Court File and Parties

DATE: April 1, 2021 Informations No.: 18-50507, 19-RF1013, 19-101573, 20-F5698 ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. AHMED AHMED

Reasons for Sentence

DELIVERED BY THE HONOURABLE JUSTICE N. BOXALL on April 1, 2021, at OTTAWA, Ontario

APPEARANCES: A. Levans Counsel for the Crown L. Greenspon Counsel for Ahmed Ahmed G. Bebbington

BOXALL J. (Orally):

Mr. Ahmed pled guilty to trafficking in crack cocaine in the amount of 3.5 grams, pled guilty to possession of proceeds, an amount of money I’m told is about $7,000, pled guilty to possession of a loaded restricted weapon, a .40 calibre loaded handgun, and he pled guilty to an offence contrary to section 117, possession of a firearm in violation of a court order, a prohibition order. All those offences occurred on February 8, 2019. He also pled guilty to failure to comply with a recognizance for being outside his residence, an offence which occurred on New Year’s Day of 2020.

Very briefly, the facts. On the 8th of February, 2019, while he was a passenger in a motor vehicle, he sold 3.5 grams of crack cocaine. Subsequently, the Ottawa Police executed a search warrant on his residence. The majority of the cash that makes up the proceeds offence was located there and there was the loaded handgun under his mattress. Mr. Ahmed at the time was prohibited from possessing firearms as a result of prior drug convictions.

On January 1st, 2020, he was found outside his residence heavily intoxicated, in violation of his release order.

Following the pleas of guilt on March 18th, 2020, Mr. Ahmed was released pending sentence. Mr. Ahmed brought an application to set aside the guilty pleas; a motion I denied. A pre-sentence report was then ordered.

Mr. Ahmed

Mr. Ahmed is 29 years of age. He’s currently single. He has a significant and related criminal record. Although there are some convictions for fail to comply and possession of property obtained by crime, the most relevant convictions are in 2015, there was a conviction for possession of a weapon, which I’m told was a knife; in August 2017, he was sentenced to eight months and 147 days of pre-sentence custody for three counts of possession for the purpose of trafficking; and in November 2017, he was sentenced to six months and 39 days of pre-sentence custody for another trafficking offence.

Although currently unemployed, and I’m told that’s as a result of the bail order, he has done some work in retail and window repairs. The material filed before me indicates when he is working, he’s capable and professional. I have no reason to doubt that.

He acknowledged a substance abuse problem. He was raised in impoverished circumstances without the opportunity of a father figure. However, I do wish to emphasize he had a mother present who’s still loyal to him today and still here today and obviously, despite the impoverishment, did a very good job of being a mother because he completed high school and he got to college and his record did not start until he was at an age where most parents would like to think a lot of their work was done. Fortunately, mother’s work is never done as we can see from the fact that she’s still here today.

Mr. Ahmed has expressed an interest in rebuilding his life and being pro-social, and I note that during the period of release over the last year since he was released on the house arrest bail, I’m advised that he’s been taking online education courses.

The Crown position is as follows, that on the trafficking he should receive a two-year sentence; the possession of proceeds, six months concurrent; the firearm sentence, four years consecutive; the breach of the court order for having a firearm, a further six months consecutive; the breach of bail, two months consecutive, which totals up to a total sentence of six years eight months.

Defence position would be for a period of three years less credit for pre-sentence custody and less a credit for the restrictive bail conditions.

Aggravating Factors

There are a number of aggravating facts. Mr. Ahmed has a significant related record and prior sentences did not deter – they didn’t stop you, Mr. Ahmed, from coming back. You were in unlawful possession of a loaded handgun. It was in violation of three prior firearm possession prohibition orders. The offences involve a combination of drugs and firearm, although the firearm was not present when he actually trafficked, on the evidence before me.

The nature and quality of crack cocaine, which is a drug causing serious social harm.

In fairness, although not mitigating, there is an absence of some common aggravating factors in that the firearm was in the residence, was not mobile at the time of seizure.

Mitigating Factors

Very few. Mr. Ahmed pled guilty. He is capable of a pro-social lifestyle, as indicated by his performance on the very restrictive bail conditions over the last year.

