Court File and Parties

Court File No.: Ottawa 18-RS2300 Date: 2019-01-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mohammad Hussein

Before: Justice Julie I. Bourgeois

Counsel:

• B. Laplante, counsel for the Crown
• L. Goldstein, counsel for the defendant

Reasons for Sentence

BOURGEOIS J.:

Introduction

[1] Mohammad Hussein pled guilty to the following three counts:

1. On December 31, 2017 he operated his motor vehicle while his ability to do so was impaired by drugs, pursuant to s. 253(1)(a) and punishable pursuant to s. 255(1) of the Criminal Code;

2. On the same day, without lawful excuse he carried, handled or transported a firearm in a careless manner or without reasonable precautions for the safety of other persons, pursuant to s. 86(1) and punishable pursuant to s. 86(3) of the Criminal Code;

3. And finally, that same day, he possessed a loaded restricted firearm without being the holder of a licence and without the registration certificate for the firearm, to wit: a 357 Magnum handgun pursuant to s. 95(1) and punishable pursuant to s. 95(2) of the Criminal Code.

[2] The Crown proceeded by indictment and Hussein elected to be tried and sentenced before the Ontario Court of Justice. He pled guilty before Justice Masse on September 6, 2018. A pre-sentence report was ordered, the matter returned before the Court. The pleas were struck and Hussein re-entered his guilty pleas before myself after a plea inquiry pursuant to s. 606 of the Criminal Code. Ultimately, it was set for sentencing on December 13, 2018.

[3] Section 253 carries a minimum penalty of $1,000 for a first offence and a maximum penalty not exceeding five years' imprisonment. It also carries a minimum 12 month driving prohibition order. Section 86(3) provides for a maximum imprisonment not exceeding two years in the case of a first offence under sec. 86(1) of the Criminal Code. And finally, s. 95(2) provides for a term not exceeding 10 years imprisonment when sentencing in relation to s. 95(1) of the Criminal Code. The minimum terms of three or five years imprisonment in the case of a first or subsequent offence described in para. 95(2)(a) were declared unconstitutional by our Supreme Court of Canada in R. v. Nur, 2015 SCC 15.

The Facts

[4] On December 31, 2017 at 2:00 am, Hussein was travelling on Rideau Road when he made a U-turn. He was then travelling westbound on Rideau Road in front of Constable Batson's police cruiser. The officer noticed the motor vehicle "hugging" the centre line, then drifting to the right and crossing the centre line to the left. The officer pulled the vehicle over and identified the driver with a valid Ontario driver's licence as Mohammad Hussein. He noted his slurred and very slow speech, his red glassy eyes and a glass pipe for drug consumption in the centre console. Hussein admitted possessing drugs in the car and handed over a Ziploc bag containing marijuana. The officer ordered him out of the car and as he did so observed him attempting to conceal something. The officer moved him to the side and observed a bundled jacket on the seat and a brown handle of a revolver under it. The revolver was a .357 Magnum handgun and it was loaded.

[5] Hussein was arrested at 2:05 am. The officer also found .068 gr of marijuana and a bottle containing 15 hydromorphone pills and 20 unknown green pills. Hussein was transported to the police station. He continued to display signs of impairment at the station. It was also determined that he does not have a firearm licence or any registration certificate for that handgun. As well, it was determined that the hydromorphone had been prescribed by his doctor to control his pain following a surgery he underwent some time prior to this date.

[6] Hussein was alone in the car when arrested and has no known ties to street gangs or any related illicit activities.

Position of the Parties

[7] Counsel for Hussein takes the following position:

• A minimum fine of $1,000 and 12 months driving prohibition ought to be imposed on the impaired driving count as this is Hussein's first offence;

• It is the position of the defence that a conditional sentence is available for the firearm related charges given that the minimum jail sentence was struck down in relation to the third count (sec. 95) and appropriate for Hussein in this case. During submissions, the availability of a conditional sentence in relation to s. 95 was questioned. Counsel takes the position that should the Court determine a conditional sentence not be available, he argued that the pre-trial custody (4 days at 1.5 days credit = 6 days) along with a "stiff" fine is appropriate and would give effect to the denunciation and deterrence purpose of sentencing as it would take into account the rehabilitation purpose in sentencing Hussein.

