Court File and Parties

ONTARIO COURT OF JUSTICE DATE: February 28, 2023 COURT FILE No.: Toronto (West) 20-55001284, 20-55003099, 20-55002613

BETWEEN:

HIS MAJESTY THE KING

— AND —

Mahdi Kamal Afrah

Before: Justice Maylor

Submissions on: January 17, 2023 Oral Reasons released on: January 30, 2023 Written Reasons released on: February 28, 2023

Counsel: Patrick Travers.................................................................................... counsel for the Crown Paula Seymour............................................................................. counsel for the defendant

Maylor J.:

Introduction

[1] Mr. Afrah, the defendant, plead guilty to offences related to firearm violence. Such offences have been decried by all levels of court as a scourge on our society, particularly in the Toronto region. Crimes involving handguns are far too common. Handguns are used to seriously injure, maim, or kill people. Courts have repeatedly emphasized the need for exemplary sentences: see R v Jama, 2021 ONSC 4871 para. 42 and R v Kawal, 2018 ONSC 7531 paras. 11-16.

Circumstances of the offence

[2] By way of an agreed statement of facts filed as an exhibit, the defendant plead guilty to aggravated assault, discharging a firearm with intent to endanger, possession of a loaded prohibited firearm and breaching a release order.

[3] On October 1, 2019, the defendant attended an underground parking garage for a fitness company. He was the front passenger in a motor vehicle driven by an unidentified party. Surveillance video shows the defendant exit the vehicle holding a firearm with an extended magazine. He fired several shots towards the direction of two men hiding behind parked cars. The defendant left the scene in the same vehicle that brought him there. In the subsequent investigation of the scene by the Toronto police forensic unit, the officers located 26 spent 9mm cartridge cases, 3 projectiles and 14 bullet fragments.

[4] One of the persons who was fired upon, a Mr. Hatim Abdullahi, suffered a gunshot wound to the left arm. When he was treated at the hospital, it was determined to be an entry and exit wound, with no fractured bones.

[5] On May 7, 2020, the defendant was arrested at his Toronto address. He was in possession of a Glock-19 semi-automatic handgun with the serial number obliterated. The handgun had an overcapacity magazine fully loaded with 30 rounds of ammunition. The defendant’s bullet proof vest was also seized.

[6] The Centre of Forensic Sciences (CFS) determined that the defendant’s gun was involved in the shooting at the parking garage where Mr. Abdullahi was wounded. The CFS also established that a second firearm was involved at the time of the shooting, which gives some credence to the defendant’s qualification of the facts that shots were fired at him.

[7] Mr. Abdullahi did not want anything to do with the prosecution in this case and did not provide a victim impact statement.

[8] Following the defendant’s initial arrest for possession of the loaded firearm he was released on bail with a term of house arrest. On September 12, 2020, he breached that term. His father and surety called the police to report that he was not home. The defendant was located and arrested a few days later. In November 2020 while still in custody he was charged with the additional offences involving the discharge of the firearm.

Position of the parties

[9] The Crown is seeking an 8-year penitentiary sentence less credit for pre-sentence custody. The defence advocates for a sentence of 5 years with the appropriate credit and mitigation for particularly harsh prison conditions. Both parties agree to the customary ancillary orders for this type of case.

Circumstances of the defendant

[10] The Court received a Pre-Sentence Report (PSR) to provide relevant background information. At the time of the offences the defendant was 19 years old. Born in Toronto, he is the youngest of 5 children. His parents are originally from Somalia. For the first 12 years of his life, the defendant lived in government subsidized housing. He recalls witnessing violence on a regular basis in his neighbourhood.

[11] Upon entering adolescence, the defendant came into conflict with his parents who believed his behaviour was inconsistent with their Somali culture and Islamic religious beliefs. When he was caught using illicit drugs, at age 16 years, his parents duped him into attending an institution in Somalia for youth with perceived behavioural issues. He was subjected to various forms of abuse at that residential institution. His head was forcibly shaved. His feet were shackled, and at times he was beaten with bamboo sticks while tied upside down to a tree. To escape he intentionally ingested peanuts to induce an allergic reaction, so that he would be sent to a hospital.

[12] When the hospital discharged him to a relative’s home, pending return to the institution, the defendant contacted Canadian consular staff who rescued and returned him to Canada. The consular staff verified his maltreatment and explained to the PSR writer that it is not unusual for young people to be chained to a bed 18 hours per day and beaten for speaking English or not properly reciting the Quran. The young people are given two meals a day and subjected to very poor living conditions.

