Court File and Parties
COURT FILE NO.: CR-23-50000375-0000 DATE: 20230905 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – AWALEH ISMAIL HASSAN
Counsel: Paul Zambonini, for the Crown Andrea Vanderheyden, for the Accused
HEARD: June 14 and July 26, 2023
HIMEL J.
Reasons for Sentence
[1] Awaleh Ismail Hassan entered a plea of guilty to the charge of possession of a loaded restricted firearm without being the holder of an authorization or licence permitting such possession contrary to s. 95(1) of the Criminal Code (hereinafter “the Code”). Mr. Hassan elected to be tried by a judge sitting alone. Mr. Hassan confirmed that he was entering the plea voluntarily, that he understood the plea was an admission of the essential elements of the offence, that he was aware he was giving up his right to have a trial, that he understood the nature and consequences of the plea, and that he was aware this court was not bound by any agreement made between counsel regarding the appropriate sentence. Mr. Hassan also confirmed that he was aware of the possible immigration consequences arising from a conviction.
[2] After finding Mr. Hassan guilty, I ordered a pre-sentence report which has now been received and reviewed by counsel. Counsel have made their submissions on sentence. The following are my reasons for sentence.
Factual Background
[3] The events of August 9, 2022 are captured on video surveillance. Mr. Hassan and his friend, Gidid Mohamed, were speaking to Yahya Diblawe at approximately 3:30 a.m. They were at the back of a building at 2 Rosemont Avenue located in the Jane and Weston Road area of Toronto. They appeared to be having a dispute. The video surveillance shows Mr. Hassan take out a gun and hold it by his side. The other man, Mr. Diblawe, is seen removing a firearm from his pocket. The dispute escalated. Mr. Diblawe pointed his gun at Mr. Hassan and Mr. Mohamed and fired at both of them. Mr. Hassan returned fire. Mr. Mohamed was shot and killed by Mr. Diblawe. Mr. Hassan was badly injured.
[4] Mr. Hassan brought a loaded handgun with him, was ready to use it, and did discharge his firearm. On the basis of these facts, I found Mr. Hassan guilty of possession of a loaded restricted firearm without being the holder of a licence or registration.
Evidence Led at the Sentencing Hearing
[5] Mr. Hassan has been detained at the Toronto South Detention Centre since his arrest on August 26, 2022. Crown counsel filed his criminal record. It contains one entry from 2014 for possession of a Schedule I substance for which he received a suspended sentence and probation for 18 months.
[6] Ms. Vanderheyden, on behalf of Mr. Hassan, filed the “Lockdown Summary” (hereinafter “The Summary”) from the Toronto South Detention Centre for the time of his incarceration. The Summary shows a total of 145 partial or full lockdowns arising mainly from staff shortages. Due to his injury and consequential medical issues, Mr. Hassan was placed in the infirmary from September 2022 until February 2023. During this time, he was detained in his cell where he had a shower and ate his meals. He was also in the medical unit where there were restrictions on the use of the telephone, access to showers, the ability to exercise, and to visits.
[7] Counsel also provided the court with the medical records from Sunnybrook Medical Centre describing the injuries to Mr. Hassan’s foot and ankle because of the gunshot wound. In a consultation obtained at the hospital, it was recommended that he receive aggressive rehabilitation and physiotherapy. Counsel submitted that according to the document, in order to avoid permanent disability, the physiotherapy had to be repetitive and undertaken early on. However, counsel advised the court that Mr. Hassan had sporadic physiotherapy at the jail and Mr. Hassan had to threaten to raise the issue which finally resulted in weekly physiotherapy. However, the physiotherapy started six months after the injury. Because of the damage to his Achilles tendon and foot, Mr. Hassan cannot put full weight on the foot and walks with a cane.
