Court Information

Date: 2017-12-04

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Harrun Elmi

Before: Justice L. Feldman

Heard on: October 30, 2017

Reasons for Judgment released on: December 4, 2017

Counsel:

• J. Hanna for the Crown
• M. Bacchus for the accused Harrun Elmi

FELDMAN J.:

Facts

[1] Harrun Elmi entered guilty pleas to charges of Operation Impaired and Possession of a loaded Prohibited Firearm for which he had neither authorization nor licence.

[2] He admits the following facts: On March 8, 2016, police received information about an impaired driver travelling eastbound in the collector lanes of Highway 401 near Allen Rd. in Toronto. Other motorists had reported that the driver, Mr. Elmi, was unable to keep in his lane and that at one point had struck one of the barriers, but continued driving. Police were told, as well, that he came in contact with a second motor vehicle, but again continued travelling eastbound, both weaving and failing to stay within his own lane.

[3] P.C. Hodgins observed the defendant in the express lanes in the area of Markham Rd. drive onto the paved shoulder and strike the cement barrier twice.

[4] Mr. Elmi stopped his vehicle on the right shoulder. The officer approached and opened the driver's door. He saw that the defendant had red, watery and droopy eyes. Mr. Elmi needed help both to get out of the car and to be able to stand up. He also had difficulty standing as his knees were shaking and, as well, in order to remain upright he had to hang onto both the door and roof. The officer believed he had reasonable grounds to arrest the accused on a number of drinking and driving charges and did so.

[5] P.C. Hodgins searched Mr. Elmi incident to arrest. He found a silver handgun in the defendant's right front jacket pocket. Its magazine held 6, 9 mm. luger bullets. It was particularly aggravating that the safety was in the "off" position, although there was no bullet in the chamber. The weapon was in good firing condition. The ammunition was capable of being discharged by the firearm.

[6] Mr. Elmi required assistance, almost falling backwards, while being escorted to the police cruiser. He walked slowly and with a wide stance. He was placed in the back of the cruiser at 8:38 p.m. He was provided his rights to counsel, after which he asked to contact his own lawyer. The arresting officer cautioned the accused and made demands for a sample of his breath, as well as a drug recognition evaluation.

[7] At the police station, Mr. Elmi had difficulty walking into the booking hall. He was unsteady on his feet, almost falling over at times. His eyes drooped and appeared closed. He seemed to struggle to stay awake. When he spoke, his speech was slurred and his words hard to understand.

[8] The defendant was given an opportunity to speak with his wife and two lawyers. When taken from his cell to do so, he was lethargic and unsteady on his feet.

[9] At 10:57 p.m., Mr. Elmi underwent a drug recognition evaluation. As well, he supplied a urine sample for analysis that indicated the presence of morphine, codeine and the anxiety drug, alprazolam. It was these prescription pills that were at the root of the impairment of his ability to drive.

Circumstances of the Offender

[10] Mr. Elmi is 24 years old. He is married with 2 very young children. He has the support of his wife, mother, brother and 3 sisters. He is a high school graduate and has been accepted to 3 community colleges. In 2012, he was convicted of Fail to Appear and Fail to Comply with Recognizance.

[11] The defendant worked with family members in Alberta in parts of 2011 and 2012. This included work in the oil fields. He hopes to return to find employment in either Alberta or Saskatchewan, where he had been involved in construction labour.

[12] To his credit, while he was on bail, Mr. Elmi participated in a substance abuse program and coping strategies provided by the YMCA. His counsellor believes has gained insight and made progress.

[13] Mr. Elmi has written a letter to the court. In it, he expresses remorse for his "very poor choices". He expresses sadness at the disappointment of his mother and the inevitable problems he has created for his loved ones. But he says he is determined to achieve his goals that include employment and education in order to better provide for his family. He recognizes that he has failed his children and asks for leniency.

[14] I view his expression of remorse as genuine, if limited, in that it is self-focused and the behaviour regarded merely as a function of poor choice, rather than one of risk to innocent members of the public.

