ONTARIO COURT OF JUSTICE
DATE: 2025-02-21
COURT FILE No.: Toronto Region 23-48105030
BETWEEN:
His Majesty the King
— AND —
Abdul Malik Kamara
Before Justice Cidalia Faria
Heard on December 20, 2024 and January 10, 2025
Reasons for Sentence released on February 21, 2025
Scott O’Neill — counsel for the Crown
Melina Macchia — counsel for the accused Abdul Malik Kamara
Faria J.:
[1] After a trial, I found Abdul Malik Kamara guilty of possessing a loaded Glock 27 semi-automatic firearm on May 13, 2023. The serial number on the gun was defaced and he was on two s. 109 weapons prohibitions at the time.[1]
[2] This is his third conviction for possessing a loaded firearm. The parties agree as to what the range of sentence in this case is. The Crown recommends 9 years in the penitentiary, and the Defence recommends 6 years. Both parties filed material for my consideration. These are my reasons for sentence.
I. Facts
[3] On Saturday, May 13, 2023, at 5:21 p.m., Mr. Kamara was walking out of Fairview Mall with two juices in one hand and his cell phone in the other, when DC DaSilva, who was walking into the mall to get a juice himself, walked right by him. DC DaSilva, who knows Mr. Kamara, saw a bulge in Mr. Kamara’s right front jeans pocket, and identified the protruding firearm as a mini-Glock.
[4] DC DaSilva followed Mr. Kamara out of the mall. He contacted his Guns and Gangs team, and the team proceeded to conduct mobile surveillance of Mr. Kamara.
[5] Mr. Kamara drove his Ranger Rover to Kingston Rd. to pick up some food from the Twice as Nice restaurant and then left with an associate to an address on Pilot St. He was photographed at that address with the bulge still in his pocket. From there, Mr. Kamara drove to 1 Vendome where he was seen riding a bicycle through the pathways and a park, at times in the company of another man. He then drove to an address on Yonge St. where he picked up a passenger and headed downtown.
[6] Mr. Kamara, with two associates, a male and female, entered One Hotel on Wellington in downtown Toronto just after 10 p.m. He was arrested there after a significant struggle. In his right front jeans pocket was a loaded Glock 27 semi-automatic with a defaced serial number. He had been prohibited from possessing a firearm on December 5, 2016, and again on September 16, 2022.
II. Abdul Malik Kamara
[7] Mr. Kamara is about to turn 29 years old. He had just turned 27 when he committed the offences.
[8] He has a criminal record which starts with 4 infractions before a 2016 conviction for possessing a loaded firearm when he was 20 years old. He was sentenced to 22 months and 8 days in jail after credit for 52 days of pre-sentence custody for that first s.95 offence. In 2022, at the age of 26, he was again convicted of possessing a loaded firearm. He was sentenced to an 18-month Conditional Sentence Order (CSO) after credit of 8 months pre-sentence custody (Exhibit #1).
[9] Mr. Kamara’s 37-page Impact of Race and Culture Assessment (IRCA) prepared by Dr. Patrina Duhaney, highlights the socio-cultural factors that influenced Mr. Kamara’s involvement with the criminal justice system. It provides me with his detailed historical and personal social context as a Black man in Toronto (Exhibit 5). Though it had several inconsistencies, nonetheless, it was very helpful.[2]
[10] Mr. Kamara was born and raised in Toronto by his mother, an educated woman who suffers from a mental illness. Both his parents are Muslim, and he had some religious instruction. Both his parents are from Sierra Leone and came to Canada because of that long civil war, though he does not know when, and is unfamiliar with his history.
[11] His parents separated when he was very young although he does not know when. He lived with his father for a year as a child, which was difficult as his father was a stranger to him. He did not see his father until 2022 when they planned to meet, but his father passed away before that meeting could happen. He has two biological siblings, an older sister who has lived in France for over a decade and a younger brother. He is not particularly close to either of them, or to his numerous half siblings on this father’s side.
