CITATION: R. v. Gobire, 2013 ONSC 3073
COURT FILE NO.: CR-12-70000199-0000
DATE: 20130528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AHMED GOBIRE
Jennifer Armstrong, for the Crown
Deniz Sarikaya, for the Accused
HEARD: May 24, 2013
GOLDSTEIN J.
REASONS FOR SENTENCING
OVERVIEW
[1] Mr. Gobire was found guilty of offences involving possession of a loaded handgun after a short trial before me. Convictions will be entered on Counts 1, 3, and 6. The remainder of the counts will be stayed pursuant to the rule in R. v Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The most serious offence is that of carrying a loaded firearm contrary to s. 95(1) of the Criminal Code.
THE FACTS
(a) Circumstances of the offence
[2] On October 13, 2010, Detective Constable Harris of the Toronto Police Service received a tip from a confidential informant regarding Mr. Gobire. The confidential informant indicated that Mr. Gobire was in possession of a silver semi-automatic handgun. On October 14, 2010, Detective Constable Harris obtained a warrant to search Mr. Gobire’s residence at 25 Elm Street, Apartment 1205, in Toronto. The warrant authorized the police to enter and search the apartment between 2:30 p.m. and 7:30 p.m. At 4:00 p.m., three officers went to 25 Elm Street to conduct surveillance in anticipation of the execution of the warrant. It was anticipated that the warrant would be executed when members of the Emergency Task Force and other officers were in place.
[3] At 5:51 p.m., while conducting surveillance on the 12th floor of 25 Elm Street, police officers observed Mr. Gobire leaving apartment 1205. The officers, who were in plainclothes, announced themselves as police and detained him. Mr. Gobire was taken to the stairwell and cuffed. One officer asked Mr. Gobire if he had a weapon. Mr. Gobire said that he did. He was patted down and a loaded firearm was seized. Mr. Gobire was arrested. He later testified that he carried the weapon for self-defence and that he took it with him in crowded public places in downtown Toronto.
(b) Circumstances of the offender
[4] Mr. Gobire is 23 years old. He was 21 at the time of the offences. He was living with his mother when he was arrested, and continued to reside with her while he was on bail for these offences. He has no contact with his father, who resides in Egypt. He has a criminal record consisting of two convictions for fail to comply with recognizance. He received intermittent sentences and probation on both occasions. Prior to his arrest he had no criminal record.
[5] I understand from his counsel that Mr. Gobire is currently attending George Brown College and has almost completed a general arts and sciences degree.
[6] I am aware that Mr. Gobire has a daughter but it is unclear to me the extent of his involvement in her life. He tells me that he is a loving father and I accept that. I have reviewed letters submitted to the court by Mr. Gobire’s friends and neighbours. They are very supportive and positive. His neighbour wrote a letter attesting to a change for the better in Mr. Gobire’s lifestyle since his arrest. Mr. Sarikaya asserts that Mr. Gobire has never been a gang member and there is no evidence to suggest otherwise.
[7] I accept that Mr. Gobire has taken positive steps in his life since his arrest by attending school and finding new and more suitable friends. I did notice during the trial that several of his friends attended to support him.
(c) Impact on the victim and the community
[8] The impact of firearms offences on the community are obvious. The City of Toronto has been plagued by firefights. There have been numerous innocents who have been killed or injured, of which the Eaton Centre food court and Dundas Square boxing day shootings are the most notorious. Illegal handguns are a plague. Society’s attitude towards illegal guns and gun violence is reflected in the mandatory minimums enacted by Parliament and the lengthy sentences imposed by the Courts.
LEGAL PARAMETERS
[9] Count 1, carrying a concealed weapon contrary to s. 90(1) of the Criminal Code, carries a maximum sentence of 5 years. Count 3, possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, carries a mandatory minimum of three years for a first offence and a maximum of ten years. Count 6, careless storage of a firearm, carries a maximum sentence of ten years.
POSITIONS OF THE CROWN AND DEFENSE
[10] The Crown’s position is that Mr. Gobire should be sentenced to a period of incarceration of five to six years in the penitentiary. The Crown points to Mr. Gobire’s breaches of recognizance while on bail, as well as the most significant aggravating factor, the fact that Mr. Gobire carried his loaded handgun wherever he went, including into very crowded public spaces such as the Eaton Centre.
[11] The defence position is that Mr. Gobire should serve only the mandatory minimum, with credit for the 14 days that he has already spent in custody. Defense counsel points to Mr. Gobire’s youth, his efforts to straighten himself out since his arrest, and his supportive friends and family.
