Court File and Parties

Date: June 27, 2024 Informations: No. 22 - 2071, No. 22 - 2211 Court: ONTARIO COURT OF JUSTICE (at Hamilton, Ontario)

BETWEEN:

HIS MAJESTY THE KING

- and -

FAIZAN ALI

Counsel: Mr. S. Doherty for the Crown Ms. T. Mimnagh for the PPSC No one appearing for the offender Faizan Ali

Reasons for Sentences Imposed in absentia

NADEL, J.:

The Charges

[1] Faizan Ali was tried, by indictment, on two separate Informations arising out of a motor vehicle collision that occurred on May 17, 2021 at Hamilton. Information 22 – 2071 alleged a number of weapons offences along with two breaches of a release order. Information 22 – 2211 charged one count of possession of methamphetamine for the purposes of trafficking as a result of the 450.84 grams of methamphetamine found in the glovebox of a vehicle that was involved in the collision.

[2] Mr. Ali was defended at trial by Ms. Jordana Goldlist. By a written judgment dated November 30, 2023, I found Mr. Ali guilty on all counts. He remained out of custody to January 9, 2024, pending the preparation of a pre-sentence report. Through clerical inadvertence the request for a PSR was not received by the Probation Office in a timely way and Mr. Ali’s pre-sentence report was not prepared until February 13, 2024. As a result, Mr. Ali’s sentencing hearing was re-scheduled to take place on April 5, 2024.

[3] On April 5, 2024, Mr. Ali failed to appear. His counsel, Ms. Goldlist, was removed from the record as she had lost contact with her client. Evidence was tendered to show that Mr. Ali had cut off his electronic-monitoring ankle bracelet late in February of 2024 and I found that he absconded from this proceeding.

[4] Both Crowns wished to proceed with sentencing submissions. I allowed them to do so.

An Overview of the Facts

[5] On May 17, 2021, at about 11:00 p.m., Mr. Nasraw Osman died shortly after he crashed his motorcycle into the side of a Hyundai sedan which made a sudden U-Turn in front of him as both vehicles were travelling eastbound on Limeridge Road East. The sedan was a 2020 Hyundai Sonata that had been rented by Faizan Ali using a nominee in order to shield himself from any connection to that vehicle.

[6] Mr. Ali was captured on video recordings made at the car rental agency. Those recordings and the evidence of the employee who facilitated the rental proved that Mr. Ali was the actual renter of the vehicle.

[7] Mr. Ali and three other males were in the Hyundai when the accident occurred. Mr. Ali was the front seat passenger. After the collision the four men abandoned the vehicle.

[8] Mr. Osman had become trapped under the Hyundai after the crash. He was dragged by the driver for about 150 metres before the driver stopped and the four men occupying the Hyundai ran away.

[9] Because Mr. Nasraw Osman died in that crash, the police conducted an extensive search of the area where that crash occurred. During a K-9 search on May 18, 2021, the police located a loaded handgun in a wooded area adjacent to an elementary school situated in the general area of the accident. In addition, a homeowner in the same general area found a loaded handgun with an extended magazine on his lawn while going to work in the early morning on the same date.

[10] Both handguns were fully functional.

[11] The handgun that was found in the wooded area near the school was blue in colour. It was a Glock 43X 9x19. The magazine for it was full and there was one cartridge in the chamber. That meant that someone had racked the gun to put a bullet into the chamber to be ready to fire and then removed the magazine and added another round to fill that magazine to capacity.

[12] The handgun found on his lawn by the homeowner was a Glock, model 30 that used .45 calibre ammunition. It was fitted with an extended and illegal capacity magazine that was filled with 26 unspent cartridges. This extended magazine had a unique mark on it that made it easily identifiable.

[13] I found that these guns were dropped or abandoned by two of the men who fled from the Hyundai. I also found that Mr. Ali was in actual or constructive possession of those two weapons at the time of the collision based upon the evidence and the law that I reviewed in that judgment.

[14] Two loaded handgun magazines and other ammunition were also abandoned in the Hyundai. In addition, there was half a kilogram of methamphetamine in the glove compartment of the car. After the four men fled from the Hyundai approximately $1,000.00 in loose Canadian currency flew out of the driver’s door when it was opened by a man who came to give aid to Mr. Osman.

