Ontario Court of Justice

Date: 2019-05-15 Court File No.: Toronto 18-10000024

Between:

Her Majesty the Queen

— AND —

Mubashar Allaudin

Before: Justice P.F. Band

Reasons for Sentence & Relief from Forfeiture

May 15, 2019

Counsel:

• Ms. M. Goldenberg — counsel for the Crown
• Mr. C. Bottomley — counsel for the accused, Mr. Allaudin

Procedural Background

[1] On January 29, 2019, after trial, I found Mr. Allaudin guilty of the offence of mischief. My reasons for judgment can be found at 2019 ONCJ 53. On May 1, the parties made "open" submissions as to the appropriate sentence. The Crown also sought forfeiture of Mr. Allaudin's motorcycle. With reasons to follow, I granted Mr. Allaudin relief from forfeiture and ordered that he be conditionally discharged and placed on probation for 12 months. Among the conditions I imposed are the following:

• No contact with former co-accused;
• Not to operate or be in the care or control of a motorcycle;
• Enroll in and successfully complete a Canada Safety Council motorcycle rider training program called "Gearing Up"; and
• Perform 40 hours of community service.

Introduction

[2] In the summer of 2017, Mr. Allaudin organized a motorcycle ride. Mr. Allaudin also led and participated in the ride, which took place on a sunny and dry Sunday that August. At least 100 motorcyclists rode on streets and highways around the GTA. Some of the riders engaged in clearly dangerous driving. Many engaged in stunt driving, which was also risky. Also, the group caused a number of complete traffic stoppages on 400 series highways around Toronto. During those stoppages, some riders performed a variety of stunts and risky maneuvers. The stoppages lasted four minutes or less. They also affected traffic travelling in the opposite direction – mostly because the riders and their behaviour were something of a spectacle.

[3] Mr. Allaudin was charged with dangerous driving, mischief[1] and conspiracy to commit both of those offences. The Crown proceeded by way of indictable procedure. The mischief allegation could be proven in two ways: first, in relation to riders driving dangerously and terrorizing motorists; second, for causing a number of complete traffic stoppages.

[4] I found Mr. Allaudin guilty of mischief for his role as a principal and party to the traffic stoppages only. I will not repeat my reasons at length. For present purposes, the following are the most pertinent findings of fact:

• Mr. Allaudin was "the organizer, marshal and helmsman of ride."
• The apparent purpose of the stoppages was to clear a stretch of highway where riders would be able to perform stunts unimpeded by other motor vehicles. In that sense, I found that Mr. Allaudin and the group had "turned the streets and highways into their own (at times) high-risk playground."
• Mr. Allaudin engaged in stunt or risky driving on roads and highways (wheelies and a number of brief periods when he removed his hands from the handlebars) that fell short of dangerous driving.

Position of the Parties

Sentencing

[5] Relying in particular on the principle of general deterrence, the Crown sought a suspended sentence and 12 months' probation. She recommended conditions prohibiting Mr. Allaudin from operating a motorcycle and having contact with his former co-accused, and requiring him to perform 30-40 hours of community service.

[6] The Defence sought a conditional discharge, citing the need to keep rehabilitation and restraint in mind in the case of a youthful first offender. Defence counsel recommended conditions prohibiting contact with Mr. Allaudin's former co-accused and requiring that he perform community service.

Forfeiture of Mr. Allaudin's Motorcycle — ss. 490.1(1) and 490.41(3) CC

[7] The Crown sought forfeiture of Mr. Allaudin's motorcycle, which had been seized with other items during a judicially authorized search of his parents' home.

[8] The Defence conceded that the requirements set out in ss. 490.1(1) were met but sought relief from forfeiture pursuant to ss. 490.41(3).

Reasons for Sentence

Circumstances of the Offence

[9] It is true that the riders essentially took over the highways and stopped traffic for a few minutes on a number of occasions. Some rode dangerously and terrorized other motorists at various times. It is also true that riders performed risky stunts at various times, including after the stoppages. But Mr. Allaudin was found guilty only of orchestrating and participating in the stoppages. This is the conduct for which Mr. Allaudin must be sentenced.

Circumstances of the Offender

[10] Mr. Allaudin is 23 years old. He was 21 years old in August 2017. He lives at home with his parents. He has three siblings. He works in the family business and has started a business of his own. He is studying part-time at Sheridan College.

Aggravating Factors

[11] The Crown submits that Mr. Allaudin created "mayhem." This is an apt description of the behaviour of some of the riders – particularly those that I referred to as a "black wave" in my reasons for judgment. But I did not find that Mr. Allaudin had been among them or that he had encouraged them to do what they did. To the extent that stunts were performed during the stoppages, they consisted mainly of "smoke shows" and wheelies. No other members of the public were endangered by them and no property was lost or damaged.