[12] Mr. Kamara has two daughters, an 8-year-old who lives with her mother Mekeda, and a 7-year-old with Tashanna Bartley, with whom he has had a relationship off and on for a decade. He considers Tashanna, and two childhood friends, Tefari and Anthony to be his family.
[13] Ms. Bartley describes Mr. Kamara as kind-hearted, generous, and hard-working. Their relationship has been an intermittent one, and he has been in custody for much of that time. She says he pays attention to their daughter. She speaks to Mr. Kamara regularly on the phone, visits him in jail, and plans to support him throughout.
[14] Venetia Giazous is Mr. Kamara’s godmother. She described Mr. Kamara as a happy child who grew up with her own child, Anthony, in the same community. He stayed with her often and for long periods of time while his mother was away on business trips. He is gentle and has helped her during her cancer diagnosis.
[15] Both women are concerned about Mr. Kamara’s mental health. Both women share narratives of Mr. Kamara’s difficult life. Both women confirm his involvement with police has always been negative and has had a negative impact on him.
[16] Mr. Kamara is physically healthy, and described his mental health to be as good as it could be. He first started drinking alcohol when he was 13 years old and continued to do so to the very day of the offences. He acknowledges he is dependant on alcohol and his use increases when difficult things happen.
[17] Mr. Kamara experienced racism throughout his life. As a child, he had friends whose parents did not permit their children to interact with him. In school, he felt he was academically evaluated by a different standard, and he was punished more harshly than white students. His mother sent him to schools outside his jurisdiction for a better education and French immersion, but he felt singled out and was often suspended. He went to 4 different schools from JK to grade 8 and felt the same way at each one. He described racism at each of the 3 high schools he attended which led to his skipping school by grade 9 and becoming “more interested in making money”, though he has only had one period of employment when he was 18. He had a more positive experience in the 3rd high school but indicated that there was a police officer and a student who harassed him there. He was one credit short from graduating. He invested a settlement he received from the Toronto Police Service for being victimized by them.
[18] Mr. Kamara grew up in Flemingdon Park, in a government-housing complex. He described observing drug trafficking and drug use, late night partying, prostitution, drive-by shootings, and people shot. He has 5 friends who died due to gun violence. Engaging in violence was a normalized lifestyle and even glorified. As he was not close to his family, his friends and this community is his family.
[19] He believes he has post-traumatic stress from the violence he has observed but has not sought counselling as he was taught not to discuss emotions, and counselling is stigmatized in his culture. He sustained both physical and sexual abuse growing up. In particular, he was assaulted by a police officer when he was arrested at 15 years old, and sustained a broken jaw. Six months later, Mr. Kamara was cut across the face coming out of a restaurant. He has survived multiple shooting incidents.
[20] These experiences, he states, are the reason that he lives in fear, is desensitized to violence, and carries a gun.
III. Positions
[21] The Crown submits the appropriate global sentence is 10 years jail to reflect denunciation and deterrence for a 3rd possession of a loaded firearm, reduced to 9 years to account for harsh in-custody conditions, Morris[3] factors, and the principle of totality.
[22] Counsel for Mr. Kamara submits a global sentence of 6 years minus credit for pre-sentence custody is appropriate. She emphasises Mr. Kamara’s blameworthiness is attenuated by his experience of anti-Black racism, his negative experiences with police, and the harsh conditions of his incarceration. She differentiates the cases the Crown relies on from the case at bar by stressing that Mr. Kamara’s offences are not associated with any other criminal behaviour.
IV. Legal Principles
[23] The criminal law is a system of values. Sentencing is meant to reflect and reinforce these basic values of our society. Therefore, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. Sections 718 to 718.2 of the Criminal Code guide a sentencing judge in this task.
[24] Fundamentally, every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[25] Sanctions should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
V. Analysis
[26] Aggravating, and mitigating circumstances must be considered, along with pre-sentence custody, harsh incarceration conditions, social context factors, and caselaw. Denunciation and deterrence are the primary applicable principles. Parity and totality principles also apply, as does the principle of rehabilitation.