Key Principles of Sentencing

Some key but not exclusive principles applicable to this sentencing. The fundamental purpose of any sentence is to protect society and contribute along with crime prevention initiatives to respect for the law and maintenance of just, peaceful and safe society. The sentence must express society’s disapproval with the crimes committed. The sentence must be sufficiently long to deter Mr. Ahmed, but also other like-minded persons from getting involved in similar offences. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. I should exercise restraint and impose the shortest sentence that accomplishes all the goals and principles of sentence. The principle of restraint applies in all circumstances and continues to apply even though I’m imposing a penitentiary sentence.

Gun Offences

The presence and use of illegal firearms must be deterred, denounced and stopped. Possession when it falls in the criminal end of the spectrum, although clearly less serious than use, still requires that denunciation and deterrence are paramount to determining the fit and appropriate sentence.

Prevalence in the Community

Possession and use of firearms has become increasingly prevalent in Ottawa. Although Ottawa is still a very safe city, there is far too much gun violence and it is clearly a matter of public concern. While the offence before me does not involve actual use or actual violence, both possession alone and the use of firearms is a growing concern in this community.

Rehabilitation

Although the rehabilitation of an accused person is always a consideration, it is clear for these offences that the paramount sentencing principles are deterrence, both specific to Mr. Ahmed and general deterrence, as well as denunciation.

Breach of Court Orders, Consecutive or Concurrent?

An offence involving a breach of a court order would normally be consecutive to a sentence imposed for a substantive offence while allowing for it to be concurrent in appropriate cases such as where, if it was consecutive, the total sentence would be excessive when considering totality or proportionality. Furthermore, if a firearm and a quantity of drugs are seized together, a concurrent sentence is sometimes imposed. A conviction for possession of a firearm in violation of a court order prohibition should almost always be consecutive. In this particular case, the sentence for violation for the firearm prohibition order must be consecutive.

Furthermore, in this case, the offence of trafficking although occurring on the same date as the gun possession are discrete. He was not in possession of the firearm when he trafficked. I have not considered the firearm as an aggravating factor in determining the sentence for the trafficking. If on determining the total sentence it results in one that is unduly harsh, adjustment can be made to the individual sentences and, thus, in this case, the sentence for possession of the loaded handgun should be consecutive to the sentence for the offence of trafficking.

A breach of bail would also normally result in a consecutive sentence, subject to totality concerns. The breach in this case is a violation of a house arrest condition. Those restrictive bail conditions must be imposed for the integrity of the bail system. Some consecutive sentence is required.

Prior Criminal Record

Although the record is an aggravating factor, an offender is not to be repunished for prior crimes and the sentencing court may not raise the sentence beyond what would otherwise be a fit sentence on account of a prior record.

Plea of Guilt

A plea of guilt is a mitigating factor. A plea of guilt can be given different weight in mitigation depending on the circumstances. For example, was it an early plea of guilt or one after a preliminary or even after the trial had commenced? Was it an expression of genuine remorse or recognition of the inevitable when faced with overwhelming evidence?

In this particular case, the accused pled guilty at an early time. No dates for a preliminary or trial were ever set. However, he then applied to have the plea vacated; a motion that I denied. That would be some evidence that the plea is not a genuine expression of remorse. However, Mr. Ahmed did express regret to the probation officer. He’s expressed it in court, to me. He clearly must have expressed it to his mother who’s present with him today.

What is described by the probation officer is only partially accepting responsibility, maybe in fact accepting responsibility for what he did. The evidence is lacking to make a finding that the gun was being stored for someone else, but equally it is lacking to find that it was not. In that sense, Mr. Ahmed may have expressed regret to the probation officer for what he’d done and responsibility for that. In addition, although he applied to have the plea set aside, I note that he did not give evidence he was innocent but rather made the application on more formal grounds.

There is no fixed rule of the amount of weight in mitigation to be attached to a plea of guilt. It is in the discretion of the trial judge. I find in this case the plea of guilt remains a significant mitigating factor. It was an early plea. It was a plea during the pandemic. He is being sentenced during the pandemic. The pandemic creates additional strains on the justice system and pleas are important. It is not enough for a judge to say a plea is a mitigating factor. The sentence must reflect that.

Level of Moral Blameworthiness

He does not suffer from mental illness and his substance abuse is only indirectly related to these offences. He is a mature offender with a prior record and awareness of the consequences of his behaviour. What I have is a person with a prior trafficking record and who trafficked on the date in question while having possession of a loaded handgun under his mattress at home. He did not have the gun on his person or have it mobile. On the other hand, he had a loaded handgun under his mattress and there are no mitigating or exceptional reasons being shown for having it. The level of moral blameworthiness for Mr. Ahmed is at moderate to high.