[15] Mr. Elmi's spouse, Yasmin Sabrie, is only 23. She believes this offence is out of character for her husband and should not define him. She says his family needs him and will always offer him support. His sister, Marwa Elmin, also urges leniency. She says her brother is hardworking, a devoted father and deserves another chance.

Positions of the Parties

[16] Both parties jointly submit that a $1500 fine, plus a driving prohibition of 18 months be imposed on the Operation Impaired charge. I accept the joint submission. A $1500 fine will be imposed. Mr. Elmi will be prohibited from driving a motor vehicle anywhere in Canada for 18 months.

The Crown's Position on the s. 95 Offence

[17] Mr. Hanna submits that the authorities support the imposition of a 3-year sentence, in this case, less pre-trial custody of 8 months, 22 days, ordinarily calculated at a 1:1.5 ratio: R. v. Summers, 2014 SCC 26. What complicates reliance on this benefit is that the defendant's time in custody since March 14 was self-imposed by reason of his bail being cancelled for breach of his release conditions as a result of his failure to comply with a term of house arrest. In such a case, Code s. 719(3.1) mandates a ratio of 1:1.

[18] Despite this, the Crown suggests holding to the Summers ratio as a quid pro quo for the defence stepping back from a constitution challenge to the s. 95 minimum sentence. He does so, in addition, to account for formerly stringent bail conditions and the enhanced credit sought by reason of the defendant having endured significant lockdowns and triple booking while in custody.

[19] The 1:1.5 ratio would result in equivalent pre-trial custody of 13 months. Mr. Hanna also asks that a DNA order be made and that a Weapons Prohibition Order under s. 109 be imposed for life.

Position of the Defence on the s. 95 Offence

[20] Ms. Bacchus accepts use of the Summers ratio given her concession, but in addition, seeks enhanced credit for stringent bail terms and difficult conditions of custody. She submits that the authorities support a sentence of 2 years, less pre-trial custody that should be enhanced as she suggests.

The Sentencing Authorities

[21] The authorities indicate that exemplary sentences for offences involving unlawful possession of firearms warrant a substantial, most often penitentiary, term. In R. v. Nur, 2013 ONCA 677, the 19-year old accused fled from the police in the course of which he threw away a loaded handgun for which he had no license. He had been near the entrance to a community centre in a high crime area.

[22] Doherty J.A. said, at para. 206: "individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere 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] Justice Doherty was of the view that despite mitigating factors and outside the question of the constitutionality of the minimum sentence, the accused could well have received a sentence of 3 years.

[24] In similar vein, K. Campbell J., in R. v. Browne, 2014 ONSC 4217, imposed a sentence of 3 years, where the accused was found at his residence in possession of a loaded prohibited semi-automatic firearm. He said, at para. 25: "the criminal possession of handguns in such circumstances remains an all too prevalent threat to the people of Toronto…These firearms are almost invariably tools employed in some other criminal activity, and their possession and use, on occasion, tragically results in serious bodily harm or death".

[25] Justice Campbell went on to say that sentences for such possession must reflect the gravity of the offense and the need to denounce and deter such crimes so that the public will be protected.

[26] Goldstein J. sentenced a first offender to 3 years for a s. 95 offence in R. v. Beals, [2015] O.J. No. 2306 (Ont. S.C.). There, police saw the accused, a first offender, throw a loaded semi-automatic handgun out of his car as he got out following a street racing automobile accident. In imposing an exemplary sentence, Justice Goldstein, at para. 31, stated the chillingly obvious fact that such weapons are possessed solely to be used to kill or intimidate people.

[27] In R. v. Nguyen, [2017] O.J. No. 3962 (Ont. S.C.), where the accused was found in possession of cocaine and a loaded prohibited firearm that had one round in its chamber, Kelly J. reinforced the realistic notion that the only reason one might possess a loaded firearm was to use it and that it was capable of causing tragic harm.

[28] In this regard, she said, at para. 30, that "firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons".

[29] In this case, Justice Kelly felt that the appropriate sentence was 3 years, but imposed 2.5 years given totality concerns and the direction of Rosenberg J.A. in R. v. Borde (2003), 63 O.R. (3d) 417 that "a first penitentiary sentence should be as short as possible".