[12] The police also found two cellphones wedged into a portion of the front passenger seat of the Hyundai. Based upon the extracted contents of those two cellphones when taken together other facts adduced, I found that these two cellphones belonged to Mr. Ali.

[13] In short, among other things, I found that:

• he rented and controlled the Hyundai but attempted to hide that fact;
• he was the front passenger of the car when the collision occurred;
• he was in possession and control of the Hyundai and its contents, although he was not driving the vehicle when the collision occurred and, on the evidence adduced, he cannot be held to be criminally responsible for the collision;
• he arranged to have his nominee report the Hyundai stolen about an hour after the collision;
• the contents of his cellphones demonstrated that he was engaged in extensive discussions about illegal weaponry;
• prior to the collision, he was in possession of the unique extended gun magazine;
• that unique magazine was found seated into the Glock, model 30 that was left on a lawn as described above;
• his cellphone contained a photograph of the blue Glock 43X 9x19 found in the wooded area near a pool of vomit;
• he detailed the events of the collision and its aftermath in a text conversation found by an Ontario police service during an unrelated investigation [1]; and,
• he was in possession of the drugs found in the Hyundai’s glove compartment.

The Charges

[14] The charges on Information No. 22 – 2071 are:

Count 1 Unlicensed possession of a .45 calibre Glock model 30 pistol Contrary to s. 91(3)

Count 2 Unlicensed possession of a 9 mm Glock 43X 9x19 pistol Contrary to s. 91(3)

Count 3 Unlicensed possession of prohibited device, being an extended magazine Contrary to s. 92(3)

Count 4 Unauthorized or unlicensed possession of the .45 calibre Glock model 30 pistol together with readily accessible ammunition for it Contrary to s. 95(2)

Count 5 Unauthorized or unlicensed possession of the 9 mm Glock 43X 9x19 pistol Contrary to s. 95(2)

Count 6 Being the occupant of a motor vehicle knowing there was a handgun in it Contrary to s. 94(2)

Count 9 [2] Possessing a weapon contrary to a release order Contrary to s. 145(5)(a)

Count 10 Possessing drugs contrary to a release order Contrary to s. 145(5)(a)

[15] Information 22–2211 contains only one count: possession of a Schedule 1 substance, namely methamphetamine, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

R. v. Kienapple

[16] R. v. Kienapple, [1975] 1 S.C.R. 729 bars multiple convictions for the same delict. Mr. Doherty submits that counts one and two should be stayed pursuant to that principle. I agree and hereby do so.

The Submissions of the Crowns

[17] Both Mr. Doherty and Ms. Mimnagh highlighted the obviously aggravating features of these offences. Each sought a sentence in the six-year range and urged that these sentences be served consecutively.

Mr. Ali’s Criminal Record

[18] Mr. Ali’s criminal record, as contained in his pre-sentence report, consisted of the following entries:

Level & Location of Court	Offence(s)	Dispositions(s)
12 December 2022 -Hamilton, ON	Failed to Comply Release Order, s. 145(5)(a) CCC	Conditional discharge and 2 years probation
03 August 2023 – Toronto, ON	Failed to Comply Release Order, s. 145(5)(a) CCC	Suspended Sentence and 12 months non-reporting probation order

Mr. Ali’s Pre-sentence Report

[19] Mr. Ali was born on […], 2000, in Lahore, Pakistan. His parents were highly educated, and financially successful people and his older and younger sister are described as being cast from the same mold. He related a very privileged upbringing, but gang violence touched his family in a serious way and so his family emigrated to Canada in 2014.

[20] Despite his parents’ education and achievements, according to his mother “they went from a privileged lifestyle … to facing cultural, status, and financial shock” in Canada.

[21] Mr. Ali “expressed discomfort” to the PSR writer from the judgments of others due to the choices that he had made. His mother noted that “her son is the only one in the family who made “unfavourable choices” (sic) and she contrasted her son’s behaviour with the successes and education of his cousins.

[22] Mr. Ali described a very difficult time between grades 9 to 11 that including being bullied and seriously assaulted and otherwise victimized. He dropped out but returned at 18 and achieved his high school diploma but did not go on to post-secondary education, like the rest of his immediate family.

[23] Mr. Ali’s uncle and his parents described him in terms antithetical to the conduct and behaviour proved against him and I place little weight on those descriptions.

[24] Indeed, despite expressing “a determination to avoid repeating past mistakes, drawing insights from personal experiences and those of others” he absconded within two weeks of the completion of the PSR.

