ONTARIO COURT OF JUSTICE
DATE: 2025-07-17
COURT FILE No.: Toronto Region
4810 998 23 48110017
B E T W E E N :
HIS MAJESTY THE KING
— AND —
KAMRAN MUGHAL
Before Justice Beverly A. Brown
Heard on March 24, 2025
Reasons for Sentence released on July 17, 2025
Jason Gorda ........................................................................................ counsel for the Crown
Yonatan Eshetu ............................................................................................ for the defendant
BROWN, B.A., J.:
BACKGROUND
[1] On May 30, 2024, Mr. Mughal entered a guilty plea to one count on a 13 count information, pertaining to numerous offences in June 2023, in relation to a trafficking in motor vehicle investigation. He was represented by counsel. At the outset, the Crown put on the record in open court that it would proceed on a guilty plea on count 2, but read in all of the facts on the other counts. Defence counsel did a guilty plea enquiry prior to the guilty plea. The court also did a guilty plea enquiry. The Crown proceeded summarily. The guilty plea related to possession of a stolen vehicle valued at over $5,000.00 relating to single offence of possession of a stolen vehicle valued at over $5,000. Additional facts were read into the record, for the purpose of sentence. Those additional facts related to a police investigation related to trafficking in stolen vehicles, which was believed to be related to the rear of 1830 Ellesmere Road, and loaded shipping containers. Surveillance was conducted at that location on June 13 and June 14, of 2023. At that time, Mr. Mughal was observed to be present during the loading of three unidentified vehicles and a fourth identified vehicle, into a shipping container. The identified vehicle was a Toyota Highlander, with a New York licence plate, reported stolen on June 12, 2023 by a renter. The owner of the vehicle was Enterprise Rent-a-Car. This was the vehicle that was the subject of the guilty plea.
[2] Facts were read in related to the additional dates of surveillance and the additional charges, for the purpose of sentence related to the subject count. In summary various containers were driven away from this location on various dates when Mr. Mughal was observed to be present, and later left the address. The police were unable to get any identifying numbers from the shipping containers, but the police were able to get the licence plate of the tractor pulling the shipping container.
[3] On June 16, 2023, more observations were made at this address. Mr. Mughal was again present during the time that there were two unidentified vehicles loaded into another shipping container, and two identified stolen vehicles were also loaded into a shipping container. Police identified a Toyota Highlander reported stolen out of York region June 12, by the person leasing it, and a second Toyota Highlander reported stolen June 15 by the owner of the vehicle. The police were able to obtain the shipping container identifier numbers for both crates, which were driven away from this address. It was flagged for the CBSA, to give the numbers for the shipping containers.
[4] Following that, on June 20, 2023, police observed Mr. Mughal again present at 1830 Ellesmere, during the loading of two stolen vehicles into a shipping container. The first vehicle was a Lexus RX 350, reported stolen on June 18 by the owner, and a second Lexus RX 350, reported stolen on June 18. The police obtained the shipping container identifier number and licence plate of the tractor hauling it, which drove away on Ellesmere. The police then flagged this container number to the CBSA.
[5] On June 23, 2023, more observations were made at this same address on Ellesmere. At that time, Mr. Mughal was again present during the loading of two unidentified stolen vehicles into a shipping container. Police obtained the shipping container identifying number, and it was driven away from the Ellesmere location. The container was flagged for the CBSA.
[6] Again, on June 29, 2023, police surveillance continued at this location. Once again, Mr. Mughal was present as there were two unidentified vehicles present, being loaded into another shipping container. That container was also driven away from the address. Mr. Mughal then walked away. The police were unable to get any vehicle identifiers for container. It was later identified on video and flagged for the CBSA. Police continued surveillance at the location. Mr. Mughal again returned to the location at 1830 Ellesmere, when two unidentified vehicles were loaded into another shipping container, and he subsequently began to leave on foot as the container was driven away. The police stopped the container, arrested Mr. Mughal and the driver of the truck hauling the shipping container.
[7] During a search at the time of the arrest of Mr. Mughal, of the stopped container, police located stolen licence plates in the rear of a Toyota Highlander from a vehicle which had been reported stolen June 21, 2023 from Ajax, by its owner. There was also a Toyota Highlander reported stolen on May 7, 2023. There was also in the container a stolen 2022 Lexus RX 350, reported stolen from Brampton by its owner on June 27. In the search incident to arrest of Mr. Mughal, he had on his person a key to a flatbed tow truck which it seems was not the truck that had been driven and stopped by the police. He was released on an undertaking.