[8] The Crown takes the position that a global sentence of three years imprisonment is the appropriate sentence in this case, along with a driving prohibition for 18 months pursuant to s. 259; a firearm prohibition for 10 years pursuant to s. 109 and a DNA order.

The Offences

[9] These offences are serious when considered individually. Our Court of Appeal in R. v. McVeigh, [1985] O.J. No. 207, qualified impaired drivers as potential killers (para. 12). More recently, in R. v. DeJong, 2016 ONCJ 418, Justice Schnall stated at para. 126, "A car with a drunk driver behind the wheel is a loaded gun. Once the driver, a drunk driver with an alcohol concentration of 170, started to drive, he effectively removed the safety catch from the trigger of the loaded gun." It matters not that the cause of the impairment is due to the consumption of alcohol, illicit or prescribed drugs or a combination of any of these substances. Hussein was clearly intoxicated by drugs – he had drug paraphernalia in the console of his car along with marijuana. He also had prescribed hydromorphone, along with unidentified pills.

[10] In this case, Hussein was not only driving impaired but he was also literally carrying a loaded, restricted handgun, a .357 Magnum, at the same time. The Supreme Court in R. v. Nur, supra, at para. 1 and 6 stated: "Gun-related crime poses grave danger to Canadians."; "Firearm-related offences are serious crimes."

[11] It is trite to say that these offences are very serious when considered together.

The Offender

[12] Hussein is a 37 year old man, father of three children from two relationships. He was born in Iraq and described a good and positive upbringing in a family of four children. His family eventually moved to Canada after his father, working as surgeon in Iraq, was captured, tortured and released by the regime. Two of his uncles, university professors, were also captured but they never heard from them after their capture. Hussein arrived in Canada when he was in grade 10 and despite language barriers, he managed to complete high school and attend college. He has been gainfully employed throughout his adult life.

[13] He is said to care for his two youngest children weekly, and supporting them financially. Their mother was a victim of domestic violence to his hands in 2009. He was convicted of two counts of assault against her and was sentenced to 21 days' jail and probation. Despite the past violence, they remain in good terms in co-parenting their children. He has been in a relationship with another woman for almost five years now and that relationship is described as strong and positive. Indeed, she provided a letter to the Court professing her support to Hussein. She also explained that Hussein suffered from depression three years ago and confirmed that he underwent surgery approximately a year prior to these charges and for which he was prescribed medication to manage his pain.

[14] Hussein describes this incident as the biggest mistake of his life. He has no affiliation with gangs and his family was shocked to hear about these charges.

[15] Through his counsel, Hussein explains that he is ashamed to say but he had possession of that handgun because he thought it was "cool" to have it. In his pre-sentence report he explained that he intended to go hunting and one of his friends got him this firearm.

The Sentence

[16] It appears a conditional sentence is now presumably technically available in relation to s. 95 since the minimum mandatory sentence has been declared unconstitutional and struck down by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15.

[17] This is most likely because in light of s. 742.1(e)(iii), an offence prosecuted by indictment for which the maximum term of imprisonment is 10 years, that involves the use of a weapon is not available for this sentence. Section 95 is a possession offence rather than a use offence and therefore presumably available.

[18] Counsel for Hussein relied on R. v. Sellars, 2018 BCCA 195. In that case the British Columbia Court of Appeal determined a suspended sentence for a firearm related offender, found guilty of s. 95 of the Criminal Code, of possessing a loaded prohibited handgun and ammunition in a motor vehicle driven by his mother, was an unfit sentence. However, that Court of Appeal found it fit and legally sound in that case for that particular Aboriginal offender to impose a conditional sentence of two years less one day. The British Columbia Court of Appeal concluded that a sentence below the range was justified in the circumstances of that offender, more specifically the Gladue principles, the offender's diminished moral culpability given his background and the exceptional rehabilitative steps taken by the offender.

