that have been issued.

Kenneth L. Campbell J.

Released: August 5, 2016

COURT FILE NO.: CR-704/13 DATE: 20160805

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - AHMED FARAH

REASONS FOR SENTENCE K.L. Campbell J.

Released: August 5, 2016