[8] After all of the facts were read in, the court specifically asked if the facts on the guilty plea were admitted, and defence counsel admitted the facts on behalf of Mr. Mughal. The court also specifically addressed defence counsel as to whether there was an agreement to read in all of the facts, and the defence advised the court that was the case. As indicated, the facts were admitted and the court made a finding of guilt.
[9] The court was advised of the joint submission of a conditional sentence of 6 months in duration, for sentence. From that early stage the court alerted counsel to its concern that the joint submission was too lenient, in light of all of the facts. The court requested additional information and submissions from counsel arising from the court’s consideration of R. v. Anthony-Cook, 2016 SCC 43. The court ordered a pre sentence report. This report was prepared after some delay. The court also sought further information, including facts relating to the losses sustained and any recovery of vehicles, together with victim impact statements which had not been sought by the Crown, as required by the Criminal Code. There was another appearance upon which the Crown did not provide that information.
[10] On December 5, 2024, the court issued an order pursuant to s. 723 of the Criminal Code, arising from the court’s need to address the test in Anthony-Cook as to whether the proposed joint submission was insufficient, and would be contrary to the public interest and bring the administration of justice into disrepute. After the court advised the party of this order, defence counsel advised the court that it would seek to bring an application to set aside the guilty plea. The court noted its concern that as a judge sitting in this court, it was impossible to not be exposed to information as to the prevalence of this type of crime in the community, and the enormous nature of the problem of vehicle theft in the community. The order issued by the court related to the need to obtain information to put before the court as to the nature of vehicle theft in the community. This order is reported at R. v. Mughal, 2024 ONCJ 714. The Crown subsequently provided to the court statistics, which are noted below as exhibits, in response to this order.
[11] As noted, on the same date, defence counsel revealed its intention to bring an application to set aside the guilty plea. This application was heard, and the decision of the court was reserved. On February 28, 2025, given the position of both parties, the court maintained the guilty plea. However, arising from the extensive defence evidence, including the affidavit of Mr. Mughal that he never intended to agree to the additional facts for the purpose of sentence, which was not the subject of cross-examination or challenge by the Crown, the court ruled that it would not be able to consider those additional facts. The court left open for the Crown the opportunity to call evidence which would need to be proven, beyond a reasonable doubt, for the additional counts. The Crown has chosen to call no additional evidence, and essentially to have Mr. Mughal sentenced only in relation to the subject count for the guilty plea, and not consider the additional facts and charges. No additional facts are to be considered by this court, notwithstanding the prior reading into the record of those facts.
[12] The case was put over to March 24, 2025 for sentence and further submissions by counsel were made. On that date the court sought to have a short remand for sentence to imposed. However, the court was advised by defence counsel that since it was Ramadan, and Mr. Mughal is Muslim, he wished to have the sentence adjourned until after Ramadan, after April 11, 2025. Accordingly, the court adjourned sentence to April 24, 2025.
[13] On April 24, 2025, the court was advised by defence counsel that Mr. Mughal had been shot and that he was unable to attend court that date. The case was put over for sentence.
[14] Mr. Mughal suffered a series of gunshot wounds and he was admitted to Sunnybrook Health Sciences Center on March 31, 2025. He remained in hospital until April 5, 2025, under the care of Dr. Matthew Guttman, trauma surgeon. While the nature of those injuries are somewhat unclear to this court based upon the information provided to the court, the court has determined he had trauma surgery, and that the injuries including the following:
- Gunshot wound to left anterior chest wall, and T3 and T4 compression fractures
- Left knee gunshot wound, and fracture secondary to the gunshot wound
- Right knee gunshot wound and fracture
- Right leg below knee gunshot wound
[15] Mr. Mughal has had ongoing physiotherapy, orthopedic surgery, fracture clinic and pain specialty treatment, together with social work and psychiatry treatment which is ongoing. He has completed his occupational therapy.
[16] Given the prior ruling, the court will now impose a sentence upon Mr. Mughal for count 2, in relation to his attendance at the lot on June 13, 2023, and being in possession of this stolen vehicle which was the property of Enterprise Rent-a-Car. The court will not consider in any way the additional days of surveillance and the additional stolen vehicles put in shipping containers and removed from the lot, given the position of the parties and the ruling of the court following the application to set aside the guilty plea.