[12] The aggravating factors in this case are the following:

• As the organizer of the ride, Mr. Allaudin displayed considerable planning.
• There were multiple and complete, albeit brief, traffic stoppages on 400 series highways.
• Mr. Allaudin has two findings of guilt for speeding under the Highway Traffic Act; however, the speeds are not known and one of them appears to post-date this offence.

Mitigating Factors

[13] After trial, Mr. Allaudin is not entitled to the mitigating effect of a guilty plea. That said, one cannot ignore the fact that he was acquitted of the most serious offences charged: dangerous driving and conspiracy.

[14] The mitigating factors in this case are the following:

• Mr. Allaudin has no criminal record.
• He is a youthful first offender.
• He has the support of his family.
• He is hard-working and industrious.
• He is studying to further enhance his role in the family business.
• With the exception of one speeding ticket, he has been law-abiding while on bail for almost two years.
• For the first four months of that period, he was subject to a complete driving prohibition.

[15] I believe that Mr. Allaudin has matured since these events and that he has learned from the process. He was particularly marked by the fact that his behaviour led to the execution of a search warrant at his parents' home. He has since changed his social circle. He sees himself as a mentor to his younger siblings and cousins – who are aware of the matter – and wishes to be a positive role model.

Sentencing Principles

[16] Neither party was able to find any authorities resembling this one. Nor was the Crown able to suggest that this type of conduct is on the rise. It appears that this case is the first of its kind.

[17] Nonetheless, I accept that general deterrence and denunciation are relevant principles in this matter, given the conduct that Mr. Allaudin organized and participated in and its impact on the community. But they are not the only principles at play. Mr. Allaudin is a youthful first offender whose prospects for rehabilitation are very positive. Above all, the sentence I impose must be proportionate to the gravity of the offence and Mr. Allaudin's moral blameworthiness.

[18] Since no cases like this one have been presented to me, the principle of parity is not directly applicable. However, as the Crown candidly advised, others who had pled guilty to dangerous driving regarding their participation in the same ride received discharges or suspended sentences depending on time served, criminal records and "up front" work, among other factors.

[19] In relation to conditional discharges, I remind myself of the following principles, which are among those listed in R. v. To, 2015 ONSC 1169:

• They are not restricted to trivial offences.
• They can be judiciously employed even where general deterrence is called for.
• Their deterrent effect is not necessarily inferior to that of suspended sentences.
• The notable passage of time since the offence, combined with law-abiding behaviour, is a relevant factor.

Conclusion

[20] A conditional discharge is clearly in Mr. Allaudin's interests. Moreover, one that is properly crafted to take account of the need to deter others, to foster Mr. Allaudin's continued rehabilitation, to promote his respect for the law and to provide reparations to the community is not contrary to the public interest.

[21] The conditions that I have imposed on Mr. Allaudin include prohibiting him from riding a motorcycle for 12 months, requiring him to take additional motorcycle training (at his own expense) before doing so again and performing 40 hours of community service.

[22] In light of all the circumstances, this disposition constitutes a fit and proportionate disposition.

Reasons Regarding Relief from Forfeiture

[23] Mr. Allaudin's motorcycle is worth approximately $13,000. He does not own it outright; rather, he has paid off approximately $4,000. It is subject to a lien.

[24] A forfeiture application is separate from the sentencing process and the regime set out in the Criminal Code constitutes a "complete code." While forfeiture can be punitive, "it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated … offences": see R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762 at paras. 22, 47-48. Judges have discretion whether or not to grant relief from forfeiture: see R. v. Trac, 2013 ONCA 246 at para. 96. The question is whether the court is satisfied that the impact of an order of forfeiture "would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence."

Nature and Gravity of the Offence

[25] While the behaviour of the group of riders who rode dangerously can be said to have caused "mayhem", Mr. Allaudin's conduct cannot be described in such dramatic terms. He orchestrated and participated in a number of brief traffic stoppages during which riders performed stunts. While these interfered briefly with other motorists' lawful use of the highways, no one was harmed and no property was damaged or lost. Mr. Allaudin's conduct lies toward the lower end of the range of gravity of criminal offending.

Circumstances Surrounding the Offence

[26] The offence took place on a sunny Sunday when road conditions were ideal.

Criminal Record, if Any

[27] Mr. Allaudin has no criminal record.

Conclusion

[28] Having considered the factors set out in ss. 490.41(3), I came to the conclusion that the impact of an order of forfeiture would be disproportionate in Mr. Allaudin's case. For this reason, I granted relief from forfeiture. I would add that I also came to the view that there was no need to remove Mr. Allaudin's motorcycle from circulation in order to render it unavailable for future offending.

Released: May 15, 2019

Justice Patrice F. Band Ontario Court of Justice

[1] Pursuant to ss. 430(1)(c) of the Criminal Code.