COURT FILE NO.: 13/50000376/0000

DATE: 20140214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ABDULLAH MOHAMED ABDULLAHI

Applicant / Defendant

J. Cameron, for the Respondent / Crown

A. Alawi, for the Applicant / Defendant

HEARD: January 6, 2014

MCWATT J.:

REASONS FOR JUDGMENT ON

CONSTITUTIONAL CHALLENGE OF MANDATORY MINIMUM SENTENCE

FOR DISCHARGING A FIREARM (s. 244. 2(3)(a)(i) of the CRIMINAL CODE) and sentencing

[1] Mr. Abdullah Abdullahi has pleaded guilty to three Criminal Code offences – recklessly discharging a firearm [s. 244.2(3)(a)(i)], possessing that firearm while not authorized or registered to do so [s. 95(2)(a)] and possessing a prohibited device – an over-capacity handgun magazine, without a licence [s. 91(3)(a)].

[2] He has brought an application pursuant to sections 12, 7 or 9 of the Charter of Rights and Freedoms for a declaration that section 244.2(3) is unconstitutional due to the mandatory minimum sentence of five years in jail for a first offender.

The Facts

[3] On Thursday, February 9th, 2012, at approximately 1:50 pm., Abdullah Abdullahi and another male, Mohamud Duale, became involved in an exchange with an unknown male and female in the housing complex located at 1046 Tandridge Crescent in Toronto. Shortly after this exchange, Abdullahi, Duale and another person shot at each other. A male identified as Abdiweli Abdullahi was struck in the leg by a bullet. Moments later, the applicant, Mr. Abdullahi, fired 2 – 3 rounds into the air near 1046 Tandridge Crescent from a chrome firearm. The defendant then began to walk away, stopping to pick up spent casings from the scene. Both Mr. Duale and Abdiweli Abdullahi, the injured man, were in close proximity all the while.

[4] The applicant left the immediate area with Mr. Duale and the male who was shot in the leg. Mr. Duale also carried a firearm throughout the complex. Uniformed officers arrived on scene and pursued all three males in a pathway near a row of backyards in the Tandridge complex. The injured male collapsed near a backyard halfway down the pathway. Mr. Abdullahi and Mr. Duale continued running towards 75 Tandridge Crescent. Mr. Duale was eventually arrested by officers in front of 1029 Tandridge Crescent. A loaded .40 calibre Glock handgun was recovered 20 metres away from where the injured male had collapsed, along the pathway that Mr. Duale had run through, in the backyard of a townhouse unit in the complex.

[5] After a foot pursuit, Mr. Abdullahi was arrested and found to be in possession of a 9 mm Ruger handgun. Most of these events were captured by video surveillance that was seized and reviewed by the Toronto Police. Several pedestrians and occupied vehicles were seen in or moving about the neighborhood at the time of the shooting and foot chase.

[6] If the section is ruled unconstitutional, the defence contends that a six to twelve month sentence on top of pretrial custody, from the date of arrest to today, of just over two years is an appropriate sentence. The Crown asks that a six year custodial sentence be imposed minus the pre-trial custody.

[7] Both lawyers agree that the pre-trial custody should be counted on a 1.5 to 1 basis – which would amount to three years of pretrial custody.

Firearms in Canada

i) 1995: Amendments to the Criminal Code and the Passage of the Firearms Act

[8] On December 5th, 1995, Bill C-68 (An Act Respecting Firearms and Other Weapons) received royal assent. Bill C-68 created the Firearms Act, amended Part III of the Criminal Code and allowed for the making of regulations for administration of the Act. Bill C-68 required universal licensing and registration of all firearms. The Firearms Act created several new Criminal Code offences including the provision at issue here. Some of the offences are as follows:

(i) Section 91 – an offence to possess a firearm without both a licence and a registration certificate;

(ii) Section 92(1) – an indictable offence to knowingly possess a firearm without both a licence and registration certificate;

(iii) Section 95 - an offence to possess a loaded restricted or prohibited firearm or to possess either with ammunition readily available;

(iv) Section 96 – an offence to possess a weapon obtained by crime;

(v) Section 97 – The seller or provider of a cross-bow had to ensure that the recipient had a valid cross-bow licence;

(vi) Section 99/100 – an offence to traffic in weapons or possess them for the purpose of trafficking;

(vii) Section 103 – an offence to import or export weapons without being authorized;

(viii) Section 106 and 107 – an offence to fail to report the destruction of a firearm and make a false statement about the loss, theft or destruction of firearms; and

(ix) Section 117.02 – an offence to fail to produce licencing documentation when required to do so.

[9] As well, the Criminal Code was amended to include mandatory minimums for the following offences where a firearm was used: criminal negligence causing death; manslaughter; attempted murder; intentionally causing harm with a firearm; sexual assault with a weapon; aggravated sexual assault; hostage-taking; kidnapping; and extortion.

ii) Mandatory Minimums Legitimate Response to Gun Control

[10] Mandatory minimum sentences have been accepted as part of Parliament’s legitimate interest in gun control. In R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284 at p. 19 (Q.L. Version), Dickson J. (as he then was) noted that s. 83 [now s. 85], which imposed a mandatory minimum of one year for the use of a firearm consecutive to any sentence arising from the underlying offence was part of “a comprehensive ‘gun control’ legislative scheme intended to discourage the use of firearms by the criminal element of our society.”