Aggravating Factors
[27] The seven major aggravating factors are:
i. This is the third time Mr. Kamara has been convicted of possessing a loaded firearm.
ii. Mr. Kamara was serving a CSO for the same offence which is statutorily aggravating when he committed these offences.
iii. Whether the Glock was loaded or not, he carried it around with him in a busy shopping mall, when he went to a restaurant, and while visiting an associate.
iv. He was in possession of the loaded firearm in his car when he drove downtown to the One Hotel.
v. He was out past his 10 p.m. curfew when he committed these offences.
vi. He was carrying his loaded Glock in his pocket, ready to be fired, in a hotel bar in downtown Toronto, with plenty of people around.
vii. Mr. Kamara struggled and resisted his arrest. It took two officers over 7 minutes to get him under control. This resistance with a loaded firearm in his pocket increased the danger to himself, the officers, the patrons and the staff close by.
Mitigating Factors
[28] The two central mitigating factors are:
i. His experience of harsh incarceration conditions at the Toronto South Detention Centre (TSDC).
ii. His experience of anti-Black racism throughout his life.
[29] In addition:
i. He has completed the 16-week Black Employment Support Program with the Urban Rez Solutions Social Enterprise while in custody (Exhibit 7).
ii. The Reintegration Case Manager spoke highly of his participation, his insight, and his rehabilitation potential as he is committed to work with the program to better re-integrate into society after his release.
iii. He has a job offer with Hutsy Financial once he is released (Exhibit 4).
iv. He is involved with in his daughter’s life and assists both his mother and his godmother with their health conditions.
v. He has positive support in his partner, his godmother, and two of his childhood friends.
Pre-Sentence Custody – Conditional Sentence
[30] Mr. Kamara served the first 6 months of his conditional sentence on house arrest, from September 16, 2022 to March 15, 2023, and was serving the 12 month curfew portion of the sentence when he was arrested on May 13, 2023.
[31] Both parties agree that once Mr. Kamara was arrested, an allegation of breach of sentence should have been made. However, his conditional sentence supervisor never issued a warrant. The police never laid a charge. He never went before the judge who sentenced him to the CSO to decide what action to take, if any, on the alleged breach. Mr. Kamara also never elected to have a reverse onus bail hearing on these charges before the court.
[32] Therefore, there was no triggering event to suspend the running of his CSO pursuant to s.742.6(10).
[33] Section 742.6(12) states the running of the CSO continues on the detention of an offender under s. 515(6):
(12) A conditional sentence order referred to in subsection (1) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.
[34] As stated in R. v. Menezes, 2023 ONCA 838 at para 51:
Regardless of whether an offender is detained in custody while the opportunity to show cause remains open, or whether they are detained in custody after failing to obtain bail, for all intents and purposes it is on the strength of s. 515(6) that the accused is detained: Atkinson, at para. 20.
[35] Although there was no “order” detaining Mr. Kamara in custody, he acquiesced to his detention, and was detained.
[36] Section 742.7(1) does not apply to suspend the running of the CSO in this case because Mr. Kamara was not imprisoned to serve a sentence imposed for another offence.
[37] Both parties agree that the result, pursuant to Menezes, is that from May 13, 2023, when Mr. Kamara was arrested, to March 16, 2024, a period of 10 months and 2 days, Mr. Kamara was serving the remainder of his CSO in custody. This period is not pre-sentence custody attributable to the offences he is to be sentenced today.
Duncan[4] credit
[38] Both parties agree that the difficult conditions at the TSDC where Mr. Kamara has been in custody merit consideration.
[39] The Crown submits that he has taken these conditions into consideration in his position of 9 years, and has done so pursuant to the preferred method, that of a mitigating factor pursuant to R. v. Marshall, 2021 ONCA 344.
[40] The Defence submits I may quantify the mitigation due to its severity, which Marshall permits, and the Superior Court of Justice in Toronto has done numerous times,[5] as have I,[6] to address the specific, ongoing, and unacceptable conditions at the TSDC.
[41] Mr. Kamara deposed in his affidavit (Exhibit 3) that he has experienced significant lockdowns which restrict his showering, his exercise time, his contact with his loved ones, and his ability to care for his mother, all of which have negatively impacted his mental health. He states the conditions are unsanitary and have caused him rashes. He has required medical care for these rashes and his eyesight, and in both instances, he had to wait to be seen by a doctor.