[13] Upon returning to Toronto, the defendant’s relationship with his parents was best described as toxic. His parents believed sending him to Somalia would help but it had the opposite effect.

[14] A few months later, he was hit by a pick-up truck in July 2017, when walking across an intersection. Both of his legs were broken, and he required multiple surgeries. Metal rods were placed in his legs. The defendant experienced significant psychological and physical trauma from the accident. This led to increased tension with his parents, resulting in him leaving the family residence for a short time.

[15] The PSR noted that the defendant received his high school diploma in 2018. He graduated as an Ontario Scholar. He hopes to attend post-secondary education in Alberta to study electrical engineering.

[16] Given the challenges as a young person, his employment history and prospects are limited. He had a part-time job at a fast-food restaurant between 2016-2017. The Court was provided with a letter promising him future employment with a roofing company when he is eventually released from prison.

[17] Substance abuse was an ongoing issue for the defendant during his teenage years. It began with cannabis use during high school. Upon returning from Somalia, he was heavily using prescription cough syrup, Xanax, Percocet, and alcohol. The drug abuse worsened after the motor vehicle accident. He became dependent on Morphine, Hydromorphone and Percocet. He claims to have been under the influence of Percocet during the shooting incident.

[18] In addition to substance abuse, the defendant’s mental health challenges have been a constant concern. A 2019 psychiatric report noted that he has been significantly impacted by trauma suffered in his teenage years when his brain was still developing. He was diagnosed as experiencing severe post-traumatic symptoms, extreme levels of acute stress, severe generalized anxiety, and depression. Although he was taking medication for his mental health issues, he has been unable to take any since his incarceration.

[19] The Court finds that the defendant expressed genuine remorse to the PSR writer. He explained he is not the same person that he once was and has matured during his time in custody. This sincere expression of remorse was further developed in his 4-page letter of apology provided to the Court.

[20] The other materials filed on his behalf includes letters of reference from his siblings, parents, and an associate from a Somali Canadian community group. His social worker provided a letter outlining his physical and mental health struggles. There are also medical records and photographs documenting the hand injury he suffered in the Toronto South Detention Centre (TSDC). As well, prison lockdown records were submitted.

Legal Analysis

[21] In imposing the sentence on Mr. Afrah, I must take into account the following objectives in section 718 of the Criminal Code:

The fundamental purpose of sentencing is to protect society, and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate the offender from society, when necessary;

(d) to assist in rehabilitating the offender;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in the offender, and acknowledgment of the harm done to victims or to the community.

[22] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] Given the seriousness of gun crime, the offences before this court call for denunciation and deterrence as paramount considerations, although regard must be had for the importance of rehabilitation for a youthful adult first offender. Even when a custodial sentence is appropriate, it is a well-established principle of restraint for young adult first offenders that imprisonment in the penitentiary should be as short as possible and tailored to the individual circumstances of the offender: R v Priest, [1996] O.J. No. 3369 (C.A.) and R v Borde (2003), 63 O.R. (3d) 417 (C.A.)

[24] In support of his position the Crown relies upon the case of R v Baugh 2021 ONSC 8408. The youthful adult offender, with no prior record, was part of a group firing multiple shots at the occupants of a taxi. The victim was shot in the upper back. Forrestell J. determined that the range of sentence for Mr. Baugh, who plead guilty, was 6-10 years, while still acknowledging the accepted range of 7-11 years for serious gun related offences. A sentence in the middle range at 8 years would have been imposed, but given the harsh presentence custody, Justice Forrestell imposed a global sentence of 6 years.

[25] In the case of R v Larmond 2011 ONSC 7170, Justice Belobaba imposed a 7-year sentence, after trial, in circumstances where the victim was shot because of a disagreement. Mr. Larmond was a young adult with a minor criminal record. The shooting was neither planned nor premeditated.

[26] The cases indicate that the sentencing range of 7-11 years properly applies to an intentional shooting where someone was injured or there was an attempt to injure: see R v Jama 2021 ONSC 4871 at paras. 43-45, in which Schreck J. reviews the applicable caselaw.

[27] Sentencing remains a highly individualized process and each case turns on its facts and the unique circumstances of the offender. As such, R v. Henry, 2019 ONSC 6600 is a case where the offender with a serious criminal record received an 8-year sentence, for shooting and wounding the victim in the abdomen. The injury was life threatening. Mr. Henry was on 6 separate weapons prohibition orders at the time of the crime. In imposing sentence Justice Macdonnell emphasized the offender’s very difficult upbringing and positive steps towards rehabilitation during pre-sentence custody.