Positions of the Parties on Sentence
[8] Crown counsel submits that an appropriate sentence in this case is a period of imprisonment for three years and six months. Mr. Zambonini argues that gun crime must be denounced and deterred and that exemplary sentences must be given to achieve those objectives. As support for this proposition, he cites the case of R. v. Danvers, 199 C.C.C. (3d) 490 (C.A.). He also cites the cases of R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, and R. v. P.P.J., [2010] O.J. No. 5440 (ONSC), which stand for two propositions: the public must be protected, and the courts must send the strongest possible message by imposing the most severe of consequences for gun offences. He also relies on R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401. At para. 206, Justice Doherty stressed that sentences for s. 95 offences should be exemplary sentences that emphasize deterrence and denunciation. The same message was stated by Justice Akhtar in R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038. In R. v. Donison, 2022 ONSC 741, [2022] O.J. No. 711, Justice Schreck wrote that the usual range for firearm possession offences at the “true crime” end of the spectrum is imprisonment for three to five years.
[9] Mr. Zambonini submits that the sentence in this case should reflect the fact that Mr. Hassan brought a loaded handgun with him at 2:45 a.m. to the back of a residential building and discharged it. He submits this brings the possession of the gun into the “true crime” realm of possession as described by the Court of Appeal for Ontario in Nur. Thus, the sentence should be at the higher end of the range of sentence. However, given that Mr. Hassan has virtually no criminal record, has taken responsibility for his actions, and that credit should be given in accordance with R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255, and R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757, he asks the court to impose the sentence of three years and six months in custody. He argues that there is no evidence on the record that he held the gun for protection. Regardless, Mr. Hassan entered an alley in the early morning hours and had a loaded handgun at his side while he had a conversation with another person.
[10] Crown counsel acknowledges that Mr. Hassan has been in custody since his arrest on August 26, 2022 and should be credited in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 on a 1.5:1 basis. He submits that while the lockdown records subpoenaed from the Toronto South Detention Centre show 145 lockdowns, the vast majority are partial lockdowns with only eight being full lockdowns and many were caused by staff shortages. As for the medical records, the Crown argues they show that Mr. Hassan was taken to Sunnybrook Medical Centre and then treated at the jail. He refused physiotherapy on January 27, 2023. The Crown takes the position that the sentence of three years and six months less credit already takes into account the other circumstances of the lockdowns while in custody, that Mr. Hassan was injured, and the cultural considerations mentioned in the case of R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641.
[11] Crown counsel also asks the court to impose two ancillary orders. First, a s. 109 weapon prohibition order for life. Second, a DNA order given s.95 of the Code is a secondary designated offence.
[12] Defence counsel, Ms. Vanderheyden, submits that Mr. Hassan should receive a suspended sentence and probation of two years with conditions that he not possess any firearms and that he take counselling as directed and sign any necessary releases. She does not oppose an order that a sample of his DNA be taken. Counsel submits that Mr. Hassan should receive credit for the time served in custody of approximately 12 months. She takes the position that Mr. Hassan has been in the Toronto South Detention Centre for one year. Accordingly, she submits Mr. Hassan should receive extra credit for the number of lockdown days and the conditions at the jail. In other words, with credit given at 2:1, the sentence would equate to time served.
[13] Ms. Vanderheyden disagrees with the Crown’s characterization of the offence as a “true crime.” She submits this would mean that the possession of the gun is a tool of the trade and associated with another crime. Here, Mr. Hassan brought the firearm with him for protection, removed it, and held it by his side. He did not point it or threaten anyone with it. Rather, he assessed a dangerous situation and “took steps to make sure he didn’t end up dead.” The pre-sentence report states that Mr. Hassan grew up with violence. It is likely the gun was used for protection and the Crown is not able to prove that it was possessed in furtherance of criminal activity. In R. v. Beharry, 2022 ONSC 4370, [2022] O.J. No. 3409, at paras. 27 and 28, Justice Schreck highlighted the personal circumstances of the accused who grew up in poverty, with no father, and was disadvantaged. While not an excuse, Mr. Beharry existed within a system of anti-Black racism. This placed the offence in context when sentencing the accused.