[42] Jail is not the place from which Mr. Kamara can expect to assist his mother with her mental health needs. However, Mr. Kamara’s other complaints are troublesome. He had to wait over 3 months to see an ophthalmologist, and slightly less to see a doctor. Hygienic standards are difficult to maintain, and more so when lockdowns restrict laundry and showers which decreases cleanliness standards.
[43] Mr. Kamara appended a lockdown list provided by the TSDC from May 13, 2023 to October 29, 2024, to his affidavit. It reports on a period of 533 days, 10 months while he was serving sentence, and 7 months and 2 weeks while he was in pre-sentence custody.
- There were lockdowns on 130 days, or 24.3% of that time.
- Only 2 of the 130 lockdowns were not the result of “staff shortages”, and 3 provided no reason at all.
- Although the document begins with an explanation that a “partial” lockdown has a start and end time, only 31 of the noted partial lockdowns had an end time. The other 99 started at 8 a.m. but have no end time.
[44] The number of these lockdowns, and particularly, the reason for these lockdowns, demonstrates a persistent institutional disregard to the human resource requirements of running this jail. That is a choice that deprives inmates of liberty within the institution that, even pursuant to the policies of the institution, they are entitled to. These deprivations, imposed on a regular basis negatively impacts the mental health of those awaiting trial, and those serving their sentence, including Mr. Kamara.
[45] These conditions caused by personnel decisions warrant a deduction in sentence. I decline to quantify it in this case but do state that it is significant.
Social Context
[46] Mr. Kamara has been clearly negatively impacted by anti-Black racism while growing up and living in a marginalized community in Toronto. The racist acts of educators such the principal and the librarian limited his ability to succeed and best use his skills to his advantage. This has led to limited opportunities for legitimate employment. He appears to have received limited parenting. He experienced physical abuse at the hands of both parents. He is the victim of sexual abuse that was not recognized as such, and he received no support for this victimization as a child.
[47] His neighbourhood environment was a dangerous one. It was and is a community struggling with drug use to numb trauma, drug trafficking to avoid poverty, few positive male role models, particularly as fathers, and significant gun violence that causes death. Each of these in turn attract police attention, the type of attention that Mr. Kamara has been at the receiving end of. His victimization at a young age at the hands of police, which was not challenged by the Crown, has negatively impacted his negative perceptions of and his experience with police both in the short and long term. As he states, his fear of his community and police, his concern for his safety, and his desensitization to violence are the reasons why he carries a loaded gun.
[48] Normally, this social context would significantly attenuate Mr. Kamara’s moral blameworthiness. However, in this case, at this time, its weight is diminished for three reasons.
[49] First, Mr. Kamara received the benefit of restraint for his youthfulness and his limited ability to make choices about his environment when he was convicted at the age of 20 for possessing a loaded firearm. He was not sentenced to a penitentiary sentence, but rather, sentenced to reformatory period of 22 months. At that point, that sentence should have communicated to a young Mr. Kamara the message that possessing loaded firearm has severe consequences.
[50] Second, Mr. Kamara received a second chance. He was sentenced very leniently for possession of a loaded firearm when he was 26 years old with an 18-month CSO. It is clear by reading that sentencing transcript, (Exhibit 2), that the jurist was both uncomfortable with the joint submission, and not aware that it was Mr. Kamara’s second conviction for a loaded firearm.[7] That second sentence permitted Mr. Kamara an opportunity to seek counselling for his trauma, to move away from the dangerous environment, the people, and the police that had so negatively impacted his life and limited his choices. He was given the chance to start again.
[51] Thirdly, Mr. Kamara at the age of 27, while on this CSO, chose differently. Fully aware of the serious consequences of possessing a loaded firearm, he breached that CSO.
[52] Mr. Kamara repeatedly stated to the author of the IRCA that the area he grew up was dangerous, frightened him, and was heavily patrolled by police. He also told the author and his loved ones that he is afraid of the police. However, while on his CSO with an address in Vaughan Ontario, he deliberately drove on May 13, 2022 to that very neighbourhood. The neighbourhood he says is dangerous. The neighbourhood he says he is afraid of.
