Court Information

Ontario Court of Justice

Date: April 11, 2017

Court File No.: 14-R2041

Parties

Between:

Her Majesty the Queen

— AND —

Hussein Mohammad

Judicial Officer and Counsel

Before: Justice Julie Bourgeois

Heard on: January 27, 2017 and March 2, 2017

Ruling on Constitutional Challenge - s. 244.2 released on: April 11, 2017

Counsel:

• Mr. P. Napier — counsel for the Crown
• Mr. R. Addelman — counsel for the accused Hussein Mohammad

BOURGEOIS J.:

INTRODUCTION

[1] The accused brought a constitutional challenge, pursuant to s. 12 of the Canadian Charter of Rights and Freedoms ("Charter"), protecting individuals against cruel and unusual punishment. The application is against one of the counts he was convicted of, more specifically, count 23, pursuant to s. 244.2(3)(a)(i) of the Criminal Code, having been found guilty of being a party to the offence of intentionally discharging a handgun, while being reckless as to the life or safety of another person.

FACTUAL BACKGROUND

[2] The accused was convicted of numerous gun use and possession related counts, breaches of firearm and ammunition prohibition and possession of drugs after trial. Reasons for Judgement were released on September 27, 2016. In summary, however, the accused was the driver of the car from which his co-accused at that time, Fawaz Abdullah, fired a shot at another person's car. Both vehicles were travelling on Bank Street, on July 23, 2014, just before 8pm on that summer evening. The victim's girlfriend was in the passenger seat and the accused also had another passenger in the back seat of the car he was driving. After this drive-by shooting, the accused quickly drove away through a residential area and parked the car in the parking lot of an apartment building. A friend of his picked him and his co-accused up from that location. Upon his arrest later that evening, the keys to the car he was driving during the drive-by shooting were located at his feet, along with 26.1 grams of cocaine and approximately 4.1 grams of marijuana. Searches of the car he was driving during the drive-by shooting revealed two handguns with ammunition located in a hidden compartment behind the dashboard on the driver's side. The accused was prohibited from possession of any firearm or ammunition, pursuant to s. 109 during this period of time.

POSITION OF THE PARTIES

[3] Counsel for both Crown and Defence provided a factum and supporting materials. Their respective position is well displayed in the documentation provided and I thank them both for their work and submissions.

[4] In summary, the applicant takes the position that the mandatory minimum sentence of 5 years for a first offence constitutes cruel and unusual punishment, not only for the accused in this specific case but also in hypothetical situations. His main argument however remains that of the principle of parity with his co-accused at the time. On the first day of trial, Abdullah pled guilty before Justice Paciocco to some of the offences he was charged with but not to the s. 244.2(3) count and received a sentence of the equivalent of three years and 131 days. Therefore, based on R. v. Lloyd, this court can and ought to conclude that the minimum sentence of 5 years jail for this accused, after finding that the co-accused is the one who actually discharged the firearm while the accused was the driver, is grossly disproportionate for him and declare the minimum mandatory sentence offending his s. 12 Charter protection.

[5] The applicant accepts that a party to an offence is generally considered equally culpable but argues that in some situations the party to the offence does not have the same degree of intent and responsibility. It is argued that this case is one of those situations where he became a party through knowledge and compliance but no offence would have been committed through his actions alone (see para. 26 of the applicant's factum).

[6] The Crown, on the other hand, argues that an appropriate sentence for this offender in this case is at least one of five years jail or more and therefore, s. 12 of the Charter is not engaged and no analysis is necessary pursuant to that section. It is the Crown's position that the principle of parity does not apply to the accused and Abdullah as they were neither found guilty nor sentenced in relation to the same offences.

[7] It is the Crown's position that this court is bound by Superior Court of Justice, Justice McWatt's decision in R. v. Abdullahi, 2014 ONSC 272. Having heard and dismissed such application in relation to the same section of the Criminal Code, the Superior Court decision is binding on this court. Ultimately, it is argued that should this court proceed to the analysis pursuant to s. 12 of the Charter, s. 244.2(3)(a)(i) does not offend s. 12 of the Charter either in this case or in the case of any reasonable hypothetical situation.

ANALYSIS

[8] S. 244.2(1)(b) reads:

Every person commits an offence

(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.

[9] S. 244.2(3)(a)(i) reads:

Every person who commits an offence under subsection (1) is guilty of an indictable offence and

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of

(i) five years, in the case of a first offence

[10] I accept the Crown's position that I am bound by the decision in R. v. Abdullahi, idem. As reproduced in para. 17 of the Crown's factum, R. v. Northern Electric Co. Ltd at p. 463, the principle of stare decisis requires this court to follow a decision of our Superior Court on the same issue.

[11] I also find the analysis of Justice Wadden in R. v. Abdi Rashid Mohamed, released on August 11, 2016, to be convincing in the approach to the analysis in this case.