[14] In R. v. Johnson, 2022 ONSC 2688, [2022] O.J. No. 2114, following the execution of a search warrant, police found a gram of fentanyl in the accused’s car and a gun in his residence. The accused pleaded guilty and had family support. He received enhanced credit because of pre-sentence incarceration at the Toronto South Detention Centre. Mr. Johnson had a criminal record. The Crown sought a sentence of four years and the defence sought a sentence of two years and six months imprisonment. Justice Goldstein cited R. v. Filian Jimenez, 2014 ONCA 601, [2014] O.J. No. 3852, where the offender pleaded guilty to possession of a loaded, prohibited handgun which he had for “protection” and the Court of Appeal for Ontario upheld an 18-month sentence. In Johnson, Goldstein J. sentenced the offender as follows: one day imprisonment with pre-sentence custody noted as the equivalent of three years for possession of a firearm contrary to s. 95(1) of the Code and one day imprisonment with pre-sentence custody noted as the equivalent of 60 days on the count of possession of fentanyl contrary to s 4(1) of the Controlled Drugs and Substances Act, to be served concurrent to the s. 95(1) count.
[15] In R. v. Marfo, 2020 ONSC 5663, [2020] O.J. No. 4158, the accused possessed two overcapacity magazines, cocaine, and paraphernalia. Justice Ducharme sentenced him to 24 months in light of the guilty plea, that he had a career path, and received the support of his family. He had a history of being regularly carded by the police. As a result, he did not trust police. His brother had been shot and Mr. Marfo had a firearm because of the violence in the community. Justice Ducharme considered the Ontario Human Rights Commission Report. More specifically, he considered the statistics regarding anti-Black racism in Toronto at para. 26. He noted that a custodial sentence is more onerous for a Black man and referenced the study which said a Black man would be treated more harshly in custody.
[16] In R. v. Myers, 2023 ONSC 1896, [2023] O.J. No. 1324, the circumstances involved an accused who had a verbal argument with an ex-girlfriend. When the argument escalated, he retrieved a gun and while holding it, the gun went off and a bullet struck the ground. This was in the presence of a child. He had a related criminal record. He received a three-year sentence consisting of two years for discharging a firearm and one year consecutive for possession of a firearm. This was in a domestic context and the accused had a criminal record.
[17] Counsel submits that the Crown’s jurisprudence predates Morris and does not take into account the cultural background of the accused. She takes the position that in light of the circumstances of Mr. Hassan and the time already spent in custody, he should receive a suspended sentence with probation for two years with credit for time served.
[18] Counsel referenced the pre-sentence report but takes issue with the opinion of the author. At p. 7, the author stated, “given the serious nature of the offence.” She asks the court to disregard the comments that Mr. Hassan failed to understand the seriousness of the offence.
[19] Ms. Vanderheyden points out that at the time of the sentencing hearing, Mr. Hassan had been in custody for approximately 12 months. She submits the pre-sentence custody was served during the COVID-19 pandemic – a difficult time when privileges were restricted. She referenced the number of lockdowns and the harsh conditions arising from the COVID-19 pandemic. Counsel asks that the court award credit for time served at the rate of 2:1 to account for the time in custody during the lockdowns, the quality of life in the infirmary, and his permanent disability that was not properly treated. For the time spent in custody, Ms. Vanderheyden requests that the court credit Mr. Hassan with a further 5.5 months to take into account the conditions during the time spent in the infirmary and the lack of medical care.
[20] In her submissions, counsel for Mr. Hassan acknowledges that gun violence is a plague in Toronto and that it is more prominent in low income and under-resourced communities. She submits that as referenced in the pre-sentence report, Mr. Hassan experienced repeated harassment by police. He was stopped by them and carded well over 50 times. He grew up in an area where police were surprised that he did not have a criminal record and was harassed and treated as a criminal, nonetheless. Counsel advises that Mr. Hassan is ashamed by his actions. The fact that he saw his friend die has affected him greatly. He has nightmares and is scarred emotionally. He likely has Post-traumatic stress disorder. For these reasons, Ms. Vanderheyden submits that a condition requiring Mr. Hassan to attend psychological counselling would be appropriate.
