Court File and Parties
COURT FILE NO.: CR-18-5000526-0000 DATE: 2020-01-10 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Her Majesty the Queen AND: Abdirahman Mohiadin, Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Gus Kim, for the Crown Luka Rados, for the Defendant
HEARD at Toronto: October 15-18 and December 20, 2019
REASONS FOR DECISION-SENTENCING
[1] On October 18, 2019, I convicted the defendant Abdirahman Mohiadin on six counts under an indictment each of which related to his possession of a loaded handgun in an automobile. I heard sentencing submissions on December 20, 2019 and fixed January 6, 2020 to pronounce sentence upon Mr. Modhiadin. Mr. Mohiadin failed to appear on January 6, 2020 and counsel advised that he had been taken into custody over the weekend in Peel Region on unknown charges. The final pronouncement of sentence was deferred to January 10, 2020 in order to allow the time necessary to arrange to have Mr. Mohiadin brought before me.
Circumstances of the Offence
[2] Just after 11:30 p.m. on October 10, 2017, two Peel Regional police officers were investigating the occupant of a unit in an Etobicoke condominium building. There was a report of a possible attempted home invasion incident at the Mississauga home of a Toronto Police officer. The plate number of the automobile allegedly involved in that incident had been traced to an occupant of the Etobicoke condominium building. As the officers pulled into the circular driveway of the building, they noticed a car stopped in front of them containing two passengers. A third passenger had just gotten out of the rear door of the car and gone into the building. At first, the officers thought the car in view might also be the one involved in the incident they were investigating. A quick check of their notes from the dispatcher’s call disabused them of that notion. The colour and the plate registration of the vehicle in front of them were not a match for the vehicle they were interested in.
[3] The two officers prepared to exit their own (unmarked) vehicle to enter the building and pursue their investigation. However, they could see and smell clouds of marijuana smoke emanating from the open window of the car parked in front of them. They decided that this was simply too flagrant a flouting of the law to overlook even with marijuana possession due to be legalized shortly. It was taking place in full view of the building lobby where they – as police officers – were about to ask the security guard on duty to grant them access. They approached the car to investigate, one on each side.
[4] Mr. Mohiadin was in the front passenger seat with the window down. He had a thick marijuana ‘blunt’ in his hand. Around his neck was the strap of a satchel that hung down on his right hip. The zipper of the satchel was open. As the officer peered in through the open window of the automobile, he could clearly see the handle of a handgun inside the satchel. He warned his partner and they immediately directed both passenger and driver to put their hands on the dashboard and keep still. Both obeyed immediately and without resistance.
[5] Mr. Mohiadin was quickly removed from the automobile and arrested for possession of what later proved to be a loaded firearm. The firearm was a 9 mm Luger handgun with a chambered round and an attached, loaded magazine.
[6] I convicted Mr. Mohiadin of the following: Count 1: Possession of a loaded prohibited firearm contrary to s. 95(2)(a) of the Criminal Code; Count 2: Possession of a handgun while not holding a licence and registration certificate contrary to s. 91(3) of the Criminal Code; Count 3: Possession of a prohibited firearm knowing he was not the holder of a licence or registration certificate contrary to s. 92(3) of the Criminal Code; Count 5: Occupying a motor vehicle knowing that a prohibited firearm was located therein contrary to s. 94(2)(a) of the Criminal Code; Count 6: Carrying a firearm in a careless manner contrary to s. 86(3)(a) of the Criminal Code; and Count 7: Carrying prohibited ammunition to wit 9 mm luger caliber ammunition contrary to s. 86(3)(a) of the Criminal Code.
[7] At the sentencing hearing, the parties agreed that Count 3 of the indictment should be stayed under the rule in R. v. Kienapple, [1975] 1 SCR 729 and this was ordered at the conclusion of the sentencing submissions.
Circumstances of the offender
[8] Mr. Mohiadin is 21 years of age today. He was 19 years old when the offences were committed. He left high school before completing grade 11. At the time of his arrest, he had little to no work experience to speak of. He was released from custody under house-arrest conditions and has since acquired some work experience because his step-father (and surety) has taken the initiative to bring him along to work.
[9] It is fair to observe that Mr. Mohiadin has drifted somewhat since leaving school. His days appear to have been largely occupied in hanging out with friends and playing video games. He admitted to smoking marijuana on a very frequent and regular basis from about the age of 13, a habit which cannot have improved his chances of success at school. His parents separated when he was very young and he is estranged from his biological father whom he has not seen for a number of years. Fortunately for him, his step-father appears to have taken a strong interest in him. He has served as a surety and has helped him gain at least some work experience while living under house arrest release conditions.