[30] The decision in R. v. Smickle (2014), 2014 ONCA 49, 306 C.C.C. (3d) 351, is helpful in determining the lower end of the appropriate range of sentence for offences of this nature. There, the accused was found with a loaded cocked handgun merely posing inside an apartment, behaviour the court nonetheless viewed as a "true crime" that posed a serious and immediate risk to others.

[31] At para. 19, the court said that "most s. 95 offences will attract a penitentiary term even for first offenders" and even "less serious" versions of the offence, such as in this case, "will demand the imposition of sentences at or very near the maximum reformatory sentence…". Mr. Smickle was sentenced to 2 years less a day.

The Downes Credit

[32] Following his arrest on March 8, 2016, Mr. Elmi was released on bail on March 10, one term of which was a strict house arrest condition. He was returned to custody on Feb. 26, 2017, following his arrest on other charges, including Fail to Comply with Recognizance. He deposes in an affidavit that as he was unable to return to Alberta to a prospective job, he lost his home and furniture that he had there.

[33] In R. v. Downes, 79 O.R. (3d) 321, Rosenberg J.A. held that in appropriate circumstances, a court may give credit on sentence for stringent bail conditions. He said, at para. 37, that house arrest, in particular, is a relevant mitigating factor when a court exercises its discretion in this regard. Factors to be considered include the length of time spent on bail, the impact on the offender's liberty and his ability to carry on normal relationships, employment and activity.

[34] Mr. Elmi was on bail under house arrest for just under a year. As a result, he lost an employment prospect in another province along with his possessions. At the same time, there is no certainty he would have been granted permission to leave the province while on bail. Nonetheless, this restriction was significant and had an adverse impact on his liberty and ability to support his young family. I would grant 2 months of credit on sentence for this significant restriction.

The Duncan Credit

[35] In R. v. Duncan, 2016 ONCA 754, the court held that "particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)". The court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. It is necessary that the accused provide evidence to support the inference that he or she suffered particularly harsh treatment.

[36] Mr. Elmi was housed in the Toronto South Detention Centre for just under one month. He faced lockdowns 14 times, 10 of which were full days, due to staff shortages. He deposed to suffering anxiety from the lack of privacy and being confined in a small space with others often without access to phone, programs or family contact.

[37] Mr. Elmi was incarcerated at the Toronto East Detention Centre for 7 months. He was triple bunked 40% of the time. He was offered yard privileges only 20% of the time he was there. There were various levels of lockdown over 76 days due to staffing and 5 full days as a result of institutional searches. The defendant deposed that this resulted in significant disruption to showers, use of the telephone, programs, family visits and religious observance, all of which he found very stressful. He claims to feel sad and depressed.

[38] These are troubling facts. The more difficult conditions imposed on inmates and reduction of their minimal privileges, due mostly to staff shortages, inevitably increases the prisoner's stress in a manner that is both unnecessary and unacceptable. I give some weight to the defendant's evidence that these conditions caused him emotional distress. In the circumstances, I would mitigate the sentence by 2 months.

Conclusion

[39] The circumstances of Mr. Elmi's possession of a firearm on a public highway are troubling and serious, given that his motor skills and judgment were diminished. As well, his ability to drive was impaired by drug.

[40] Loaded firearms are used to kill, maim or intimidate. Innocent members of the public were at risk from this defendant whose purpose in the possession and capacity for rational thought and lawful behaviour were questionable.

[41] I am mindful of Mr. Elmi's remorse, the support of his family and his rehabilitative prospects. However, it is necessary to denounce his "choice" and to deter similarly-inclined individuals by an exemplary sentence that will protect the public.

[42] Mr. Elmi will be sentenced to 3 years. In light of his equivalent 13 months of pre-trial custody, he will serve 23 months, mitigated further by 4 months credit for being subject to stringent bail and harsh presentence incarceration conditions. The sentence will be 19 months. In addition, he will be placed on probation for 2 years on terms to be discussed with counsel.

Released: December 4, 2017

Signed: "Justice L. Feldman"