THE FACTS
A. Circumstances of the offence
[17] As set out above, the court will consider the following facts relating to count 2, which is the guilty plea entered in this case. There was a police investigation related to trafficking in stolen vehicles, which was believed to be related to the rear of 1830 Ellesmere Road, and loaded shipping containers. Surveillance was conducted at that location on June 13 of 2023. At that time, Mr. Mughal was observed to be present during the loading of a vehicle into a shipping container. The identified vehicle was a Toyota Highlander, with a New York licence plate, reported stolen on June 12, 2023 by a renter. The owner of the vehicle was Enterprise Rent-a-Car. A container with this stolen vehicle inside was driven away by a tractor trailer from this location, Mr. Mughal was observed to leave the address. The police were unable to get any identifying numbers from the shipping container, but were able to get the licence plate of the tractor pulling the shipping container.
[18] The defence takes the position that Mr. Mughal was a “middle man”, not involved in stealing the vehicle, and that he did not control what happened after the vehicle was loaded into a shipping container. His role was to move the vehicle into the shipping container.
B. Circumstances of the Offender
[19] The pre sentence report prepared for Mr. Mughal in the fall of 2024 is helpful. Mr. Mughal has no prior criminal record. He is single, a Canadian citizen, and he was born March 8, 1995. Accordingly he is currently 30 years of age. He has no dependents. He lives with his parents and two younger siblings. Two older siblings currently live independently. His parents are devout Muslims who raised their family following Islamic principles. Mr. Mughal is not indigenous.
[20] As a child, Mr. Mughal had a stutter. He was the subject of teasing by his siblings, and at school. It was difficult for others to understand him and they ridiculed him. He sometimes responded to this by violence. In 2008 or 2009, arising from difficulties getting along with his siblings, his parents placed him in a group home, and following that he went to a foster home. His parents visited him once a month when he was in the group home. After a 3 month initial adjustment period he described his time there in positive terms. After 8 or 9 months in the foster home, he ran away as he missed his family. After he took a program dealing with anger management in July 2011 he moved back to live with his family.
[21] Mr. Mughal spoke about his parents in a favourable manner. He has a closer relationship with his mother, and the relationship with his father has improved over time. No one in his family is aware of the fact he is charged with this offence. He worries that he may be evicted and that his relationship with his parents might be permanently damaged if they find out about this criminal charge. He was not in a relationship and his parents have indicated their desire that he have an arranged marriage.
[22] Mr. Mughal did not complete high school. He is two credits short of getting a high school diploma. He has taken English as a second language classes. He attended an adult learning centre, and then Centennial College for a one year auto body repair techniques program. He is currently receiving financial support through Ontario Works. Currently he is working as an apprentice electrician. He has worked in that position on and off for five years. He has had other types of employment in the past.
[23] Substance abuse is a problem for Mr. Mughal according to his pre sentence report. He has been drinking since he was 15 or 16 years of age, and currently consumes a Mickey (375 ml.) of vodka or tequila every other day. He also drinks cough syrup, and prefers that to alcohol. His parents are unaware that he consumes alcohol or has consumed drugs. In the past he consumed cocaine, opioids and MDMA. He still smokes marihuana every other day. He indicated a willingness to attend for counselling for this issue if ordered by the court. The author of the pre sentence report noted that Mr. Mughal might benefit from a mental health assessment to address any issues from his childhood.
[24] As it relates to the offence, Mr. Mughal stated that he is very sorry for his behaviour. He said he tried to take a short cut and it didn’t work out. He said he will never make the same mistake again. It appears that he does not have a lot of friends. He attends the mosque regularly and religion is a big part of his life. He does not have any physical health issues. Mr. Mughal did not provide any collateral source information for preparation of the pre sentence report. The victim advised the author of the pre sentence report that he has had a significant increase in his insurance because of the incident. It appears at least from the pre sentence report that there was an additional business loss which arose from the contents in the vehicle being stolen. The court notes that this is an offence of possession and not theft of the vehicle.
[25] Defence counsel has obtained a GPS assessment which confirms that Mr. Mughal is suitable for consideration of electronic monitoring in the event that is ordered as part of a conditional sentence.
C. Impact on victim and/or community
[26] There was no victim impact statement submitted by the Crown in this case. There is no doubt that the offence of theft of motor vehicles has become a very serious issue in this community, as set out below in the statistics described below.