[10] Mr. Mohiadin testified that his older half-brother was lost to gun violence about one year prior to the offences that bring him before me. That loss is something that marked Mr. Mohiadin very heavily and he attributes at least some of his poor life choices to having failed to come to terms with this loss. A few years beforehand, he lost a grandmother with whom he was also very close. That loss had an impact upon him as well.
[11] While Mr. Mohiadin described many of his friends as bad influences and living a “gang lifestyle”, there is no evidence that Mr. Mohiadin himself had any direct gang involvement. According to the Pre-Sentence Report, Mr. Mohiadin has been somewhat separated from these bad influences while living under his mother’s control at home. It remains an open question as to whether Mr. Mohiadin will renew his connections with these bad influences on his life once he regains the liberty to do so after serving his sentence.
[12] He spent most of his life in the Jamestown area of North Etobicoke where gangs and crime are, unfortunately, quite prevalent. He continues to live in that area with his mother, step-father and three siblings.
[13] To this point, the portrait painted of Mr. Mohiadin and his background is challenging. His incomplete education and lack of work experience will limit his options going forward in the best of circumstances and the risk of falling back into old habits and renewing unhealthy relationships will be ever-present. There is an obvious potential of developing a marijuana dependency that will not help him develop the strong work habits that he will need to establish himself independently.
[14] That portrait, fortunately, is by no means complete. Mr. Mohiadin has maintained a relationship with his current girlfriend for three years and fathered a child with her while under house-arrest release conditions living with his mother, step-father and three siblings. He and she both report that this new arrival has had a significant and beneficial impact upon him. While he has been under house-arrest release conditions, it appears that he has been distanced to some degree from the anti-social influences in his life as an unemployed out-of-school youth in the Jamestown neighborhood. He has a network of family and friends who know and appreciate the better side of Mr. Mohiadin’s character. They have seen him react to grief by lashing out with anti-social behavior and anger – something he himself has begun to recognize. They have come to know and appreciate his traits of kindness, loyalty and friendship. He appears to have a strong, pro-social network of family and friends to fall back on if he can persuade himself to do so.
[15] The support letters assembled by Mr. Mohiadin’s defence are eloquent and speak well of his potential but also the risks that he faces. Mr. Mohiadin’s own letter to me suggests an individual who has developed some insight into has failures but he is by no means out of the woods. He has acquired heavy family responsibilities and must begin to shoulder them.
Position of the Parties
[16] The Crown sought a custodial sentence in the range of 32 to 36 months less pre-sentence custody. The appropriate credit for this was agreed to be 36 days or 54 days when grossed up at 1.5 x 1 pursuant to s. 719(3.1) of the Criminal Code. In terms of ancillary orders, the Crown sought an order permitting a DNA sample to be taken pursuant to s. 487.051(3) of the Criminal Code plus a weapons prohibition order pursuant to s. 109(2) of the Criminal Code.
[17] The defence urged me to impose a sentence of no greater than 21 months less pre-sentence credit (54 days grossed up) and less Downes credit for more than two years spent under house-arrest release conditions.
Aggravating circumstances
[18] Mr. Mohiadin was apprehended carrying a loaded handgun with a magazine of ammunition in a public place and in a concealed manner. By his own admission, he had been carrying it about in public to a variety of venues since leaving his home earlier that day including a barbecue in the community, a restaurant, a residential area behind a busy shopping mall, in a car while driving with the windows down and smoking marijuana on a busy public highway and finally in a car parked outside a high-rise Etobicoke condominium building. Handguns are dangerous enough when possessed in a home or in some difficult-to-access location. When such firearms are carried around in public places, the prospect for harm – both intended and unintended – multiplies. A number of cases have found this to be an aggravating circumstance including R. v. Gobire, 2013 ONSC 3073, R. v. Ferrigon and R. v. Kabanga-Muanza, 2019 ONSC 1161.
[19] I find that the circumstance of carrying this loaded handgun in public and on public highways is an aggravating circumstance to be considered in passing sentence upon Mr. Mohiadin.
Mitigating circumstances
[20] Mr. Mohiadin is a young, first-time offender. He was 19 years of age at the time of the offence. There is no dispute that both of these circumstances are significant mitigating factors in sentencing.
[21] Mr. Mohiadin cannot claim the benefit of having entered a guilty plea. He cannot of course be faulted for insisting upon his right to a trial. This is a neutral factor.