[12] In Abdullahi, supra, or in Mohamed, idem, however, the principle of parity was not raised. However, I reject the applicant's argument that parity applies in this case. Indeed, Abdullah decided to enter pleas to various counts in relation to possession of firearms and breaching his firearm prohibition order, but not pursuant to s. 244.2 or any use of firearm offences. His decision to plead guilty came on the first day of trial, after this court issued a material witness warrant for the arrest of the victim, a material witness on the issue of the use of a handgun and the identity of the specific person shooting at his car. The accused, on the other hand, elected to proceed to trial and was found guilty of various counts, including pursuant to s. 244.2 of the Criminal Code. Both accused were free to conduct their case as they wished, as they saw fit and as they assessed what was best for each of them.

[13] As stated by our Court of Appeal in R. v. Roks, 2011 ONCA 618, at para. 15:

The principle of parity expressed in s. 718.2(b) of the Criminal Code requires us to take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[14] And at para. 16:

(…) Similar offenders should receive similar sentences for similar offences committed in similar circumstances. When the similarities begin to fall away, however, so does the principle. Offenders may be at different ages and stages, having different antecedents and realistic prospects for rehabilitation, and greater or lesser involvement in or responsibility for an offence. Some plead guilty and co-operate with authorities. A discount may follow in their cases. Others plead not guilty and have a trial. They don't get the discount.

[15] Indeed a guilty plea to different offences and a finding of facts after trial will inevitably lead to different results. The accused assumed the risk of a different result when he elected to move forward with his trial, obviously in the hopes of obtaining an acquittal but at the same time assuming the risk of a conviction to any of the counts he was facing, including s. 244.2 of the Criminal Code.

[16] For the principle of parity to apply as sought by the accused, we would have to compare sentencing of the co-accused to the same offences, including s. 244.2 in this case. The accused cannot seek the application of the principle of parity to Abdullah who was no longer his co-accused at the time of his finding of guilt because of his resolution by guilty pleas to other offences prior to the presentation of the evidence and therefore prior to the findings of facts after trial. As indicated earlier, they were not found guilty of similar offences. Abdullah pled guilty to other offences but not to s. 244.2 while the accused was found guilty of that count, amongst others. This argument, although not identical, reminds me of an example of a situation where such argument would expressly not succeed in relation to a conviction and that is pursuant to s. 23.1 of the Criminal Code, where an accessory after the fact may be convicted even where the principal is acquitted.

[17] In any event, Abdullah received a sentence, on a guilty plea, of just over 40 months, in line with the range proposed in R. v. Nur, 2015 SCC 15, for possession related offences. It seems the accused ought to receive a sentence proportionately higher for firearm use related offences.

THE OFFENCE AND THE OFFENDER

[18] At the end of the presentation of the evidence, this court was convinced beyond a reasonable doubt that the Crown had proved each of the essential elements of the counts the accused was found guilty of. Part of the factual basis accepted by this court was in fact that it was Abdullah who fired the shot, while the accused was the driver. Paragraphs 46 and 47 of my Reasons for Judgement address this specifically. But paragraphs 48 to 56 describe the accused's possession of the firearms and paragraphs 57 to 65 also describe the accused's involvement as a party to the offences in relation to the use of the firearm.

[19] This court found that even though there is no evidence that the accused knew of the presence of handguns inside the car he was driving until moments prior to the shooting, he certainly acquired that knowledge and ultimately accepted the control and continued possession of the handguns during and after the shooting, until his arrest. But of importance in this case is also the fact that without the accused's participation in this offence, pursuant to s. 244.2 of the Criminal Code, Abdullah would not have been in a position to fire that handgun at the victim's car. The accused was instrumental to the commission of the offence. He had to catch up to the victim's car, maintain his speed and distance long enough for Abdullah to retrieve the handgun, lower his window, take his hand or arm out and fire that shot at the rear passenger's door; then he quickly accelerated away from the victim's car, cutting in front of him and the lines of traffic, drive into the residential area, stop the car briefly to hide the handgun in the secret compartment, continue his driving through the residential area with the handguns and ammunition in the car, park at an apartment building and get a ride from one of his friends and drop off Abdullah and the unknown black male with them at the time of the shooting. His participation as a party to the offence does not minimize his responsibility or his blameworthiness to the point of benefitting from a great reduction in his sentence, if any.

[20] Chief Justice McLachlin in R. v. Ferguson, 2008 SCC 6 at para. 14 stated:

The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith, [1987] 1 S.C.R. 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable": R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84 at para. 4 citing Smith, at p. 1072, and Morrisey, at para. 26. (…)

[21] Chief Justice McLachlin reiterated this high threshold applicable under s. 12 analysis in R. v. Nur, supra, at para. 39.

[22] In this context, the Supreme Court of Canada in R. v. Lloyd, 2016 SCC 13, provided an analytical scheme for Charter applications such as this one, at paras. 15 to 18. If I did not agree with the Crown's position that I was bound by Abdullahi, supra, I would follow this analytical guide as did Justice Wadden in Mohamed, supra. I still find this approach useful to this exercise and in answering the question: What constitutes a proportionate sentence for this offence?