The Handgun Offences

[25] Mr. Doherty submitted that a sentence of six years would be fit for the weapons offences.

[26] It is beyond question that Mr. Ali’s s. 95 offences are at "true crime end of the s. 95 spectrum of offences" and therefore ought to be sanctioned by exemplary sentences that emphasize deterrence and denunciation. (See R. v. Nur, 2013 ONCA 677 at [206].)

[27] The combination of drugs and guns has been described as a toxic combination that poses a pernicious and persisting threat to public safety and the welfare of the community. (See R. v. Wong, 2012 ONCA 767 [3].)

[28] Six years was upheld in R. v. Bahir, 2012 ONCA 793, [2012] O.J. No. 5427 (C.A.), for the careless storage in a car of a ready-to-fire handgun. Bahir had a lengthy criminal record and four prior weapons prohibition orders. While six years was described as being at the high end of the range for that offence, the court held that it was not out of the range.

[29] Six years was upheld R. v. Omar, 2015 ONCA 207 despite guilty pleas, for, inter alia, possession of one loaded 357 Taurus revolver contrary to s. 95. Omar had a serious prior criminal record, including for the same offence. At paragraph [8], the court noted that “[t]he range of sentences is most significantly affected by growing judicial recognition of the reality of gun crime, as it should be.”

[30] In R. v. Mansingh, 2017 ONCA 68, a 43 month sentence for a first offender was upheld as fit. Several of the factors there have parallels to the instant facts, although the facts in Mansingh are, in my view, much less serious than the crimes committed by Mr. Ali. [4]

[31] Further assistance is available from Justice Code’s decision in R. v. Graham, 2018 ONSC 6817, which identifies three different cohorts of offenders. The first and third are briefly described in a footnote but they have no application here. [5] Mr. Ali falls into the second group, which Justice Code described in these terms:

38 More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s.95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. …

[32] In R. v. Ribble, 2019 ONCJ 640, Justice P.H.M. Agro sentenced Ribble to a global sentence of nine years for various drug and firearm offences. Ribble was 29 at the time of his commission of a slew of offences and 30 when he was sentenced. His prior adult sentences were comprised of time served dispositions followed by brief custodial terms never exceeding 30 days. The contraband for which he was sentenced included:

• a Bersa semi-automatic handgun;
• 12 Winchester .380 automatic bullets;
• 3 bundles of cash totalling $1520;
• 0.82 grams of cocaine;
• 16.35 grams of methamphetamine;
• 1520 millilitres of GHB;
• 5.26 grams of cannabis marijuana;
• 58 hydromorphone pills;
• a mixture of heroin, fentanyl, and caffeine in the amount of 15.91 grams and,
• 11.02 grams of fentanyl and caffeine.

[33] On his sentence appeal, 2021 ONCA 897, Ribble urged that his status as a drug addict should have been considered as more of a mitigating factor than it was. The Court disagreed and found Justice Agro’s sentence to have been reasonable. In my view, Mr. Ali’s crimes are more serious than Ribble’s.

[34] In R. v. McNichols, [2020] O.J. No. 4874 (SCO), Justice Akhtar sentenced McNichols for five counts relating to the possession of a loaded restricted firearm and ammunition, along with six counts of breaches of various court orders prohibiting him from the possession of firearms and weapons. He was 32 at sentencing and had a significant criminal record that included two earlier convictions involving the possession of a loaded firearm.

[35] Justice Akhtar provided useful thumbnails of a variety of precedents that were urged upon him by the parties. Rather than attempt to précis his précis I provide them in the next footnote. [6]

Possession for the Purposes of Trafficking in Methamphetamine

[36] More than 20 years ago the Court of Appeal noted that sentences of five to five and a half years were commonly meted out for possession of a substantial amount of cocaine for the purposes of trafficking, even though the offender pleaded guilty and had no prior record. (See R. v. Bajada, 2003 ONCA 15687 at paragraph [13]).

[37] Methamphetamine is at least as dangerous and as dangerously addictive as cocaine. Indeed, methamphetamine “presents every bit the kind of damage that was associated with heroin if in fact not more.” (See R. v. Nguyen, [2008] O.J. No. 6044 (OCJ). Additionally see R. v. Copeland, 2007 ONSC 37232 at [38] [7])

[38] The sentencing ranges for possession for the purposes of trafficking in drugs increase with the quantities being possessed for that purpose. The cases establish a range of roughly five to eight years for possession of half a kilogram of methamphetamine possessed for that purpose.