[28] Defence counsel for Mr. Afrah points to the facts of the case at bar and says it can be distinguished from Henry in advocating for a lesser sentence than that sought by the Crown.

The Sentence

[29] The aggravating factors are as follows:

(1) The discharge of a firearm resulted in injury to the victim although not life threatening and there are no details of any permanent effects. (2) Multiple shots were fired. (3) The shooting occurred in a public parking lot. (4) There appeared to be some planning and deliberation involved. (5) The firearm with a loaded high-capacity magazine was found in the defendant’s home.

[30] The mitigating factors include:

(1) The defendant intended to plead guilty relatively early in the process and has accepted responsibility for his actions. (2) He has no prior criminal record. (3) The defendant has expressed genuine remorse in the PSR and wrote a 4-page letter explaining his circumstances and regret. (4) At the time of the offences the defendant was a 19-year-old young adult. (5) The defendant was sent to Somalia as an adolescent, where he suffered serious physical, mental and emotional abuse for five to six weeks until he made good his escape. (6) His Somalian experience was followed by further suffering physically and mentally from a serious motor vehicle collision. (7) As a result of the trauma experienced, he was diagnosed with Post Traumatic Stress Disorder, as well as severe depression and anxiety.

[31] Separate and apart from the mitigating factors discussed thus far, there must be special mention of the trauma endured by the defendant because of an injury that occurred at the TSDC. Presently he claims to have limited use of his left hand.

[32] On or about February 27, 2021, while seated in the range area of the TSDC, the defendant cut the index finger of his left hand on the sharp underside of a metal stool. Defence counsel submitted that Mr. Afra sought hospital attention but was not taken seriously by the prison nurse, who believed it was a minor cut. He experienced extreme pain that night following the incident. When the doctor at the prison looked at the injury the next day, the defendant was immediately sent to the hospital. He required surgery because the cut went into the tendons of his finger.

[33] After the surgery it was necessary to change the dressing and have the area regularly cleaned with antibiotics. However, he was unable to get proper aftercare in the prison setting. The surgical area became infected, leading to significant painful swelling. He required further medical treatment to alleviate the infection. Due to prison restrictions, he was not allowed to use the handball provided for physiotherapy. He had to squeeze a folded shirt instead to strengthen his hand. It took a while for the swelling and infection to subside given the challenges of being incarcerated during the COVID-19 pandemic.

[34] In addition to the hand injury, the defendant had further difficulties in May 2022, when he was given seafood in his meal despite having a severe seafood allergy. After tasting the food, he realized it contained fish, which was verified by the prison staff. Prior to that incident, defence counsel submitted that in October 2020, her client unknowingly consumed seafood in prison. He went into anaphylactic shock and was hospitalized. The defendant is fearful and wary of the food that he eats in custody.

[35] Further mitigation is warranted for lockdown conditions during the defendant’s incarceration. The records from the TSDC show the defendant was the subject of full or partial lockdowns for 545 days. The conditions at TSDC have been described as notorious and were worse during the COVID-19 pandemic: see R v Jama, supra at para.19. When experiencing lockdowns, the defendant had little if any access to communication with his family, lawyer, and social worker. One of the only prison programs offered for him to complete was the Overdose Prevention Training.

[36] The defendant has indeed suffered while in prison, beyond what is acceptable in a society which prides itself in a correctional system that assumes a duty of care for inmates. The combination of his hand injury coupled with lockdowns deserves significant mitigation of sentence: see R v Marshall 2021 ONCA paras. 51-53 clarifying R v. Duncan 2016 ONCA 754.

[37] The Court has balanced the aggravating and mitigating factors, as well as the principles associated with gun crime and a young adult first offender. The appropriate sentence should reflect the harsh pre-sentence circumstances suffered by the defendant. What would normally be a sentence starting at 7 years will instead be a global sentence of 5 years.

[38] The parties are agreed that the defendant’s total presentence custody is 896 actual days, which on a 1.5 to 1 basis is 1344 enhanced days pursuant to s.719(3.1) of the Code. The 5 years (1825 days) less 1344 days leaves 481 days remaining for him to serve in jail.

[39] As for ancillary orders, the defendant will be subject to a s.109 Criminal Code firearms and weapons prohibition for life. And he is ordered pursuant to s.487.051 of the Code to provide a sample of his DNA for inclusion in the national databank.

Justice D. Maylor