COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2014 ONCA 103

DATE: 20140205

DOCKET: C56896

Weiler, Rosenberg and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Mohamed

Appellant

Ian R. Smith, for the appellant

John Pearson, for the respondent

Heard and released orally: February 3, 2014

On appeal from the conviction entered on June 4, 2012 and the sentence imposed on August 29, 2012 by Justice C. Kehoe of the Ontario Court of Justice.

ENDORSEMENT

[1] In our view, on the facts of this case, the offence under s. 96(2) was not made out. There was no evidence that the appellant knew the firearm was obtained by the commission of an offence. The fact that the appellant committed any number of offences including the s. 117.01 offence by being in possession of the firearm does not mean that it was “obtained” by the commission of an offence.

[2] Accordingly, the appeal from conviction on count number 7 (the s. 96(2) offence) is allowed and the conviction is quashed.

[3] As to sentence, the Crown concedes that the sentence must be reassessed in light of this court’s decisions in Nur and Smickle. The allowing of the appeal on the s. 96(2) offence does not change the appellant’s moral culpability especially in view of the appellant’s prior record.

[4] Accordingly, we reduce the sentence for the firearm offences, other than for count number 4, to three years’ imprisonment less one year for the pre-sentence custody. For the offence contrary to s. 117.01(3), being count number 4, there will be a sentence of eight months’ imprisonment consecutive.

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”

“R.A. Blair J.A.”