[39] Regrettably, examples abound. See:

• R. v. Wihnon, 2013 ONCJ 689. Justice G.F. Hearn imposed a six-year sentence for, inter alia, 426.79 grams of methamphetamine.
• R. v. Francis, [2012] O.J. No. 6627 (OCJ). Hearn J. imposed a six-year sentence for, inter alia, 330.55 grams of methamphetamine.
• R. v. Ho, [2011] O.J. No. 6672 (SCO). Justice Molloy imposed a four-year sentence for 115.40 grams of methamphetamine.
• R. v. Loy, [2011] O.J. No. 1924 (C.A.). A five-year sentence for 982 grams of methamphetamine was upheld on appeal.
• R. v. Nguyen, [2008] O.J. No. 6044 (OCJ). Bourque J. imposed a six-year sentence on a guilty plea for possession of more than one kilogram of methamphetamine.
• R. v. Villanueva, 2007 ONCJ 87. MacDonnell J. imposed a sentence of 5.5 years for 1.5 kilos.
• R. v. Liu, [2009] O.J. No. 2390 (OCJ). Bourque J. imposed a sentence of 6 years was imposed for, inter alia, 1kg of methamphetamine, (and for trafficking 33.5 grams).

[40] R. v. Copeland, 2007 ONSC 37232, [2007] O.J. No. 3390 (SCO) was a case involving 272.68 grams of crystal methamphetamine. At paragraph [37] Justice Spies adopted the position taken by MacDonnell J. that “… persons who deal in substantial quantities of hard drugs at the mid-level or higher of the trafficking hierarchy can expect to receive substantial penitentiary terms. …”

Mitigating Circumstances

[41] The major mitigating circumstance in Mr. Ali’s favour is his age. He was youthful when he committed these offences and remains youthful so that the prospect of rehabilitation remains open.

[42] In addition, his prior criminal record is minimal, and he has no cognate convictions.

[43] While not a mitigating circumstance per se, R. v. Q.B., 2003 ONCA 4187, [2003] O.J. No. 354 (C.A.) requires that I ought to impose the shortest possible sentence that will achieve the relevant sentencing objectives. [8]

Pre-sentence Custody

[44] Before obtaining a release Mr. Ali was detained from February 14, 2022 to July 14, 2022, a period of 151 actual days. Credited at 1.5 to 1, he is entitled to a pre-sentence custody credit of 226.5 days rounded up to 227 days.

Aggravating Circumstances

[45] Despite Mr. Ali’s relative youth, the principles of deterrence and denunciation remain the paramount sentencing objectives that must guide the sentences to be imposed.

[46] In R. v. Ferrigon, 2007 ONSC 16828, [2007] O.J. No. 1883 (SCO), Molloy J. stressed the dangers of handguns and the importance of denunciation and deterrence to attempt to control their spread.

25 Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada … a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[47] As Justice De Filippis noted in R. v. Kumi, [2023] O.J. No. 4802 (OCJ), the moral blameworthiness of an offender such as Mr. Ali is high. Mr. Ali possessed two loaded illegal handguns while prohibited by his release order from possessing weapons. Additionally, while specifically ordered not to possess drugs, he possessed a very large quantity of methamphetamine as well.

[48] It is further aggravating that he knew the police would be responding to the collision scene and so he ran and abandoned the blue Glock 43X 9x19 with a full loaded magazine and a round in the chamber very near an elementary school.

[49] In addition, these s. 95 offences were committed in conjunction with possession for the purposes of trafficking in 450.84 grams of methamphetamine.

[50] Justice Code has written a number of relatively recent sentencing judgments in cases involving guns combined with drug possession. At the high end, despite being a relatively young adult, albeit with a serious youth record, Justice Code found nine years for the weapons offences and 9 years for the drugs to be appropriate. He then reduced the total length of the sentences to 15 years to avoid the imposition of an unduly long and harsh sentence and to take cognizance of the principle of totality. (See R. v. Owusu, [2024] O.J. No. 753 (SCO).)