[21] Finally, counsel argues that Mr. Hassan entered an early plea and accepted responsibility for his actions. In addition, defence counsel points to R v. Stewart, 2022 ONSC 6997, [2022] O.J. No. 5646. In this case, the accused was 19 years old and had no criminal record. After trial, he was convicted of possession of a prohibited firearm the facts of which were that he ran away from the police and threw the gun away. The court took into account his cultural background, young age, lack of a criminal record, and family background. The court also noted that he had been on bail without incident and ordered that the upper reformatory sentence should be served as a conditional sentence. Justice Copeland of the Superior Court (as she then was) cited Morris, where the Court of Appeal for Ontario wrote that anti-Black racism is relevant to sentencing and that where the appropriate sentencing range includes sentences at or below two years, a sentencing judge must give careful consideration to the imposition of a conditional sentence. Like Mr. Hassan, the accused grew up in a community of violence and in a family with financial burdens.
The Law
[22] The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R v. Danvers, 201 O.A.C. 138, at para. 78. The prevalence of gun violence in our community must be stopped through exemplary sentences. Possession of an illegal handgun is a serious offence warranting a severe penalty: see Nur at paras. 108, 109, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. In Nur, at para. 206, Justice Doherty wrote, “Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”
[23] In R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, the court wrote:
This court has clearly indicated that convictions under s. 95 of the Criminal Code demand denunciatory sentences: see Smickle, at para. 30; and R. v. Nur, 2013 ONCA 677, at para. 206. Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.
[24] While the principles of deterrence and denunciation are primary objectives on sentencing for firearm offences, decisions of our courts also recognize that sentencing is a highly individualized process driven by the unique circumstances of the offence and the circumstances of the offender.
The issue of credit for harsh pre-sentence conditions according to R. v. Duncan and R. v. Marshall
[25] In Duncan, the Court of Appeal for Ontario recognized that harsh pre-sentence conditions can provide mitigation and enhanced credit in fashioning a suitable sentence. In Marshall, at paras. 52 and 53, the Court of Appeal for Ontario clarified that Duncan credit is available for “particularly punitive pretrial incarceration conditions” as a mitigating factor to be taken into account when imposing sentence. However, the court cautioned that, while not “necessarily inappropriate”, quantifying Duncan credit may be unwise as it allows for Duncan credit, in and of itself, to overwhelm an appropriate sentence. Rather, such conditions have been considered as part of the mitigating factors in the sentencing process. However, there are cases where quantifying the credit has been done: see R v Kungolo, 2022 ONSC 3891 at para. 82.
[26] As for jurisprudence on the impact of harsh conditions of pre-sentence custody, there have been several decisions from the Superior Court of Justice and the Ontario Court of Justice expressing concern about the number of lockdown days at the Toronto South Detention Centre and the conditions of incarceration: see R. v. Persad, 2020 ONSC 188, [2020] O.J. No. 95; R. v. Spicher, 2020 ONCJ 340, [2020] O.J. No. 3251, at paras. 59-68; R. v. Jama et al., 2021 ONSC 4871, [2021] O.J. No. 3784, at paras. 51, 53, 55. For more recent cases on the effects of harsh conditions in pre-sentence custody see R. v. Starostin, 2023 ONSC 3677, at paras. 52 and 53; R. v. Kongolo, 2022 ONSC 3891, at paras. 82 and 83; R. v. Pathmanathan, 2023 ONCJ 142; R. v. Bahamonde, 2022 ONSC 916, at para. 80; R. v. Doyle, 2022 ONSC 2489, at paras. 53 – 63; R v. Haj, 2022 ONSC 1457, at paras. 8 and 9; and R. v. Owusu-Boamah, 2023 ONSC 496, at para. 42.
[27] In R. v. Brown, 2020 ONCA 196, [2020] O.J. No. 116, at paras 11 and 12, the Court of Appeal for Ontario noted that conditions at the Toronto South Detention Centre have not improved since the pandemic and found that credit of 1.5:1 for lockdown days was not demonstrably unfit.
[28] In other cases, rather than quantifying the credit, courts have taken the circumstances of incarceration into account when fashioning a sentence.
[29] In R. v. Bernard, 2021 ONSC 5817, [2021] O.J. No. 4528, Justice Forestell reduced the sentence from seven years to five years where the accused had served a total of 536 days during the pandemic, 456 of which were lockdown days. At para. 26, she commented as follows:
Credit for harsh conditions can serve two functions: Taking into account the impact of the conditions on the offender and giving credit for them serves to ensure that the sentence is proportional and individualized. In addition, credit for harsh conditions can serve a communicative function. It conveys the message to state actors that inhumane conditions are unacceptable. (See: R. v. Persad, 2020 ONSC 188.)