Deliberate Versus Spontaneous

The possession of the firearm in this case involved some prior steps and consideration. It was not spontaneous but deliberate. The same principles would apply to the trafficking.

Pre-Sentence Custody During the COVID Period

Most of the pre-sentence custody was served in the early stage of the pandemic. I accept that there were lockdowns and a heightened concern. A number of my colleagues have given additional credit for these reasons. The efficient administration of justice in the Ontario Court of Justice is not enhanced if this issue is litigated in each case during the pandemic.

Parity is important. The trial judge has the discretion and must consider and exercise that discretion in each and every case. In this case, I intend to give an additional .5 days of credit for each day of pre-sentence custody served when the COVID was a concern.

The Significance of the Pandemic Going Forward

This is an extremely difficult consideration. I’m satisfied that I can take judicial notice that the conditions in the custodial institutions are difficult and challenging as a result of the current pandemic. In addition, I can consider the high likelihood that the conditions under which any sentence I impose will also be more difficult as a result of the pandemic and the necessary steps to be taken in an effort to keep persons in custody and the staff as safe as possible and that this will likely continue for a significant period of time. This factor reinforces the requirement to exercise restraint and impose the shortest possible sentence that meets all of the principles of sentence.

Restrictive Bail Conditions

A sentencing judge has the discretion to give credit for restrictive bail conditions. Mr. Ahmed was initially on bail following his release for a period of some 301 days. He breached that at least once because he pled guilty in front of me on that when he was out of his residence on January 1st. The period of time that I am told that he was on release on that period was 301 days. In the absence of any specific evidence of how he performed combined with the fact that there’s a proven conviction, I’m not prepared to give any credit for his time on bail during that period.

The situation is different, however, for the house arrest bail that he entered into with myself. Mr. Ahmed was on a house arrest bail for approximately the last year, 378 days in fact. At the time of the plea, Mr. Ahmed and I had a discussion, as I’m prone to do. Mr. Ahmed said that he was going to meet these conditions and I’m satisfied that he has. I’ve asked and been told that - no evidence of any breach. It’s over a year.

As we all know just from having COVID restrictions on us, house arrest is extremely onerous. It’s onerous when we’re allowed to go out to exercise, go out to walk with a friend, when we can meet somebody outside, when we can do certain things. Being under complete house arrest for more than a year is extremely difficult.

In some cases, the sentencing judge can give an actual specific credit for restrictive bail conditions. Alternatively or in addition, compliance with restrictive bail conditions can be taken into account in determining the length of the sentence that is required to meet specific deterrence as compliance with restrictive bail conditions for a lengthy period of time is some evidence that the accused is capable of complying with conditions and not reoffending.

The compliance with the bail conditions in this case is of some importance as prior sentences and court orders did not deter Mr. Ahmed. The fact that he’s been on restrictive bail conditions, is at least expressing insight, has abstained from substance abuse and has done some online education are all mitigating factors in this particular case. This is important in this case in considering the extent of the need for specific deterrence and this operates in mitigation.

With respect to applying a specific credit, I must consider that he was released on these conditions following his plea on his request. Furthermore, the delay in getting to sentence is largely but not solely attributable to steps he and/or his counsel have taken, notably the motion to strike the plea. Nevertheless, the fact remains he has been on restrictive bail conditions for the last year.

I intend to impose some credit for the restrictive bail conditions. I am fixing the credit for the restrictive bail conditions for the last year at 100 days.

Individual Sentences

I am now going to come and determine the individual sentences to be imposed.

Trafficking in cocaine: There’s no dispute the usual range for trafficking in this quantity of cocaine is somewhere between six months to two years. Mr. Ahmed received prior sentences in the range of six to eight months for this in the past. Those did not deter him. In the circumstances, the sentence must be somewhat longer than what was imposed before, but I am of the view that it does not need to approach the sentence being requested by the Crown. The sentence for the trafficking in cocaine that I would have imposed would be 12 months.