[51] As Owusu demonstrates, the drug offence is separate from the weapons offences and the failure to comply convictions. That drug offence requires a separate and consecutive punishment. It is a separate offence that requires sanctioning based upon separate public policy interests. Those interests include the fact that methamphetamine is an addictive, hard drug; that it causes significant damage to users and to society; that possessing it for the purposes of trafficking is a grave offence because of its association with violence; that the collateral consequences of this crime are manifold and finally, that it is a premeditated crime. (See R. v. Graham, 2018 ONSC 6817.)

[52] It is an aggravating feature of these offences that Mr. Ali was on a release order from Windsor when he committed these offences. That release precluded him from possessing drugs or weapons.

[53] It may be trite but nonetheless useful to note that everyone is entitled to be properly convicted and that Mr. Ali’s putting the Crown to the proof of its allegations is not an aggravating feature but rather the exercise of his constitutional rights. That said, I also observe that Mr. Ali’s lack of the mitigating effect of pleas of guilty will be manifest in the sentences to be imposed.

[54] Moreover, the commission of these offences in the face of a release order precluding them and the fact that he absconded from this proceeding speak to his prospects for rehabilitation, despite his youth.

The Fundamental Purpose of and the Principles of Sentencing

[55] The overarching duty of a sentencing judge is to draw upon all of the legitimate principles of sentencing to determine a "just and appropriate" sentence, which reflects the gravity of the offence committed and the moral blameworthiness of the offender.

[56] The fundamental purpose of and the principles of sentencing have been codified in the Criminal Code. The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[57] The fundamental principle found in s 718.1 requires that sentences must be proportionate to the gravity of the offences and proportionate to the degree of responsibility of the offender. At paragraphs [90] of R. v. Hamilton, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) Doherty J.A. said that:

[90] The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. …

[58] The maximum punishment for transgressing s. 95 (2) is 10 years. Additionally, I have noted several aggravating features of Mr. Ali’s s. 95 (2) offences above.

[59] Justice Doherty went on in Hamilton to explain that:

91 The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[60] I am of the view that the cumulative seriousness of these crimes requires denunciatory and deterrent sentences, albeit those sentences must be attenuated to comply with directive found in R. v. Q.B., 2003 ONCA 4187, [2003] O.J. No. 354 (C.A.). Nonetheless, these very serious crimes must not be overwhelmed by Q.B.’s directive.

[61] Denunciation and deterrence must still play a considerably emphasized place in the sanctioning process, although individual deterrence and rehabilitation are admittedly relevant and pressing considerations as Q.B. dictates.

[62] Mr. Ali is not a first offender. More significantly, his commission of these crimes while under a bail order are matters that are relevant to his background, character, and personal circumstances. In addition, the fact that he absconded is also relevant to his potential for rehabilitation.

[63] In addition, both the drug sentence and the sentences on the breaches of release order ought to be consecutive to each other and consecutive to the sentences to be imposed on the weapons counts.

[64] One final issue is how to determine totality. Should the Court add up separate sentences and see if they need moderation on the totality issue or should the court fix a fit total sentence and then apportion the sentences within that fit total sentence?

[65] In my view, while the approach to sentencing an offender for multiple offences varies among the provinces, (see R. v. Smith, 2011 ONCA 564, [2011] O.J. No, 3832 (C.A.)), in Ontario, R. v. Jewell, (1995), 1995 ONCA 1897, 83 O.A.C. 81 (C.A.) at paragraph [27], directs that a sentencing judge fix an appropriate global sentence first and then assign sentences for each individual offence and designate them concurrent or consecutive to fit within that global sentence.

[66] There is a range of consecutive sentences for the illegal possession of a handgun contrary to a prohibition order. That range can be as low as six months and as high as 2.5 years.

[67] A consecutive sentence at the low end of the range is appropriate as this was a first offence for this crime and the prohibition was contained in a bail order and not as a result of a s. 110 or s. 109 prohibition order.

[68] In properly applying the moderating effect of the Q.B. principle in cases of serious criminality it is still necessary to impose a significant penalty to achieve fitness. In essence, any shorter sentences for these offences will not reflect their gravity.

[69] The imposition of a sentence is an individualized exercise in which sentencing principles may need to be balanced and reconciled.

Discussion and Imposition of Sentence

[70] There are several mitigating features that I must pay special attention to:

• a consideration of the principle of totality;
• most significantly, the prospects for Mr. Ali’s rehabilitation given his age; and,
• as this will be his first period of incarceration in the penitentiary, the restraining influence of R. v. Q.B. (Q.B. was 18. Mr. Ali was almost 21.)

