COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Omar, 2015 ONCA 207

DATE: 20150326

DOCKET: C59408

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdiaziz Omar

Appellant

Ashley Audet, for the appellant

Kevin Rawluk, for the respondent

Heard: March 13, 2015

On appeal from the sentence imposed by Justice John McMahon on March 21, 2014.

ENDORSEMENT

[1] The appellant was convicted of possession of a prohibited weapon, being a loaded 357 Taurus revolver, contrary to s. 95 of the Criminal Code, possession of a firearm knowing its possession was unauthorized, contrary to Code s. 92, and breach of a weapons prohibition, contrary to Code s. 117.01. He pleaded guilty. The trial judge imposed a sentence of six years, less 43 months (1291 days) for time served, a DNA order and a firearms prohibition for life.

[2] In his sentencing reasons, the trial judge carefully canvassed the aggravating and mitigating factors. He noted that at the time of his arrest, the appellant was driving an SUV, with the gun concealed in a compartment under the cup holder in the centre console, and posed “an immediate danger to the public.”

[3] The trial judge noted that the appellant had previously been convicted of the same offence of possessing a firearm with ammunition, as well as possession of drugs for the purpose of trafficking, breaching a court order, and failing to comply with a recognizance, for which he received a global sentence of six and one-half months.

[4] While the appellant acknowledges that this court owes deference to a trial judge’s sentence, he argues that the sentencing judge “committed one grave error in principle by failing to give proper effect to the principles enunciated in R. v. Borde” [(2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225]. This is also known as the ‘jump principle’.

[5] At trial, counsel for the appellant proposed a global sentence in the range of four to five years with enhanced credit for the appellant’s pre-sentence custody. The Crown sought a global sentence in the range of seven to eight years with some enhanced credit for pre-sentence custody.

[6] Before this court, counsel emphasized the appellant’s potential for rehabilitation, his significant community support, and the need for the court to exercise restraint in light of the “jump principle” of sentencing. He also urged the court to take account of the inflationary effect of the minimum sentences.

[7] The sentencing judge stated that the Crown’s position at trial was “not an unreasonable position,” but he went on to say:

[H]owever, I think in the circumstances it may not adequately reflect the accused’s prospects for rehabilitation, particularly in light of the support of his family and friends in the community. I must also be cognizant of the ‘jump principle’. I must also consider this is Mr. Omar’s first penitentiary sentence and I must avoid imposing a crushing sentence, but a sentence still that will adequately address the paramount concerns of denunciation and deterrence.

The sentencing judge plainly considered the mitigating factors put before us.

[8] We see no error in principle in the sentencing approach taken by the trial judge. The sentence, which was at the midpoint between the submissions of trial counsel, is well within the range set by comparable cases, and is not unfit. The range of sentences is most significantly affected by growing judicial recognition of the reality of gun crime, as it should be.

[9] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“David Watt J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”