[19] This Court is not bound by that jurisprudence. It can somewhat serve as guidance nevertheless. But in cases such as this one, involving a firearm related offence, pursuant to s. 95, this Court needs to and is certainly bound by our Court of Appeal and the Supreme Court of Canada when determining sentence and applying s. 742.1. It has been established in Nur, supra, (indeed, in Sellars, supra, also) that the range for sentencing individuals for such offences is one of incarceration in the penitentiary, starting around the three-year mark. This of course would render s. 742.1 technically unavailable as a sentencing option as the first requirement is a sentence of less than two years.

[20] It has also been clearly established that the paramount sentencing principles are denunciation and deterrence (para. 718(a) and (b) of the Criminal Code). Of course this does not mean the other sentencing principles, such as rehabilitation (para. 718(d)) are to be ignored but they certainly take a secondary role in the analysis. In Sellars, supra, the Gladue principle and s. 718.1(e) took an important place in the analysis given the particular circumstances of that case and the offender's particular background.

[21] But even when considering i) the relatively positive background of Hussein – he has a criminal record related to domestic violence where he served 21 days jail and probation, all of which was served without incident; he has been a productive member of our community, gainfully employed throughout his adult life; he is caring and providing for two of his three children; ii) his personal background – he is the victim of traumatic events in his country of origin; iii) his guilty plea and; iv) the absence of relation to criminal organization, there still appears to be no reason or no legally binding case law not to impose a sentence within the proposed range offered by our appellate courts.

[22] Hussein was a 19 year old adult teenager who was arrested after a foot chase by the police with a prohibited handgun. Police had been called to a community centre after a group of individuals described as "threatening" had been observed. Hussein was also described as an exceptional student and athlete by his teachers at school. He had no prior criminal record. Even though s. 95(2)(a)(i)'s mandatory minimum sentence of three years' incarceration was declared null and void, the sentence of 40 months imposed by the trial judge was upheld as in the opinion of both the Court of Appeal for Ontario and ultimately of the Supreme Court of Canada, it was deemed appropriate.

[23] Charles was living in a rooming house when police was called. In investigating the incident, the place was secured and searched, a semi-automatic handgun and an over-capacity magazine were located in his room. Charles however had a related criminal record. He was sentenced to five years' incarceration and again, that sentence was upheld.

[24] Indeed, at para. 120 McLachlin, C.J. (as she then was) stated:

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles.

[25] At para. 5, the Supreme Court also said:

This [the declaration of unconstitutionality of the mandatory minimum sentences] does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category.

[26] The Supreme Court also discussed sentencing principles, albeit in the context of mandatory minimum sentences, in its application to the principle of proportionality (see particularly para. 43 to 46). At para. 82, the Supreme Court discussed the spectrum of offenders, ranging from the "outlaws" to the "responsible gun owner (…) but makes a mistake as to where it can be stored." Hussein certainly finds himself closer to the outlaw than the responsible gun owner of the spectrum. In other word, he finds himself in the "true crime" category rather than the "regulatory" category type offence described by our appellate courts.

[27] Our Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, also said at para. 6:

While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives which are essential to the maintenance of a just, peaceful and law-abiding society.

[28] Also in Lacasse, idem, the Supreme Court discussed sentencing ranges as guidelines and its use and purpose at para. 56 to 61 in the context of the principle of parity. At para. 58, the Court discussed circumstances or factors where sentencing an offender outside a particular range will be appropriate:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

(Nasogaluak, at para. 44)

[29] The Court also discussed the principle of parity in a given community for a given offence when discussing what they described as the "local situation". At para. 89, the Supreme Court explained:

Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge. In M. (C.A.), Lamer C.J. stated the following:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. [Emphasis added; para. 91.]

He then added the following in the next paragraph:

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [para. 92]

[30] Ottawa is setting new ceilings year after year in relation to gun violence within our City. Anyone paying even limited attention to the news could certainly conclude that our community feels overwhelmed by the increase in gun violence these past couple of years. This is not to say that Hussein is involved in gun related violence but the deterring and denunciatory message here still needs to be heard in relation to possessing a loaded restricted handgun in a car, when unlicenced to possess it and it is unregistered. And unfortunately, the impaired driving cases continue to keep our courts busy every day, year after year.