LEGAL PARAMETERS
[27] Punishment for the offence of stolen property over $5,000, where the Crown proceeded summarily as in this case, is set out in s. 787 of the Criminal Code. The maximum punishment is a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
POSITIONS OF CROWN AND DEFENCE ON SENTENCE
[28] The Crown and defence maintain a joint submission put before the court is appropriate in this case. They have submitted that a conditional sentence, six months in length, with the first three months being a house arrest term, and the remaining three months being a curfew term, together with other conditions is appropriate. There is also a submission that there be a term of probation to follow the conditional sentence.
MITIGATING AND AGGRAVATING FACTORS
[29] An important mitigating factor is that Mr. Mughal has entered a guilty plea, and that he has no prior criminal record. He has also indicated his remorse. He is thirty years of age. Counsel have not referred to any aggravating factors in this case.
SENTENCING PRINCIPLES – ANALYSIS
[30] The court bears in mind guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64. In that judgment, the Court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work.
[31] In 2010, the SCC noted in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43, that "[n]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."
[32] Sentencing is highly individualized, see R. v. Suter, 2018 SCC 34. As the court stated in para. 4:
A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the [page 507] Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.
[33] In 2021, The Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, [2021] SCJ No. 46, in the majority judgment at para 10, held that proportionality is the organizing principle for the court in imposing a fair, fit and principled sentence. Proportionality is the fundamental principle. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and the unique circumstances of each case. Parity and individualization are important, yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender, as set out in para. 12.
[34] The principle of proportionality is also codified in the Criminal Code, which states that the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see s. 718.1 of the Criminal Code).
[35] Further the court bears in mind that 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 objectives of denunciation, deterrence (both generally and specifically for the offender), separation of the offenders from society where necessary, rehabilitation, to provide reparation for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community (see s. 718 of the Criminal Code). The court bears in mind any applicable sentencing principles as set out in s. 718.2, and as well the principles of parity, totality and judicial restraint in considering a sentence of deprivation of liberty or imprisonment, as set out in s. 718.2 (b) through (e). The emphasis of the court in considering those various objectives depends on the nature of the offence, and the circumstances of an offender.
Nature of Offence – The problem of vehicle theft in Toronto
[36] As noted above, this case was part of a police investigation into the theft and trafficking of stolen motor vehicles. It has become a problem of great notoriety in our community, as this court has seen as a front line judge dealing with these cases on a regular basis.
[37] In response to the court’s Order to the Crown to provide the court with information as to the nature of vehicle theft in the community, the Crown has tendered exhibits which this court considers regarding this offence in 2023. As it relates to Toronto, the court has been provided with the following information:
The number of vehicles stolen in Toronto, as provided by the Hold Up unit of the Toronto Police Service, has increased dramatically from 2020 to 2023. The court also sought information regarding the average number of vehicles stolen per day, and per hour, together with the number of recovered vehicles. The information provided was as follows:
| Year | Total Stolen | Average Vehicles Stolen per day | Average Vehicles Stolen per hour | Recovered over year |
|---|---|---|---|---|
| 2020 | 5,734 | 15.7 | 0.65 | 2,738 |
| 2021 | 6,420 | 17.6 | 0.73 | 2,865 |
| 2022 | 9,472 | 26 | 1.08 | 4,296 |
| 2023 | 11,829 | 32.4 | 1.35 | 6,028 |
[38] Over this period of time, each year the problem of vehicle theft has increased. While the police have had some success in increasing the rate of recovery of stolen vehicles, from an average of 47.75% recovery in 2020, to a high of 50.1% in 2023, there is no doubt that this is a very challenging type of crime to solve and obtain recovery. The statistics from 2024, following the date of the offence in this case, has shown a slight decrease in the nature of this crime, with a total of 8,593 vehicles stolen, being an average of 23.5 per day, 0.98 per hour, with an overall recovery of 4,750 vehicles, resulting in a recovery rate of approximately 55.3%.
[39] There is no doubt that the problem of vehicle theft has become an epidemic in this community, one which has resulted in huge property losses suffered by the community, whether insurance companies and potentially vehicle owners as well. It is a cost that is borne by the community for the costly losses. Offenders who are involved in the theft and trafficking of vehicles should, in the court’s consideration of the appropriate sentence for the nature of the offence, be held to account for this in receiving a proportionate sentence for this crime.
[40] The data from the Toronto Police Service did not include a value of the vehicles stolen, but the Toronto Police Service used an average Canadian new vehicle price of $66,422, from 2024, not adjusted by year. The figures above could be used to calculate the total loss from these thefts and recoveries for each of the above years, based on a 2024 average price.