[22] The defence urged me to consider Mr. Mohiadin’s time spent under house-arrest release conditions (just over two years) as a further mitigating circumstance.
[23] There was very limited direct evidence of the degree of hardship, if any, these release conditions had upon Mr. Mohiadin. I was urged to find that Mr. Mohiadin’s offence was in significant measure contributed to by the circumstance of having grown up in a violent neighborhood where crime and criminal influences are present. The support letters provided to me by the defence and the pre-sentence report all suggest to me that being isolated from those same anti-social influences while under house arrest has had a salutary impact upon his prospects for rehabilitation. House arrest and living with his parents have not prevented Mr. Mohiadin from being able to maintain a relationship with his girlfriend and to father a child with her. He has been able to accompany his step-father to work on some occasions and gain at least some work experience. His work experience prior to his arrest was minimal. These factors all suggest that the impact of house arrest upon Mr. Mohiadin and in his particular circumstances has been beneficial to some degree at least and the restrictions have not had a particularly severe impact upon him.
[24] I have no information regarding the circumstances of Mr. Mohiadin’s arrest this past weekend in Peel Region which obviously arose just prior to the delivery of my reasons. Clearly this is a troubling development. Mr. Mohiadin of course benefits from the assumption of innocence in relation to whatever charges he faces. However, the fact of having been arrested outside the home corroborates to some degree my prior finding that the claims of hardship arising from Mr. Mohiadin’s release conditions must be received with a grain of salt. The actual adverse impact upon his life of these conditions remains essentially untested but must be seen to be quite modest, a decision I reach without consideration of the most recent development.
[25] I find that the release conditions imposed upon Mr. Mohiadin are a mitigating factor to be taken into account in fixing his sentence in accordance with R. v. Downes. However, I decline to fix a specific “credit” expressed in weeks or months. While I do not in any way wish to be taken as minimizing the impact of house-arrest as a privation of liberty, I find that the imposition in this case was at or near the lighter end of the house-arrest spectrum of severity of impact. I don’t find it helpful to apply an artificially certain figure of “x” or “y” months. Rather I find that this can and should be taken into account as a mitigating factor along with other mitigating factors. In this particular case, I find that it is a factor of moderate to light weight.
[26] The defence also urged me to consider Mr. Mohiadin’s race and background in an economically-challenged Etobicoke neighborhood as mitigating circumstances. In this I was urged to follow the lead of such cases as R. v. Morris, 2018 ONSC 5186. In Morris, Nakatsuru J. considered a variety of factors related to the background of the offender in that case as well as broader issues of systemic racism when determining sentence for possession of a handgun carried in public.
[27] I am quite wary of treating factors such as racial background alone as a mitigating factor in and of itself and do not read Morris as doing so directly at least. Sentencing is not a group exercise. There is not one range for offenders of one race or socio-economic background and another range for those from another. As Nakatsuru J. acknowledged in Morris, “sentencing must always be an individual process” (Morris at para. 81).
[28] I must reach my decision in this case based upon the evidence that is applicable to this particular offender or that concerns matters about which I may reasonably take judicial notice. I am mindful of the general background of Mr. Mohiadin which I have described above. A variety of influences have played a role in that background. Clearly, his family circumstances including his estrangement from his father and loss of a brother to violent crime have played a prominent role. Other important factors include his abandonment of education, his limited work experience, the relative poverty of the neighborhood he grew up in and the presence in that neighborhood of significant crime (especially gun crime). All of these were operative when Mr. Mohiadin decided to acquire a gun, to acquire a satchel to carry it around in and ultimately to carry it on his person on the day he was apprehended. Other offenders may present as similarly disadvantaged even if through an entirely different combination of circumstances. None of these considerations absolves an offender for responsibility for his or her moral choices. However, all such circumstances are relevant in determining the degree of responsibility of the offender and ought properly to be considered when applying the proportionality principle as expressed by s. 718.1 of the Criminal Code.
Applicable sentencing principles
[29] The Criminal Code prescribes a number of principles and aims to be applied in determining sentence. The process is necessarily a highly individualized one. The unique circumstances of the offender and the context of the offences committed must be considered in light of all of these principles even where some of them are accorded greater weight than others in certain contexts. Among those principles, denunciation and deterrence have been repeatedly underlined by our appellate courts as being among the primary goals to be pursued when sentencing in firearms cases such as this. Other applicable principles include reparation for harm done to the community (s. 718(e)), the principles of parity and proportionality and the application of the least restrictive sanctions reasonably available in the circumstances. All of these shall be expanded upon somewhat below.
Analysis and discussion
[30] In Ferrigon, A.M. Molloy J. wrote (at para. 25):
A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.
