ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10970
DATE: 2013/12/18

B E T W E E N:

HER MAJESTY THE QUEEN

James Spangenberg, for the Crown

• and -

SLIMAN HUSAINI

Pamela Munn, for the offender

HEARD: December 2, 2013

LEACH J. (ORALLY)

REASONS FOR SENTENCE

Introduction

[1] On April 29, 2013, following a six-day trial in December of 2012, I found the defendant Sliman Husaini guilty of a number of firearm-related offences.

[2] In particular, although Mr Husaini was found guilty in relation to all 14 counts set forth in the indictment, application of the principles emphasized by the Supreme Court of Canada in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, supplemented by agreed submissions of the parties, resulted in counts 1 through 6 inclusive of the indictment being conditionally stayed, while convictions originally were entered in relation to counts 7 through 14 inclusive of the indictment.

[3] During the course of submissions on sentencing, (made on December 2, 2013), the parties nevertheless agreed that, in addition to the counts formally stayed on April 29, 2013, count 13, (one of two counts relating to a violation of s.109 of the Criminal Code, arising from the same temporal incident), also should have been stayed. On a nunc pro tunc basis, the originally entered conviction on count 13 was vacated and that count stayed as well.

[4] In the result, Mr Husaini has been convicted of the following seven firearm-related offences under the Criminal Code of Canada:

• Two counts of unauthorized possession of a firearm, (namely two handguns), contrary to s.91(3);

• One count of unauthorized firearm possession in a motor vehicle, contrary to s.94(2);

• Two counts of unauthorized possession of a loaded prohibited firearm, contrary to s.95(2);

• One count of possessing a firearm knowing it had been obtained by the commission of an offence, contrary to s.96(2); and

• One count of possessing a firearm while prohibited from doing so by court order, made pursuant to s.109 of the Criminal Code, contrary to s.117.01(3).

[5] Following the convictions on April 29, 2013, this matter initially was adjourned to a sentencing hearing on June 27, 2013, to allow for preparation of a pre-sentence report directed pursuant to s.721, and further anticipated filings by the parties.

[6] However, that hearing then was subject to a number of further adjournments. That was done at the request of the defendant or with the defendant’s consent for a number of reasons; e.g., to facilitate review of the pre-sentence report with Mr Husaini, to file further material, and so that all concerned would have the benefit of the Court of Appeal’s expected decisions concerning the constitutional validity of the mandatory minimum sentence provisions of s.95 of the Criminal Code; (decisions eventually released on November 12, 2013).

[7] As noted above, submissions on sentencing were received on December 2, 2013. The matter then was adjourned to today for imposition of sentence and delivery of my associated reasons.

Circumstances of the offence

[8] The underlying circumstances and facts giving rise to the aforesaid convictions were set forth and detailed in my reasons delivered on April 29, 2013, which have since been reported: R. v. Husaini, [2013] O.J. No. 1936 (S.C.J.).

[9] I therefore will not replicate those details exhaustively now, but do have regard to them in their entirety, and not just to those particular matters referenced or highlighted in these reasons.

[10] For present purposes, the circumstances giving rise to the convictions now before me include the following:

• In the early morning hours of Sunday, June 26, 2011, a police traffic stop of a vehicle occupied by three young men, (including Mr Husaini in the front passenger seat), led to the discovery of two unauthorized and concealed handguns, both of which were loaded and ready to fire, and one of which was stolen.

• The police stopped the vehicle shortly before 3:00am. to check on the sobriety of its driver, after observing a number of erratic movements along a major commercial thoroughfare in the south of London, prior to an abrupt turn on to a residential side street.

• The driver was not intoxicated. However, it was discovered that the vehicle’s rear seat passenger was present in apparent violation of bail release conditions of a recognizance, relating to a firearms investigation. That passenger’s refusal to exit the vehicle voluntarily, and receipt of further information, prompted a search of the vehicle. That initial search detected, at the scene of the traffic stop, the existence of one handgun concealed in the console between the driver’s seat and front passenger seat. A more detailed search of the vehicle, after its removal to a police facility, then led to discovery of a second handgun concealed in the same improvised gun compartment. That later search also confirmed that both handguns were readily capable of being exposed and accessed by lifting, with “very little effort”, a piece of plastic molding on the console between the vehicle’s two front seats.

• Apart from the two handguns and associated ammunition, no drugs, stolen property or other evidence of crime were found in the vehicle.

• Undisputed evidence provided by the vehicle’s driver, supported in part by a statement given by Mr Husaini, indicated that the vehicle arrived at the area of the police observations and traffic stop after being driven there directly from a restaurant in downtown London.

• At the outset of trial, the parties confirmed numerous admissions; e.g., relating to the nature of the two concealed handguns and their operational and loaded status, the fact that one of them was stolen, and that Mr Husaini was properly under a weapons prohibition order, pursuant to s.109 of the Criminal Code, at the relevant time.

• At trial, the central disputed issue was whether the Crown had proven, beyond a reasonable doubt, that Mr Husaini had possession, knowledge and/or control of the guns, in the sense required, at the relevant time. For the reasons detailed in my ruling on April 29, 2013, I found that the Crown had met that onus, resulting in the convictions.

[11] My current task is to determine the appropriate sentence Mr Husaini should receive in relation to these various convictions and, if and as necessary, go on to determine the extent to which Husaini should receive credit for time already spent in custody, (a further matter in respect of which I received competing submissions from counsel).

Circumstances of the offender

[12] The personal circumstances of Mr Husaini are outlined in a s.721 pre-sentence report, noted above, and include the following:

• Mr Husaini, currently 24 but turning 25 next week, was born in Afghanistan, the second of three children. He unfortunately was exposed to extreme violence at a very early age. Most notably, when Mr Husaini was just four years old, his father was killed in the presence of the three children in an incident involving local warlords. This triggered an extended period of victimization and relocation for Mr Husaini’s mother and her children, who escaped to Pakistan with few possessions when Mr Husaini was approximately 7 years old. He was pulled from school and put to work at the age of 9, to help support the financing of basic necessities. When Mr Husaini was approximately 10 years old, the family was admitted to Canada with refugee status. While the rest of his family became Canadian citizens, Mr Husaini currently maintains only permanent resident status in Canada.

• For the balance of his formative years, Mr Husaini’s mother, described as a hard-working disciplinarian, who has never had any conflict with the law, provided Mr Husaini and his siblings with a good home.

• Mr Husaini nevertheless struggled with school, (in part because of language difficulties and bullying), and was expelled in grade 9 due to truancy and misbehavior. He has since made efforts, so far unsuccessful, to complete a secondary school diploma through adult education centres.

• He struggled without success to obtain legitimate forms of gainful employment, securing positions of manual labour and telemarketing that, by his own admission, have left him without any real viable work experience. He experiences depression, along with feelings of rejection and underachievement.

• He remains single, with no dependents, and indicates not really having a group of friends. He acknowledges that past friends have had a negative influence on his life. He has been living a high risk lifestyle, including involvement with drugs for financial gain, and related charges and convictions that he attributes to peer and financial pressures. He indicates that he now has moved away from past consumption of alcohol and frequent marijuana use, and apparently minimizes his past conduct.

• Mr Husaini now indicates that he hopes to regain some sort of normality as soon as possible, once these charges are behind him, by displaying a current willingness to “make amends” and possibly upgrade his education.

(continued exactly as in the original decision…)

“Justice I. F. Leach”

JUSTICE I. F. LEACH

Released: (Orally) December 18, 2013