CASE LAW
[12] Cases sentencing offenders who possess firearms tend to emphasize general and specific deterrence. In R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707 (C.A.) the Court of Appeal noted that despite cooperation with the police and no indication of criminal activity at the time of arrest, the offender was moving about in the community with “a fully loaded lethal weapon at the ready”. The Court further noted:
14 … Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence, and protection of the public.
[13] In that case, the Court of Appeal overturned a sentence of five years and six months imprisonment. The offender had a lengthy criminal record, was in Canada illegally, and breached an already existing firearms prohibition order. The Court increased the sentence to 7 years and six months on the possession of a restricted firearm offence, with six months of pre-trial custody to his credit.
[14] The Crown drew my attention to R. v. Johnson, 2013 ONCA 177, [2013] O.J. No. 1308 (C.A.) where the Court of Appeal upheld a sentence of 7 ½ years on firearms offences, including a second offence contrary to s. 95(1) of the Criminal Code. The offender also breached several weapons prohibitions, which attracted consecutive sentences. The aggravating factors in that case make it distinguishable on the facts from this one, although the Court of Appeal did note that the trial judge correctly found that the appropriate range of sentence is five to ten years. In that case the offender faced a minimum five-year sentence. I conclude from that case that the lower end of the range for a first offender in Mr. Gobire’s position is below five years.
[15] In R. v. Abdullahi, 2012 ONSC 5502 (Sup.Ct.) the offender was convicted of firearms offences including one under s. 95(1) of the Criminal Code. He was also subject to a previous weapons prohibition under s. 109(1) of the Criminal Code. He had a serious criminal record and admitted that he was associated with a street gang. Justice Quigley noted that the notorious Eaton Centre and Danzig Street shoot-outs had occurred less than four months prior to sentencing Mr. Abdullahi. In imposing a sentence of six years, with credit for pre-trial custody, Quigley J. included a four-year sentence for the s. 95(1) conviction was the absolute minimum appropriate in the circumstances.
[16] In R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 (Sup.Ct.) the offender was arrested during the execution of a search warrant. He had a loaded handgun in his personal possession. The serial number had been defaced. The police also recovered crack cocaine from the premises. The offender had no criminal record. Strathy J. (as he then was) imposed a sentence of three years.
[17] In R. v. Smickle, 2012 ONSC 602, [2012] O.J. No. 612, 110 O.R. (3d), 280 C.C.C. (3d) 365 (Sup.Ct.) Molloy J. held that the mandatory three year minimum sentence for a conviction contrary to s. 95(1) of the Criminal Code was unconstitutional. That decision has been appealed but not yet decided. Although counsel did not refer me to Smickle, there is no suggestion in this case that the mandatory minimum is grossly disproportionate in those circumstances.
[18] Prior to Smickle, Code J. reviewed the constitutionality of the legislation in R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878, 275 C.C.C. (3d) 330 (Sup.Ct.). Nur was seen discarding a loaded handgun outside a community centre. He was a young man who had no criminal record and exemplary family support. I do not need to extensively analyze the constitutional part of Code J.’s decision for the purposes of this case, but ultimately he determined that s. 95(1) of the Criminal Code did not violate either s. 12 or s. 15 of the Canadian Charter of Rights and Freedoms. He did hold that the two year “gap” between the one-year mandatory minimum when the Crown elected to proceed by summary conviction and the three-year mandatory minimum where the Crown elected to proceed by indictment could breach the rights of a small number of people, but since Nur was not one of them he had no standing to make the argument. Of more immediate significance here, Code J. reviewed the pre-2008 and the limited post-2008 sentencing precedents to determine a fit sentence. He concluded, after his analysis, that a sentence of forty months was appropriate.
[19] In R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90 the Supreme Court of Canada considered the constitutionality of the four-year mandatory minimum sentence for criminal negligence causing death with a firearm. In that case, Arbour J. stated:
75 To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code: Wust (S.C.C.), supra, at para. 22. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.
[20] In my view, after a review of the case law, the appropriate range of sentence for a youthful offender who carries around a loaded firearm in downtown Toronto and has violated his bail is 4 to 6 years.
MITIGATING AND AGGRAVATING FACTORS
[21] The most important aggravating factor in this case is the possession of a loaded firearm by Mr. Gobire in the waistband of his pants while he goes about his daily business in downtown Toronto. Mr. Gobire testified that he carried his firearm with him almost everywhere. Although he stated that he carried his firearm for protection, in fact he has it exactly backwards: it is not Mr. Gobire who needs protection; rather, society needs protection from those who carry loaded weapons around.