[41] The Toronto Police Service has engaged in a response to this very serious crime. The information provided indicated that starting in 2022, the Toronto Police Service recognized the considerable increase in the amount of vehicle crimes affecting the residents of Toronto. In June of 2022, the Toronto Police Service’s Hold Up Squad launched a dedicated unit to deal with these crimes. This sub unit of the Hold Up squad was eventually amalgamated into the Provincial Carjacking Task Force which ran from September 2023 until March of 2024. This robust unit required a staffing of 60 people and included numerous vehicles, computers, police radios, overtime budgets and administrative supplies. An interim carjacking task force ran in Toronto between March of 2024 and June of 2024. In June of 2024, the Toronto Police Hold Up Squad expanded its mandate and took all auto related crimes. This required an increase to staffing, budget and administrative tasks. The police service did not release the amount of money required to finance this police work. It has resulted in an increased workload for members of Hold Up, and all the internal services that support their investigations such as Forensic Identification Services.
[42] The Toronto Police Service advised that York Regional Police and Peel Regional Police have also had to expand their offices to deal with the increase in auto related occurrences.
[43] The Toronto Police Service advised that in August of 2024, the Province of Ontario purchased 5 new helicopters for the Greater Toronto Area and Ottawa, at a cost of $134 Million, to in part combat auto crimes.
[44] In response to the court’s query as to the police investigations into multiple vehicle thefts, and parties charged involved at the level of organizing the schemes of stealing vehicles, moving them to other locations, and transporting them to other parts of Canada and outside Canada to other countries, the court has been advised that these investigations and prosecutions are currently at their infancy, and that many of the cases are presently before the courts.
[45] There is no doubt that this type of crime has cause a huge loss to our community and occasioned a response by police services and the provincial government, which has required spending a great deal of money to respond to the needs of enforcement, investigation and prosecution for these crimes.
Joint Submission
[46] A critical factor for this court relates to the joint submission of counsel put before the court. The seminal Supreme Court of Canada case dealing with joint submissions of counsel is R. v. Anthony-Cook, 2016 SCC 43.
[47] As noted at the outset of the court’s consideration of the issues, in paras 1 and 2, Moldaver, J. stated for the court:
(1) … Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they are essential. Properly conducted, they permit the system to function smoothly and efficiently.
(2) Joint submissions on sentence — that is, when Crown and defence counsel agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty — are a subset of resolution discussions.[1] They are both an accepted and acceptable means of plea resolution. They occur every day in courtrooms across this country and they are vital to the efficient operation of the criminal justice system. As this Court said in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, not only do joint submissions “help to resolve the vast majority of criminal cases in Canada”, but “in doing so, [they] contribute to a fair and efficient criminal justice system” (para. 47)
[48] There is no doubt that when counsel put before the court a joint submission, a trial judge is not to determine what a fit sentence would be and then impose that sentence instead of the joint submission. A trial judge is not obliged to go along with a joint submission. However, a trial judge, as stated in para 32 of Anthony Cook, should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. A joint submission should not be rejected lightly. The court stated, at para 34:
(34)… Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason…
[49] The court also considers the subsequent Supreme Court of Canada case of R v Nahanee, 2022 SCC 37, [2022] SCJ No. 37. At the Court of Appeal level, the court considers the Ontario Court of Appeal cases of R. v. Myles, [2017] O.J. NO. 2311; R. v. Augustine, [2019] O.J. No. 826 (C.A.); R. v. Fuller, 2020 ONCA 115; and R. v. Blake-Samuels, 2021 ONCA 77.
[50] The court identified its concern with the joint submission at the time of the guilty plea and submissions of counsel as to sentence. At that time, the court’s concern arose from the extensive additional facts which were read into the record, to be considered as aggravating for the imposition of a proportionate sentence for this offender, and this offence. That triggered the Order of the court to have the Crown obtain the additional information set out above, and ultimately the defence application to set aside the guilty plea. While the court did not set aside the guilty plea, the court carefully considered the evidentiary record of the applicant regarding the understanding of Mr. Mughal at the time of the guilty plea, and his direction throughout that additional facts were not to be admitted. Ultimately the court ruled that based upon the evidence in that application, the court would not consider the additional facts, leaving open for the Crown the potential procedure of proving any additional facts it sought to rely upon as aggravating for sentence. The Crown has chosen to not avail itself of that procedure, and accordingly the offence under consideration relates solely to the one vehicle on the one date, which formed the basis of the guilty plea.