[71] That said, the principles of deterrence and denunciation must also be realized by the sentence that I must craft. The sentences that I must craft need to be proportionate to the gravity of the offences committed by Mr. Ali but also attuned to his unique circumstances.

[72] As Justice Doherty has noted, the imposition of a fit sentence can be as difficult a task as any face by a trial judge. It is trite that sentencing is not an exact science. It is an individualized exercise. Every case presents both the opportunity and the obligation to attempt to reconcile the tension between sometimes conflicting principles. In every case that tension must be recalibrated to arrive at a fit sentence as required by s. 718.1. That is what I have attempted to do here. (See R. v. Parranto, 2021 SCC 46 at paragraphs [10] to [12].)

[73] In addition to the s. 109 and primary DNA orders that these convictions require I impose the following sentences upon Faizan Ali based upon the approach noted in paragraph [65]:

Count 1 Unlicensed possession of a .45 calibre Glock model 30 pistol Contrary to s. 91(3) Conditionally stayed pursuant to Kienapple

Count 2 Unlicensed possession of a 9 mm Glock 43X 9x19 pistol Contrary to s. 91(3) Conditionally stayed pursuant to Kienapple

Count 3 Unlicensed possession of prohibited device, being an extended magazine Contrary to s. 92(3) 2 years concurrent to count 5

Count 4 Unauthorized or unlicensed possession of the .45 calibre Glock model 30 pistol together with readily accessible ammunition for it Contrary to s. 95(2) Five years concurrent to count 5

Count 5 Unauthorized or unlicensed possession of the 9 mm Glock 43X 9x19 pistol Contrary to s. 95(2) Five years

Count 6 Being the occupant of a motor vehicle knowing there was a handgun in it Contrary to s. 94(2) 2 years concurrent to count 5

Count 9 [9] Possessing a weapon contrary to a release order Contrary to s. 145(5)(a) 120 days of pre-sentence custody credit, plus one day concurrent to count 5

Count 10 Possessing drugs contrary to a release order Contrary to s. 145(5)(a) 31 days of pre-sentence custody credit, plus 135 days consecutive to count 5

Information 22 - 2211 Possession of methamphetamine for the purposes of trafficking Contrary to s. 5(2) of the CDSA 5 years consecutive to count 10 and to count 5

Released: June 27, 2024 J.S. Nadel (OCJ)

Footnotes

[1] I summarized the admissions made by Mr. Ali, who used the name Deezy, at paragraph [147] of my reasons for judgment, which I append here:

[147] Deezy texts Trench on May 18, 2021 at 1:32:51(UTC-4) and begins to tell Trench about the accident of May 17, 2021 in which Mr. Nasraw Osman died. He makes the following admissions to Trench:

• He killed, (“smoked”), a man by accident in a car crash in which the deceased crashed into their car.
• The man who died was stuck under the car, so they had to “leave” the car.
• Deezy believed that fingerprints were in the vehicle.
• He lost “three bids”.
• Additionally, he lost his phones.
• There were many witnesses about.
• It happened “last night” (i.e., May 17, 2021).
• Deezy said that he was not the driver.
• Deezy said that when he got away, he sat in a dumpster without a phone.
• Deezy said that he ran so much he was vomiting, (“yaking”), blood.
• Deezy sent Trench the link to a Hamilton Police Service announcement about the fatal crash that killed Mr. Osman.

[2] Counts 7 and 8, each of which alleged breaches of a release order, were withdrawn by the Crown before Mr. Ali was arraigned.

[3] 11 The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

12 These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, 2005 ONCA 30044.

13 The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing. …

[4] 21 The trial judge imposed an effective sentence of 43 months. While acknowledging that a penitentiary term was necessary, counsel submits that the trial judge erred in finding the appellant was engaged in commercial drug activity at the time he was in possession of the loaded firearm. The trial judge treated this as a significantly aggravating factor. The appellant accepted that he was trafficking in marihuana in the technical sense in that he was carrying marihuana to a friend. He denied that he was a drug dealer.

22 The trial judge found that the appellant was engaged in commercial drug trafficking, albeit at a low level. That finding was open on the evidence. The appellant was in possession of a large amount of cash and a loaded handgun. Both indicate that the appellant was in the business of selling drugs and was not merely delivering the drugs to a friend as a favour.