[53] From his Vaughan address, he would have to drive almost an hour to go to the Fairview Mall to get a juice, to visit an associate, and go to the Twice as Nice restaurant for chicken. Mr. Kamara then drove to the very Toronto Housing complex on Vendome where he grew up, where again, he states there is gun violence that has caused him trauma, to ride around in a bicycle on the paths and parks of the “hood” as he calls it.
[54] While true that Mr. Kamara has been traumatized by racism, he also has agency. He was not deterred by either of his previous sentences. He did not seek safety. Instead, he chose to go where he believes there is danger, with a firearm in his pocket. Then he drove to a totally different neighbourhood in downtown Toronto and walked into a hotel bar with a loaded Glock in his pocket ready to fire, bringing the danger with him.
[55] The mitigation of his Morris factors although relevant, and applicable, in this case, are of limited weight.
Caselaw
[56] Both the Crown and the Defence submitted numerous cases for my consideration. I have reviewed them all but will not refer to them all.
[57] Courts have plainly, and repeatedly found that the possession of illegal firearms in the City of Toronto warrants serious sanctions:
“There is no question our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms,” R. v. Danvers, 2005 ONCA 30044 at para. 77. (Emphasis mine)
“Our jurisdiction of Metro East has its own particular problem with gun violence. In these circumstances it is crucial that any sentence imposed send a strong message to our community that possession of firearms will not be tolerated, and that those who do so can expect real consequences.” R. v. Abubeker, 2011 ONCJ 337 at para. 8. (Emphasis mine)
“In the six years since Danvers was decided, the concern [over gun violence] is still unfortunately very much alive and unsatiated. If anything, an even stronger message needs to be sent that the possession of illegal firearms will simply not be tolerated.” R. v. Lambert, 2011 ONSC 3906 at para. 47.
[58] The Crown relied on R. v. Graham, 2018 ONSC 6817 to support his position for a 10-year jail sentence reduced to 9 years.
[59] Justice Code in that case refers to R. v. Hector, 2014 ONSC 1970, where Justice MacDonnell implicitly held that the caselaw indicated the appropriate total range of sentence for s. 95 recidivists who breach s. 109 orders to be 6 to 9 years jail (at para. 39).
[60] In R. v. Slack, 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.), the Court upheld a total sentence of 10 years, made up of 8 years for a s. 95 recidivist who also received a 2-year consecutive sentence for breach of the prohibition orders, (Graham at para. 39).
[61] Justice Code found that the range of sentence for s. 95 recidivists who breach s. 109 orders to be at the higher end, that of 8 to 10 years. He distinguished Mr. Hector from Mr. Graham by pointing out Mr. Hector had the firearm hidden in an air conditioner, rather than carrying it in public as Mr. Graham did at a bar and in a car (Graham at para. 40).
[62] In Justice Code’s view, a 6-year sentence is at the top end of the range for a first s.95 offence and at the bottom end of the range for a second s. 95 offence. He also adopts the view that the breach of two s. 109 orders should be consecutive to the sentence for the s. 95 offence (at para. 41). He sentenced Mr. Graham to 8 years and a year consecutive for the s. 109 breach.
[63] Though Justice Code clearly separates the sentence range for possession of the loaded firearm while on two prohibitions, from possession of cocaine among other offences that Mr. Graham was facing, the Defence in this case, emphasizes that Mr. Kamara’s offences are unrelated to any other criminality, and thus should be considered on the lower end of the range.
[64] Although Mr. Kamara’s offences are not related to other criminality, by the same token, they are not mitigated by any of the circumstances present in the cases the Defence relies on to support its 6-year recommendation.
[65] For instance, the offenders pled guilty in R. v. Warsame, 2022 ONSC 424 and R. v. Virgo, 2019 ONCJ. Mr. Jama had no prior conviction in R. v. Jama, 2021 ONSC 4871. It was only the second s. 95 offence for Mr. Hamilton in R. v. Hamilton, 2013 ONSC 3127.