[23] The sentencing principles are enunciated under s. 718 (purpose); s. 718.1 (fundamental purpose) and s. 718.2 (other sentencing principles). Justice McWatt in Abdullahi, supra, provided a comprehensive summary of the general principles applicable and a review of the case law in this context at paras 28 to 33.

[24] I do not propose to reproduce any of those passages here but to conclude on this section in relation to the applicable sentencing principles in the context of the gravity of the offence analysis, Justice Gonthier in R. v. Morrisey, 2000 SCC 39, at para. 54, albeit in relation to a different offence (s. 220 – criminal negligence causing death by the discharging of a firearm) stated:

The four-year minimum sentence equally sends a message to people who are in a position to harm people to take care when handling their weapon. Hunting accidents occur all too easily. When individuals with weapons are hunting in such a degree of proximity, extra steps are necessary to ensure that other hunters are not harmed. Therefore, when hunting, before hunters pull the trigger on their guns, they must form a reasonable belief that the object they are shooting at is not another human. Extra vigilance is necessary with guns, and while society would expect people to take precautions on their own, unfortunately people do not always do so. Consequently, Parliament has sent an extra message to such people: failure to be careful will attract severe criminal penalties. The sentence represents society's denunciation, having regard to the gravity of the crime; it provides retributive justice to the family of the victim and the community in general; and it serves a general deterrent function to prevent others from acting so recklessly in the future. (My emphasis)

[25] All agree this case also qualifies as a very serious offence. The circumstances of the offender, being under the prohibition of possession of firearms pursuant to s. 109 of the Criminal Code, following a conviction under s. 94(2) of the Criminal Code (precisely for being in a motor vehicle with the unauthorized possession of a firearm) and the circumstances of the offence, driving on Bank Street around 8pm, while other innocent motorists are using the road, driving in such a way to allow his co-accused to discharge the handgun onto another vehicle with two passengers in it and driving in a residential area with two loaded handguns in the car undoubtedly fits the description of a very serious offence.

[26] As reproduced in the Crown's factum, at para. 43, Chief Justice McLaughlin also emphasised the gravity of this type of offence in Nur, supra, at para. 1 and 6, stating that "gun-related crime poses grave danger to Canadians" and "firearm-related offences are serious crimes."

[27] It is also in this context that the Minister of Justice presented Bill C-14 in 2009, creating a new offence, targeting those drive-by shootings.

[28] It is also in this context that we must consider the consequences of the offender's actions in this analysis. As I stated earlier, the accused's actions were instrumental to the completion of the offence of discharging a handgun onto the victim's car. The fact that he was not the person discharging the handgun does not mitigate his blameworthiness in this case, given his active and central role to the commission of the offence. The same applies to the factual finding that the evidence only allows to infer that he acquired knowledge of the presence and use of the handgun moments prior to the actual discharging. There is no evidence this incident was planned long in advance. Nevertheless, the timing of his acquired knowledge certainly would have allowed for him to take other actions and make different decisions to avoid this offence or at least his participation in it. His actions during and after the offence and the knowledge he acquired after the shooting (a second handgun in the secret compartment of the car for example), along with his actions after the shooting, certainly does nothing to mitigate his blameworthiness, even as a party to the drive-by shooting.

[29] Of course a custodial sentence of a minimum of five years will have an important impact on the accused. He was 28 years old at the time of this offence, he will be 31 years old in a few months in July and has never served a custodial sentence. He has the support of his parents and in fact resided with his parents his entire life, benefiting from a close relationship with both his parents. He did well in school and attended post-secondary educational programs at various colleges. The pre-sentence report indicates he successfully completed a construction engineering program in 2014.

[30] Indeed, even the victim of this crime, paints the accused in a very positive light, even stating that he wants to help him and expressing concern about what jail will do to him (see p. 5 and 6 of the PSR). Of course this position does not come as a surprise given his approach to this trial and his summons to attend court for the purpose of testifying. What is really of concern to this court in this context however, is the accused's involvement and association with Abdullah, driving his car earlier that evening as confirmed by the surveillance evidence, and his participation during and after the shooting at the victim's car. This shooting was in the context of retaliation for the victim's brother testifying in court, years ago now, in another matter involving Abdullah's brother.

[31] In any event, the positive and mitigating elements depicted in the PSR, in relation to his rehabilitation, weigh against the gravity of the offence and the circumstances of the offence. In this analysis, it cannot outweigh or displace such factors nor can it overpower the sentencing principles of deterrence, denunciation and retribution.

CONCLUSION

[32] Having concluded that this court is bound by the Superior Court's decision in R. v. Abdullahi, supra, I would dismiss the accused's Charter application.

[33] As indicated above also, I am guided by Justice Wadden's approach in determining what an appropriate range of sentence is for the accused. As a result of the analysis above, I conclude that the mandatory minimum sentence of 5 years is not in excess of what is required in this case. As such, s. 12 of the Charter is not engaged and it would be unnecessary to embark upon further analysis in this regard. As stated in Lloyd, supra, at para. 18, given that there is no impact on this case, this court does not require to consider the constitutionality of the mandatory minimum sentence.

Released: April 11, 2017

Signed: Justice Julie I. Bourgeois