[30] Similarly, in the case of R. v. Baldwin, 2021 ONSC 7025, [2021] O.J. No. 6078, at paras. 15 and 74, Justice Maxwell held that an accused who was subject to 233 lockdown days of 512 days served during the pandemic should be credited with one year of Duncan credit. In R. v. Lee 2021 ONSC 6704, [2021] O.J. No. 5229, Justice Kelly awarded 1.5 years of credit due to the pandemic and staff shortages at the Toronto South Detention Centre where the accused was in custody both before and during the pandemic. Further, there had been 431 lockdown days and difficult pandemic conditions. In R. v. Lee, 2021 ONSC 7672, [2021] O.J. No. 6620, Justice Kelly credited between 1 and 1.5 years of Duncan credit for 346 lockdown days during the period of the accused’s pre-sentence custody.
Decision
[31] I turn to some of the general principles of sentencing set out in s. 718 of the Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. These objectives include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
[32] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or decrease the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate. Finally, all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.
[33] I now turn to the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and will begin with a consideration of Mr. Hassan’s background.
[34] Mr. Hassan was born in Somalia on January 2, 1985 and is 38 years old. He is the youngest child and had nine siblings. He immigrated to Canada as a refugee in 1997 with his mother and five siblings. The hope was that the additional four siblings would immigrate with their father one day. However, they were never able to come to Canada and faced many difficulties in Somalia. Mr. Hassan now has his Permanent Resident status. He does not have contact with one of his brothers and no one in the family knows his whereabouts. Mr. Hassan’s father passed away in 2013 and two of his brothers have also passed away. Another brother died in Canada in a car accident. Mr. Hassan’s nephew passed away suddenly in August 2022.
[35] Mr. Hassan’s mother works as a cook and has supported her children in Canada over the years. Mr. Hassan is close to two of his sisters as well as his mother. He took on a role as the “man of the house”. Mr. Hassan grew up with his family living on Dixon Road in central Etobicoke. This area was described by Mr. Hassan’s sister as a place where several members of the Somalian community lived. Mr. Hassan says he was targeted by police but stayed away from violence and focused on school and work. He did fairly well in school but began work early on to support his family. He had continued to live with his mother and sisters within that community.
[36] Since 2006, Mr. Hassan has been in a common law relationship with Madhia Yahya. They have been considered married religiously. They have four children who are 15, 14, 10 and 3 years of age. Ms. Yahya is employed as a housekeeper at an oil camp in Alberta and works 21 days of the month. She then returns home for the days off. As a result, it was decided Mr. Hassan would live with his mother and sisters while Ms. Yahya and her children would live with her mother in Scarborough, Ontario. Mr. Hassan shared responsibilities with the children before he was incarcerated. He was also involved with his sisters, nieces, and nephews. He was a mentor to them and others in the family.
[37] Mr. Hassan’s family was present in the courtroom during the sentencing hearing in demonstration of their commitment to him. In addition, they filed letters outlining that Mr. Hassan provided financial, emotional, and religious support to them.
[38] Mr. Hassan completed his secondary school education and is bilingual. However, he did not pursue his education further. He worked at a number of factories and then in the office of a transport company. For five years prior to his incarceration, he was working as a customer service representative in the warranty department at American Standard. He did not tell his employer about his situation and was terminated due to his absence while incarcerated. This was confirmed with documents received from Mr. Hassan’s mother. Mr. Hassan hopes to seek employment upon his release and is considering taking a trade course.
[39] Mr. Hassan says that he does not have a problem with substance abuse. He was described by the probation officer who interviewed him at the Toronto South Detention Centre as “cooperative and respectful.”
[40] I now turn to the circumstances of the offence. Mr. Hassan was found guilty of one count of possession of a loaded restricted firearm. As noted above, the events occurred at approximately 3:30 a.m. behind a building in Toronto. With a gun in his pocket, he went with his friend to meet this other person. It is not known what the purpose and surrounding circumstances of the meeting were, but the results were horrific. Mr. Hassan’s friend was killed, and Mr. Hassan badly injured.