23 Counsel also submits that the trial judge failed to give adequate weight to the appellant's status of a young first offender.

24 The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender. We observe, as did the trial judge, that the appellant not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child.

25 The trial judge did not err in principle in the sentence he imposed. The sentence is not manifestly unfit. We cannot interfere.

[5] In the first cohort are youthful, well-situated first offenders with good prospects for rehabilitation, many of whom had the mitigating benefit of a guilty plea. The third cohort consists of recidivists who continue to possess illegal weapons in the face of weapons prohibition orders.

[6] 21 In R. v. Graham, 2018 ONSC 6817, Code J., conducting a review of the appropriate authorities, concluded that the range of sentences for a recidivist offender convicted of a firearms offence to be in the 8-10 year range. This certainly seems to be borne out by the cases: R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60 (8 years); R. v. J.G., [2005] O.J. No. 4599 (S.C.) (8 years); R. v. Alexander, 2012 ONSC 6117 (10 years); R. v. Dunkley, 2014 ONSC 3922 (10 years); R. v. Barton, 2017 ONSC 4039 (10 years).

22 In R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233 [Brown, C.A.], the recidivist offender pleaded guilty to possession of a loaded restricted firearm and breach of a lifetime firearms prohibition order. The Court of Appeal increased the sentence imposed by the trial judge to 8 years after a Crown appeal, finding that the judge had initially imposed an unfit sentence of 5 years and 6 months.

23 In R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307, a 25 year-old offender was convicted for a third firearms offence along with two breaches of a firearms prohibition order and failing to comply with a recognisance. He received an 8 year sentence which was upheld on appeal.

24 Finally, in J.G., the offender, 22 years of age, received 8 years for possession of loaded firearm and related charges including breach of a prohibition order and fail to comply with a recognisance. He was arrested as a result of police surveillance and a foot chase. His adult criminal record included prior convictions for possession of restricted firearm and possession of a firearm while prohibited.

25 On the other hand, the defence relies on a number of cases that fall between 7-9 year range.

26 In R. v. Brown, [2019] O.J. No. 2846 (S.C.), an offender who pleaded guilty to possession of a loaded firearm and breach of a prohibition order received 7 years after a police officer stopped the offender in his car and found a 9mm handgun in his waistband. The sentencing judge indicated that but for the presence of mitigating factors she would have imposed a nine year sentence.

27 In R. v. David, 2019 ONSC 3758, the judge imposed an 8 year sentence for a recidivist firearms offender found guilty of possession of loaded firearm offences and breach of a firearms prohibition order. The offender had a prior criminal record which included two prior firearms offences.

28 In R. v. Newell, [2012] O.J. No. 4014 (S.C), a 31-year old offender who had three prior convictions for firearms offences was given an an 8 and a half year sentence after being found with a loaded handgun after a traffic stop. He was also convicted of a breach of a firearms prohibition.

29 In R. v. Ferrigon, 2007 ONSC 16828, [2007] O.J. No. 1883 (S.C.), the 24 year old offender received 6 and a half years for possession of a loaded handgun and breach of prohibition orders after he ran from the police and was seen depositing a handgun in a window well. He had two prior convictions for firearms offences.

[7] 38 … The expressed intention of parliament in moving methamphetamine to Schedule I was so that it would be treated by the courts like cocaine. Certainly it should not be treated less severely than cocaine. On the evidence before me I have no difficulty in concluding that crystal meth is at least as harmful to the user as cocaine. In my view the position of the Crown that methamphetamine should be considered for the purpose of sentencing as seriously as cocaine is justified on the evidence before me.

[8] 36 Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault.

37 On the other hand, I agree with the trial judge that this case called for a penitentiary sentence notwithstanding the appellant's age. His very serious youth record, his failure to respond to other measures and his repeated violation of court orders indicated that specific deterrence would be an important objective. The string of offences, two involving use of a loaded handgun, required a lengthy sentence. These circumstances, however, had to be balanced against the appellant's age and his chaotic background as part of a dysfunctional family being raised in poverty by a mother who unfortunately had few parenting skills and suffered from a mental illness. There was also some reason for optimism about the appellant's chances for rehabilitation. The pre-sentence report indicates that while the appellant did not respond particularly well to community-based programmes, he did do well in a more structured environment.

[9] Counts 7 and 8, were withdrawn by the Crown at the time of arraignment.