[31] It is impossible to overstate the degree to which firearms have proliferated to the point of constituting a veritable plague upon this city in recent years. Reports of shootings have become virtually a daily occurrence in Toronto resulting in an alarming and rapidly increasing number of victims. While no neighborhood is exempt, some neighborhoods – including the North Etobicoke neighborhood that Mr. Mohiadin calls home – have been particularly impacted by this category of crime. Although Mr. Mohiadin graphically described the impact of guns and gun violence upon his community, he chose to add more fuel to the fire by bringing yet another gun into that community, to carry it about and to show it to impressionable youths thereby helping to aggravate and perpetuate a festering problem. It is precisely those communities that have the greatest need of protection from the kind of callous and potentially deadly behaviour exhibited by Mr. Mohiadin.
[32] I did not accept much of Mr. Mohiadin’s evidence regarding the circumstances of his search, arrest and detention and rejected his Charter application in consequence. The evidence he gave regarding his own personal exposure to gun violence in the neighborhood and the circumstances of his acquisition of the handgun was vague, at times self-serving and sometimes contradictory. I am willing to give it only limited weight.
[33] I do accept that guns and gun violence have been a very present feature of his life growing up in the Jamestown community. I am less able to credit his claim to have needed a gun for self-defence. Whatever general sense of threat Mr. Mohiadin may or may not have felt, it is clear that there was no actual, identifiable threat that he was responding to when he accepted the offer of a gun from his unnamed friend. After receiving the gun, he admitted to having gone out a day or two later for the express purpose of finding a satchel to carry the gun around in a concealed fashion. He said that he wanted something that would enable him to access the gun at a moment’s notice. He showed the gun to at least one youth in his circle of friends (who subsequently pleaded to be allowed to carry it for a while) and I think it no great leap to suggest that he felt some degree of status was obtained by carrying one and letting it be known to some at least that he was doing so.
[34] The simple fact of the matter is that Mr. Mohiadin made the deliberate, calculated decision to equip himself with a concealed handgun in public and then did so. There was nothing impetuous or “spur of the moment” about the thought process leading to the commission of this crime. He could have left the gun at home. He could have hidden it away and asked his friend to take it back were he unwilling to approach police. He made a different, deliberate and reprehensible choice.
[35] All of these factors argue for a very significant weight to be accorded to denunciation and deterrence.
[36] I must also consider the principle of proportionality. Mr. Mohiadin’s challenged background attenuates to some degree the degree of responsibility that can be attributed to him for the crimes he committed. Hardships endured are not destiny to be sure, but I cannot fail to take into account the number of strikes that have been against Mr. Mohiadin from a young age when I consider his degree of responsibility.
[37] In R. v. Nur, 2015 SCC 15, the Supreme Court struck down the three-year mandatory minimum sentence for possession of a loaded prohibited firearm contained in s. 95(2)(a) of the Criminal Code given the existence of certain reasonable hypothetical instances where such a sentence would be inconsistent with s. 12 of the Charter. In so ruling, the majority nevertheless noted that “it remains appropriate for judges to continue to impose weighty sentences in other circumstances such as those in the cases at bar”: Nur at para. 120. Mr. Nur, 19 years of age at the time of his offence, received a 40-month sentence while having no prior record, significant support from his school teachers, a law-abiding family and a guilty plea. Mr. Mohiadin’s background circumstances bear a remarkable degree of similarity to those of Mr. Nur including the very similar neighborhoods they grew up in and their similar age and socio-economic background. Mr. Nur received a greater sentence than the one asked for by the Crown in this case and Mr. Nur had the added benefit of a guilty plea.
[38] The parity principle urges the sentencing judge to impose similar sentences in similar circumstances. I consider Nur itself and the more recent post-Nur cases to be of relatively greater weight in pursuing this goal both because they are more recent and because they reflect the most recent jurisprudence of the Supreme Court of Canada in relation to this category of crime. The trend of the recent cases, including in cases with relatively youthful and first-time offenders is clearly to give priority to denunciation and deterrence. The resulting sentences handed down have been largely at or above the former three-year minimum threshold. The evolution of gun violence in this community – a circumstance of which I am entitled to take note (see R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089) – does not in any way suggest that a lessening emphasis on the priority given to those two sentencing aims is in order.