[41] In summary, I consider the sentencing principles and the circumstances of the offender and the offence. I consider that deterrence and denunciation are the overriding principles of sentencing in cases of this kind.
[42] With respect to mitigating factors, Mr. Hassan has entered a plea of guilty. This is an expression of remorse. He has spent a significant amount of time in custody and has been subjected to very harsh conditions arising from lockdowns due to staff shortages as well as the effects of the COVID-19 pandemic. He has had to contend with the serious injury to his foot and the consequences of not receiving physiotherapy treatment in a timely manner.
[43] There are aggravating factors in this case. He was involved in extremely dangerous conduct which placed him and the public in a very dangerous situation. The gravity of the offence is a critical factor. His friend died as a consequence of these events.
[44] In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offence and the offender. I recognize that denunciation and deterrence are paramount sentencing principles for this type of offence which generally calls for a penitentiary sentence. However, I am also to consider Mr. Hassan’s difficult background, that he has no relevant criminal record, that he has supported his children and provided moral and other support to his family, that he had been working steadily, and that he has entered a guilty plea and demonstrated remorse. I also must take into account his rehabilitative potential. Accordingly, I deem a sentence of two years less one day to be an appropriate sentence. I also consider his cultural background and the impact of anti-Black racism in accordance with Morris in reaching this sentence.
[45] Harsh pre-sentence incarceration conditions can provide mitigation and enhanced credit in appropriate cases. In deciding whether enhanced credit is appropriate, I consider the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: see Duncan, at para. 6. In Marshall, the Court of Appeal for Ontario cautioned against quantifying the amount of credit for such harsh conditions but rather to consider them in mitigation of the overall sentence.
[46] While incarcerated, Mr. Hassan experienced extensive lockdowns owing to staff shortages and faced harsh conditions because of the COVID-19 pandemic. Evidence was also submitted outlining his injuries and medical conditions since these events. Accordingly, it is warranted that credit be quantified to demonstrate the court’s condemnation of these conditions.
[47] Mr. Hassan is credited in accordance with Summers at 1.5:1 and is given additional credit because of the evidence before me regarding the number of lockdown days and the harsh conditions arising from the COVID-19 pandemic. As a result, I credit Mr. Hassan with 0.5:1 for each of the days spent in custody. The amount of credit recognizes the presence of COVID-19 while in custody, the lack of programming available to him, and the physical and other challenges he has experienced while in custody.
[48] In summary, the appropriate sentence is one of two years less one day. The Summers pre-sentence custody calculation is as follows: from August 26, 2022 to September 5, 2023 (the latter date being the sentencing date), Mr. Hassan has spent 376 days in pre-sentence custody or 12 months and 11 days. After Summers credit is granted at 1.5:1, Mr. Hassan will have spent 564 days in custody or 18 months and 2 weeks. The Duncan credit calculation is as follows: applying a 0.5:1 credit ratio, Mr. Hassan will be credited with 188 days. The total Summers/Duncan credit totals 752 days in pre-sentence custody or 24 months and 22 days. After considering the Summers and Duncan credit, Mr. Hassan is sentenced to one additional day of imprisonment plus probation.
[49] Following the one day term of imprisonment, he will be placed on probation for two years. In addition to the statutory conditions, Mr. Hassan,
a. shall report to his probation officer within seven days of his release from custody and as often as required,
b. shall reside at an address approved of by his probation officer,
c. shall maintain employment and/or attend at an educational program as approved of by his probation officer,
d. shall attend and participate in counselling as directed by his probation officer and sign any necessary releases, and
e. shall not possess any weapon as defined by the Criminal Code.
[50] Pursuant to s. 109(2) of the Code, Mr. Hassan is prohibited from possessing the items described in s. 109(2) (a) for a period of 10 years after his release from imprisonment and prohibited from possessing the items described in s. 109(2) (b), including any prohibited or restricted firearms, for life. Section 95(1) of the Code is a secondary designated offence. Mr. Hassan is ordered to provide a sample of his DNA pursuant to s. 487.04 of the Code.
Himel J. Released: September 5, 2023