Characteristics of offender
[51] Mr. Mughal is a first time offender, 30 years of age. The principle of judicial restraint as set out in s. 718.2 of the Criminal Code is important. The court considers the combination of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 together with the prior Ontario Court of Appeal decision in R. v. Priest, together with R. v. Stein, 15 C.C.C. (2d) 376, at p. 377 and R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras 32 to 34. It is clear that the court must exercise restraint for a first offender, and in particular all sanctions apart from incarceration. Where incarceration is imposed, it should be as short as possible and tailored to the individual circumstances of the accused, and also in light of the need for rehabilitation.
[52] The court would also note that currently Mr. Mughal is recovering from very significant injures he has sustained when he was the victim of gunshots, while in the community. That is now an additional factor for this court to consider in the imposition of sentence as it relates to the impact of any sentence imposed upon him. Currently the court is advised that he is not generally mobile, he has not been able to walk freely for quite some time. Today he is appearing remotely, on zoom, given his inability to travel to court.
Conditional sentence
[53] As set out above, the Crown and defence have jointly submitted that a conditional sentence is appropriate in this case. The court considers the requirements of s. 742.1 of the Criminal Code. The sentence under consideration does not exceed two years, and is not subject to a minimum term of imprisonment. Mr. Mughal has not been charged with breaching any terms of bail in this case.
[54] A key question is whether a conditional sentence would satisfy the fundamental purpose, principles and objectives of sentencing, as set out in ss. 718 to 718.2 of the Criminal Code, for this offence and this offender. Courts have been clear that in some cases, a conditional sentence may satisfy the principles of denunciation and deterrence; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras 102 and 107, R. v. Wismayer (1997), 33 O.R. (3d) 225 (C.A.). As noted by Justice Doherty in R. v. Killam, [1999] O.J. No. 4289 (C.A.), a conditional sentence does not, generally speaking, have the same denunciatory effect as a period of imprisonment; incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.
[55] In Proulx, at para. 96, the Supreme Court specifically considered the principle and objective of judicial restraint, pursuant to s. 718.2 (d), that is to say, that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. However, the court stated that this principle, is of course, not solely determinative, but involves a more comprehensive consideration. As stated in that paragraph, “a determination of when less restrictive sanctions are "appropriate" and alternatives to incarceration "reasonable" in the circumstances requires a consideration of the other principles of sentencing set out in ss. 718 to 718.2. So this is but one of the principles and objectives to consider. The court must have regard to both the seriousness of the offence and the offender’s degree of responsibility.
Sentence imposed
[56] In this case, the joint submission and the principles outlined in Anthony-Cook play a key role in the court’s consideration of the appropriate sentence for this offender and for this offence. The court considers whether the joint submission of a conditional sentence of six months duration, the first half of which is house arrest with some exceptions, and the last half of which is a period of curfew with very limited exceptions, to be followed by a period of 2 years probation, would bring the administration of justice into disrepute or is otherwise contrary to the public interest. Would reasonable and informed persons, aware of the relevant circumstances, including the circumstances of this involving one isolated offence, committed by an offender with no prior criminal record and various mitigating circumstances outlined in the pre sentence report, believe that the proper functioning of the justice system had broken down if a six month conditional sentence with GPS monitoring, to be followed by a period of probation were imposed as sentence for this case? The court finds that this high threshold is not met in this case, given the nature of the modification of the facts after the application, and the subsequent very significant gunshot wounds and concurrent injuries that he has recently sustained while in the community awaiting sentence.
[57] Accordingly, this court imposes a six month conditional sentence, with GPS monitoring for the whole period. The first three months of the conditional sentence will involve house arrest, with limited exceptions which the court will outline in court, orally. The last three months of the conditional sentence will involve a curfew, with even more limited exceptions. This will be followed by a period of 2 years probation, with terms including reporting to a probation officer within three business days and thereafter as required, to reside at an address approved of by probation, to attending for assessments and counselling for substance dependency and mental health issues, and to sign releases to monitor those appointments, to seek employment or attend job training programs as directed by probation, to not attend or be within 100 meters of 1830 Ellesmere Road, Toronto, to not be in possession of any conveyance (which includes any vehicle) not lawfully registered in your own legal name, and to not associate with persons known to the offender to have a criminal record.
[58] The victim fine shall not be imposed for this offence, in light of the fact that Mr. Mughal is still recovering from his extensive gunshot wounds and is not currently working.
Released: July 17, 2025
Signed: Justice Beverly A. Brown