[31] Hussein told this Court he obtained such a handgun because, at 37 years of age, he thought it was "cool" to have it. In his pre-sentence report, at p. 4, he told the author that he "wanted to start hunting". This is nonsense. He is too old to think it cool and of course no one hunts in Canada with a .357 Magnum. It is illegal to hunt with any kind of handgun in Canada. Be that as it may, what he did is, while intoxicated by drugs, he drove his motor vehicle on Rideau Road and possessed a loaded and restricted handgun, without a licence or registration for it.

[32] This Court is unfamiliar with the situation in British Columbia or unaware of the local situation where Sellars was sentenced. But after considering the paramount sentencing principles of deterrence and denunciation and the related case law, along with the nature and the combination of these offences, I come to the conclusion that a non-custodial disposition and a conditional sentence order are not appropriate.

[33] Hussein had a traumatic episode in his home country but his situation is not captured by the Gladue principles. This does not mean his personal background is not considered. However, contrary to Sellars, it cannot be said that Hussein took "exceptional rehabilitative initiative." (R. v. Sellars, supra, para. 18). Through the pre-sentence report (p.4), we learn, as confirmed by Hussein's girlfriend and his brother, that Hussein "has never had any problems with substance use." However, he was intoxicated by drugs that evening and police found drug paraphernalia, marijuana, prescribed hydromorphone and 20 unidentified pills in his possession. Moreover, we learn through the letter prepared by his girlfriend, he has suffered from a depression three years ago and underwent what is described as "an extremely painful surgery" last year and as a result, it is said that "his inability to work intensified his depression". His girlfriend also explains in that letter that "[t]he idea that Canada has provided so many opportunities that he didn't have in Iraq, has made him ashamed to ask for help." It is difficult to reconcile the prescription for the hydromorphone and the shamefulness felt to ask for help but in the end, it appears none or very limited rehabilitative steps have been taken in this regard.

[34] After referring to the decision from the Court of Appeal for Ontario in R. v. Nur, 2013 ONCA 677, the Court of Appeal for British Columbia quoted its own decision at para. 25 (R. v. Holt, 2015 BCCA 302) in re-aligning the range of sentences for firearms offences at a bottom end, closer to three years' incarceration.

[35] It is important to give weight to the mitigating factors in this case, as discussed earlier at para. 21. It is particularly important to reiterate in this case, Hussein was not involved in any gang-related activity and entered a guilty plea. It should be specified that the absence of gang-related activities is not a mitigating factor but rather an absence of an aggravating factor. These are particularly important factors to consider in this case when assessing sentence.

[36] When balancing the seriousness of these offences and the circumstances of the offender with the paramount sentencing principles of denunciation and deterrence but also with the principles of parity, proportionality and restraint, it appears the following sentence is fit and just in this case:

In relation to the impaired driving, pursuant to s. 253(1)(a): Hussein, considering this is a first offence but the bad driving you exhibited as a result of your clear intoxication, you are sentenced to a fine in the amount of $1,500.00. I grant you three years to pay that fine. Also, you are prohibited from driving any motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of 12 months.

In relation to s. 86, carrying, handling or transporting the handgun without precaution to the safety of others: I sentence you to nine months' jail.

In relation to s. 95: You have spent four days of pre-trial custody upon arrest. You will be credited at 1.5 days and as such the equivalent of six days jail will be indicated on this count. I would have sentenced you to 30 months' jail. You therefore have 29 months and 24 days left to serve concurrently.

[37] In relation to both these counts, I order that you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and any other firearm or any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years, from your release from prison.

[38] In relation to the DNA, s. 95 is a secondary designated offence pursuant to para. 487.04(a), being prosecuted by indictment in this case. Having considered your criminal record; the nature and circumstances of the offence; the limited impact on your privacy and security, it is in the best interests of justice to make the order and as such, I order that you provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act, pursuant to para. 487.051(3) of the Criminal Code.

[39] The handgun will be forfeited pursuant to s. 491(1)(b).

Released: January 17, 2019

Signed: Justice Julie I. Bourgeois