The most – and I’ll get, Madam Clerk, to figuring out – we go and we’ll do the order – because that’s not the predominant offence. The predominant offence here, of course, is the possession of the loaded handgun. I’m taking into account all the circumstances in this case, not only the matters I’ve referred to previously but the submissions of counsel. I note that it was a plea of guilt. I’m applying significant weight to that. The gun was not mobile and was in the mattress at his home.

I’m familiar with the cases. There is still some considerable discretion in trial judges, particularly in the Ontario Court of Justice, on early pleas, in the pandemic, to impose an appropriate sentence. In my view, exercising restraint and considering all the circumstances, the lowest sentence that I could consider would be one of two years or 730 days.

The sentence that I would have imposed for the possession of the loaded handgun would have been 730 days. From that 730 days, I am going to give various credits:

• For the initial 27 days of pre-sentence custody, I’ll factor that at 1.5, which is 43 days.
• For the 78 days in pre-sentence custody during the COVID time, the credit would be 1.5 but I’m going to give an additional credit of .5 for each day which effectively makes it 2 days for each. So those 78 are going to be credited at 156.
• For the restrictive bail that he complied with, with the order that he undertook with me, I’m going to give him credit for that for 100 days.

So the total credit, if my arithmetic is correct, for the pre-sentence custody and the bail credit is 299. So on the 95, possession of a loaded handgun, which is the lead offence, the sentence I would have imposed is 730 days. I’m going to subtract 299 days, which leaves a sentence remaining on that of 431 days.

On the trafficking in cocaine, the sentence will be 365 days consecutive.

On the possession of proceeds, the Crown is agreeing to a concurrent term, and I agree. On the possession of proceeds, it’ll be 120 days concurrent.

On the section 117, possession and violation of the prohibition order - prohibition orders are extremely serious. The accused would be cautioned when it was made. The Crown is asking for 6 months. The Court of Appeal has indicated that the range is 6 to 12 months for a first-time offence of that. I’m going to impose 180 days consecutive on that. It has to be consecutive in order to give meaning to it. And I have not considered the fact that there was a prohibition order as aggravating with respect to any of the other offences, separate and distinct.

The breach of the bail condition, again it has to have meaning, not to be concurrent. I’m imposing 30 days consecutive.

In determining all of these sentences, as I determined the individual sentences, I had also factored in my mind the totality principle and where would we end up ultimately. As I do the calculations, we end up ultimately with a sentence that, had there not been pre-sentence custody, would have been 3 years and 7 months. With all the subtractions for the credits that I’m giving, there’s a sentence remaining of 1,006 days left to go, which would be approximately 2 years and 9 months, Mr. Ahmed.

Conclusion

Can you stand, sir.

I’m sentencing you today to a sentence of 1,006 days. I’m also going to prohibit you from having firearms, ammunition, explosive substances for life. I’m ordering you supply a sample of your DNA. I’m making the forfeiture order as applied, forfeiting the money and the other items in question.

Do you understand the sentence, sir?

AHMED AHMED: Yes, Your Honour.

THE COURT: Do you have any questions at all?

AHMED AHMED: No, Your Honour.

THE COURT: Okay. Good luck to you, sir. You have the ability to do it, you’ve got a mother supporting you. Don’t end up like those other young men that we were talking about.

AHMED AHMED: Your Honour, you’ll never see me again.

THE COURT: Okay. That’s what you said and I – you’ve made it so far, so. Your mom doesn’t want to ever see me again either.

MS. LEVANS: Your Honour, I believe there’s remaining counts and remaining Informations. My request is that those be marked withdrawn.

THE COURT: Okay. And I’d be remiss if I didn’t thank both counsel for their materials. They were thorough and complete and they were supplied in advance which allows the Court to deal with it in short order. Much appreciated.

MR. GREENSPON: Thank you, Your Honour. I had mentioned....

THE COURT: And with respect to – you’d need on the warrant that he’d like to take some materials?

MR. GREENSPON: Yes, they would be educational softcover books that he has in his possession.

THE COURT: I’ll handwrite it on and recommend it but I have no control.

MR. GREENSPON: I understand. Thank you.

Certificate of Transcript

EVIDENCE ACT, subsection 5(2)

I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcript, produced to the best of my skills and ability, of the recording of R. v. Ahmed Ahmed in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR07_20210401_085418 6_BOXALLN, which has been certified in Form 1 by John Curry.

April 8, 2021 Date Lynn Carrière