[66] In fact, in this case, not only is there no mitigation for a guilty plea, but there is evidence of no insight into his offending conduct.
[67] Mr. Kamara insists he is the victim of harassment in this offence. Mr. Kamara describes the offence to the IRCA author as:
“the police had been following him throughout the day, although they claimed to have randomly encountered him at a mall, when they reported seeing a gun sticking out of his pocket. He stated that after leaving the mall, he returned to his community, visited a friend’s place, and then went to a restaurant, where was arrested nearly six hours later.”
[68] DC DaSilva testified he did not expect to see Mr. Kamara at the mall. The reason is now clear, Mr. Kamara was to be living in Vaughan while serving a conditional sentence. Mr. Kamara does give consideration to the fact he had a gun in his pocket while at the mall, at his friend’s place, at the restaurant, and it was loaded in his right-hand jeans pocket when he walked into the One Hotel bar past his curfew. He appears to give no consideration to his offending conduct.
[69] Though the principle of deterrence is a guiding principle, I am uncertain a jail sentence can deter Mr. Kamara from possessing a loaded firearm. Deterrence is applicable, but denunciation is the weightier principle in this case.
[70] The jump principle is applicable but attenuated by the fact that the CSO sentence was the result of a joint submission made under a misunderstanding of Mr. Kamara’s criminal history.
[71] In addition, though the Crown submitted that rehabilitation is lost on Mr. Kamara, I disagree. Mr. Kamara is still young. He has two daughters to care for. He has several people in his life who care for him and support him. He is intelligent. He can be focused as demonstrated by his completion of programming while in custody. He can stay away from trouble as submitted by his counsel that he is misconduct free time while in custody. Mr. Kamara can decide to turn his rehabilitation potential into reality if he uses all the resources at his disposal and commits to the task.
Sentence
[72] A global sentence of 10 years is appropriate for all the offences, particularly as the firearm had a defaced serial number and Mr. Kamara violated two s. 109 orders. However, it will be reduced to global 8 years in the penitentiary to account for Duncan credit for lockdowns and to reflect the principle of totality, and to a limited extent the applicable social context factors.
[73] The sentence will be apportioned as follows:
- Count 1: s. 95(1) Possession of a loaded firearm, 7 years minus PSC[8]
- Count 5: s. 108(1)(b) Possession a firearm with its serial number defaced, 2 years concurrent to count 1.
- Count 8: s. 117.01(1) Possession of a firearm while prohibited by a s. 109 order, 1 year jail consecutive to count 1.
- Count 9: s. 117.01(1) Possession of a firearm while prohibited by a s. 109 order, 1 year in jail concurrent to count 8.
[74] I will also make a DNA order, yet another s. 109 prohibiting the possession of a firearm for life and waive the victim fine surcharge as he is unable to pay.
Released: February 21, 2025
Signed: Justice Cidalia C.G. Faria
Footnotes
[1] R. v. Kamara, 2024 ONCJ 406
[2] For instance, on page 3 it states Mr. Kamara was born in Sierra Leone, but on page 10 identifies the hospital he was born in Toronto. On page 10 it both states his 15-year-old brother currently resides with his father, but his father passed away 3 years ago in 2022. On page 10 it states Mr. Kamara has no recollection of his father being around him as a child, but at page 17 it states Mr. Kamara said that “prior to his parents’ separation, his father hit him regularly.”
[3] R. v. Morris, 2021 ONCA 680
[4] R. v. Duncan, 2016 ONCA 754
[5] R. v. Shaikh, 2024 ONSC 774; R. v. Ahmed, 2021 ONSC 8157; R. v. Hassan, 2023 ONSC 5040
[6] R. v. Ndayihezagiye, 2024 ONCJ 457
[7] Exhibit 2: page 13, lines 15-20
[8] March 17, 2024 to February 21, 2025 is 341 days. 341 days x 1.5 = 511.5 days, or 17 months. 7 years is 84 months, 84 – 17 months = 67 months to serve, or just under 5.5 years.