[39] The maximum sentence prescribed by law for the two most serious counts in the indictment – s. 94(1) and s. 95(1) of the Criminal Code - is ten years imprisonment. The Crown pointed me to recent similar cases that have imposed sentences considerably more severe than the range urged upon me by the Crown in this case relying in particular upon R. v. Mahamet-Zene, 2018 ONSC 1050 and R. v. Thavalularatnam, 2018 ONSC 2380 and the cases cited therein. In Thavakularatnam, a 19-year old first-time offender who pleaded guilty received a 42 month sentence. In Mahamet-Zene, a 24-year old first-time offender with good rehabilitation prospects who had been released under house-arrest conditions received 41 months. The Crown also referred to Kabanga-Muanza where Spies J. sentenced an offender with a prior record who was 22 years of age at the time of his offences to 3.5 years for possession of a loaded firearm.
[40] The defence urged me to consider cases where a lower sentence had been imposed. In R. v. James, 2017 ONSC 473, Mew J. imposed reformatory sentences upon two young men, but did so to reflect a “meaningful reduction” in sentence due to certain Charter breaches found in that case – a factor not present here. In R. v. Cadienhead, [2015] O.J. No. 3125, B.A. Allen J. handed down a reformatory sentence to a remorseful young man who had a particularly traumatic and difficult childhood and was seeking psychiatric assistance. In R. v. Reyes, 2018 ONCJ 185, Pringle J. handed down a reformatory sentence to a young man who had pleaded guilty at the earliest available opportunity, was remorseful and presented outstanding prospects for rehabilitation. Other cases were cited and may be distinguished on similar grounds.
[41] In the final analysis, I must make my decision having regard to the circumstances of Mr. Mohiadin and considering all of the factors applicable to his case. My conclusion is that it is both necessary and appropriate to give primary weight to denunciation and deterrence. The harm that gun crime has inflicted upon the broader community of Toronto and upon Mr. Mohiadin’s particular portion of that community is considerable. The mentality that views possession of a gun to be desirable or even admirable is one that is corrosive of the social fabric of the community and is one that must be combatted with an exemplary sentence to deter and dissuade. That view is reinforced by the aggravating factor of the loaded gun being carried in a public place in a manner signifying a willingness to use it. On the other hand, Mr. Mohiadin’s youth, his lack of prior entanglements with the law, the undoubtedly challenging circumstances of his background and the time spent on house-arrest bail terms all urge me to fashion a sentence that exhibits some degree of leniency but one that retains the primary focus on deterrence and denunciation in respect of a crime that is highly corrosive of the social fabric of this community.
[42] In all the circumstances, I find that a global sentence of 38 months is an appropriate sentence. While this is slightly longer than the sentence requested by the Crown, it is a sentence that is clearly well within and indeed below what most recent jurisprudence has found to be an appropriate range in similar circumstances while reflecting an appropriate and reasonable degree of recognition for the mitigating circumstances I have described. It is also a sentence that is less than one-third of the maximum sentence prescribed by Parliament. There was no opposition to the concurrent sentences of six months sought by the Crown for Counts 5, 6 and 7. While I have reservations about imposing such a light sentence in respect of Count 5 (unauthorized possession in a motor vehicle), I am prepared to accept the suggestion coming as it does as part of a global sentence sought in respect of a single incident that is at all events being served concurrently.
[43] As regards the two requested ancillary orders, I find that both are justified in this case.
[44] An order pursuant to s. 109(2) of the Criminal Code is mandatory in these circumstances and will issue. An order requiring the taking of a DNA sample pursuant to s. 487.051(3) is not mandatory as Mr. Mohiadin has only been convicted of a secondary designated offence. The Crown urged me to exercise my discretion to make the order in this case reasoning that DNA evidence may be found on handguns and such evidence can therefore be essential to the task of suppressing gun crime. I find that argument to be a compelling one given the circumstances in which Mr. Mohiadin acquired and carried this handgun and a DNA order shall accordingly issue.
Disposition
[45] For the foregoing reasons I pronounce the following sentence (inclusive of all credit for Downes): a. Count 1: 38 months; b. Count 2: 38 months concurrent to Count 1; c. Count 3: stayed pursuant to Kienapple; d. Count 5: 6 months concurrent to Count 1; e. Count 6: 6 months concurrent to Count 1; and f. Count 7: 6 months concurrent to Count 1.
[46] Pre-sentence custody credit against the foregoing sentence of 36 days (grossed up to 54 days at the rate of 1.5:1) shall be allowed.
[47] A weapons prohibition order pursuant to s. 109(2) shall issue and the Crown’s application for an order authorizing the taking of a DNA sample from Mr. Mohiadin pursuant to s. 487.051(3) is granted.
S.F. Dunphy J. Date: January 10, 2020