[22] The Crown suggested that it is also an aggravating factor that Mr. Gobire used the firearm for the protection of his drug business. That suggestion was put to Mr. Gobire in cross-examination. He admitted that had sold marijuana but denied that he used the firearm for the specific purpose of protecting his drug business. It is certainly a reasonable inference that a person who sells drugs and has a gun uses the gun for that purpose. Certainly courts have constantly emphasized the connection between drugs and violence, particularly gun violence and there is no question that the link exists. That said, in the absence of proof beyond a reasonable doubt I decline to use the connection as a specific aggravating factor in sentencing Mr. Gobire: R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.). In my view, it is aggravating enough that Mr. Gobire carried the firearm in a concealed manner in the heart of the city. It is hard to imagine a more aggravating factor short of actually using the weapon in a public place.
[23] The fact that Mr. Gobire breached the conditions of his bail on two occasions and received jail sentences is an aggravating factor.
[24] The mitigating factors are Mr. Gobire’s youth and his apparent desire to change his ways. I accept his counsel’s submission that he has been attending school and has ditched his old friends and made new, more appropriate friends since his arrest. The letters that I have seen and his friends in the courtroom are proof enough of that.
[25] Mr. Gobire expressed remorse to me and apologized for his actions. Perhaps more importantly, he apologized to his mother for his actions. Although acknowledging that Mr. Gobire did not plead guilty and therefore does not obtain the benefit that might otherwise accrue if there were a guilty plea, his counsel pointed out that Mr. Gobire only contested the Crown’s case on the basis of a Charter motion and otherwise admitted possession and control of the firearm. I observed Mr. Gobire’s apology carefully and I accept that he is remorseful. I acknowledge that he admitted the elements of the offence, but he could hardly have done otherwise given that the police found him in possession of the firearm.
PRINCIPLES OF SENTENCING
[26] The fundamental principle of sentencing set out in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles are set out in s. 718.2 of the Criminal Code. To summarize, they are:
• Sentences should be increased or reduced to account for aggravating and mitigating factors, including those aggravating factors set out in s. 718.2(a);
• Similar sentences should be imposed for similar offences on similar offenders in similar circumstances;
• Consecutive sentences should reflect the principle of totality, meaning that they are not unduly harsh or long;
• Less restrictive sanctions than imprisonment should be considered where it is appropriate;
• All sanctions other than imprisonment should be considered, with particular attention to the circumstances of aboriginal offenders.
[27] In the case of gun crimes, the need for denunciation and general deterrence are particularly relevant, as the Court of Appeal noted in Brown. I adopt Quigley J.’s comment from Abdullahi:
24 In cases of gun crime like this, with their increasing prevalence and the failure of sentences that have been imposed in recent years to achieve the desired objective of reducing gun crime, the need to remove offenders like this one from our streets and from our society by imposing exemplary sentences meant to deter others is paramount.
ANCILLARY ORDERS
[28] A weapons prohibition pursuant to s. 109(2) of the Criminal Code will be issued. An offence contrary to s. 95(1) of the Criminal Code is a secondary designated offence under s. 487.04 of the Criminal Code. As a secondary designated offence the Crown must make an application to take a DNA sample from an offender before the Court may issue an order. A review of s. 487.051(3) makes it clear that Parliament intended to give sentencing judges a discretion regarding a DNA order for secondary designated offences. The section reads:
487.051 (3) …In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
[29] In my view, the particular words of the section mean that Parliament intended that imposing a DNA order for a secondary designated offence should be more than just routine. A simple request by the Crown in the absence of evidence or a justification arising out of the evidence heard at trial is not enough. Given the emphasis placed on the privacy and security of an offender by Parliament, and the mandatory reasons for making the order, I decline to do so in this case. I have seen nothing in the circumstances of the offence to justify one.
FINAL DECISION
[30] There is an inherent tension in any sentencing process. A judge must balance the need to protect the public, denounce crime, and deter others from similar offences against the need to rehabilitate the particular offender and shape him for re-integration into society and, hopefully, a productive life after he has paid his debt. That is why sentencing is an individualized process where individual circumstances must be carefully considered.
[31] I have very carefully considered all of the mitigating and aggravating factors present here. I am very mindful that Mr. Gobire has expressed remorse and is a very young man. In my view, he falls at the lower end of the sentencing range of four to six years that I have described. Given the aggravating and mitigating factors as I have considered them, and the range set out by the courts, the appropriate sentence in this matter is just over four years. In light of 14 days of pre-trial custody, he will be sentenced to four years.
R. F. Goldstein J.
Released: May 28, 2013
CITATION: R. v. Gobire, 2013 ONSC 3073
COURT FILE NO.: CR-12-70000199-0000
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
AHMED GOBIRE
Defendant
REASONS FOR JUDGMENT
R. F. Goldstein J.
Released: May 28, 2013