[11] In R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443 at paras 47 and 76, the Supreme Court, in upholding the reverse onus provision under then s. 106.7(1) for a charge of possession of a restricted weapon, noted that since the initial inclusion of gun control provisions in the Criminal Code “there have been successive amendments which without exception have strengthened the controls upon possession and use of firearms.” Dickson C.J.C. although in dissent, noted that what is now Part III of the Criminal Code:

represents the latest attempt by Parliament to strike the proper balance between the interest of Canadian society in protecting its members from violent actions and the freedom of individuals to possess and use guns for legitimate purposes. It embodies wholly legitimate societal concerns for stricter regulation and control of guns and other offensive weapons.

iii) Subsequent Challenges to Mandatory Minimum Sentences for Firearms Related Offences

[12] A number of challenges have been made to mandatory minimum sentences related to firearms offences. Most have been rejected. In R. v. Brown, 1994 29 (SCC), [1994] 3 S.C.R. 749, the Supreme Court of Canada rejected a challenge to s. 85 and the mandatory imposition of one year custody consecutive to any offence where a firearm was used. In R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, the Supreme Court rejected a challenge to the four-year minimum for criminal negligence causing death involving a firearm. In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court rejected a s. 12 Charter challenge to a mandatory minimum sentence of four years for manslaughter involving a firearm. In R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, the Supreme Court rejected a s. 12 Charter challenge to the imposition of a firearms prohibition imposed for a conviction for production of cannabis.

iv) Firearms In Canada

[13] The Supreme Court of Canada, in 1993, distinguished a firearm from any other objects able to be used as a weapon. It said “No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence” R. v. Felawka [1993 36 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii36/1993canlii36.html), [1993] 4 S.C.R. 199 at para. [21]].

[14] The Ontario Court of Appeal in R. v. P.(Q.) (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 at paras. 77 and 78 endorsed the trial judge’s comments as follows about the prevalence of firearms in Toronto:

Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods or parole eligibility. Society must be protected from criminals armed with deadly handguns.

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed.

[15] Courts in Toronto and throughout Canada have endorsed this sentiment on numerous occasions since. In R. v. Chin 2009 ABCA 226, [2009] A.J. No. 711 (C.A.) at para. 10, the Alberta Court of Appeal found that “carrying a loaded restricted or prohibited firearm is an extremely dangerous act for which there is absolutely no justification”.

The Parties’ Positions on the Constitutional Validity of s. 244.2(3) of the Code

[16] The applicant relies, first, upon the case of R. v. Smickle 2013 ONCA 678, [2013] O.J. No. 5070 where the Ontario Court of Appeal found that (along with the companion case R. v. Nur, 2013 ONCA 677) a three year minimum sentence for possession of a firearm pursuant to section 95 of the Criminal Code is unconstitutional; and, second, the fact that Superior Courts have an inherent jurisdiction to issue a general declaration of constitutional invalidity, “removing the law from the statute books [Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54; R. v. Ferguson, 2008 SCC 6].

[17] The applicant maintains that section 244.2 of the Criminal Code imposes a grossly disproportionate punishment resulting in a violation of section 12 of the Charter of Rights and cannot be justified under section 1 of the Charter. The only appropriate remedy, in the circumstances, is to strike down the section in accordance with s. 52 of the Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Schedule 13, S. 52.

[18] The Crown’s response is that the applicant’s actions in possessing a loaded illegal handgun and recklessly firing it in the middle of the day in a housing complex with several other people nearby requires a substantial sentence and the minimum sentence of 5 years mandated by s. 244.2(3)(i) is appropriate. It reflects the growing problem presented by handguns and those who possess and use them. The minimum sentence would not breach ss. 12, 7 or 9 rights guaranteed to Mr. Abdullahi by the Charter. The Crown maintains that:

(i) The offence of possession and the reckless firing of such a weapon is inherently serious;

(ii) The affect of the minimum 5 year sentence is not grossly disproportionate nor even excessive. It does not approach the level of outraging the community’s sense of decency; and

(iii) The sentence is in accordance with the overarching principle of proportionality and other legitimate sentencing principles.

The Law

[19] The Crown has outlined the relevant statutory and common law principles of sentencing and I quote directly from her factum in stating the following:

1. Relevant Statutory Provisions

2. The guiding principles of sentencing are found at ss. 718-718.2:

Purpose: Section 718

The fundamental purpose of sentencing is 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 following objectives:

(a) to denounce unlawful conduct

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to provide a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community

Fundamental Purpose: Section 718.1

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other Sentencing Principles: Section 718.2

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence of the offender

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

2. General Principles

3. Sentencing is a highly individualized process; but it is not driven by the discretion of the judge to impose a sentence that he or she sees fit without regard to the principles that Parliament has seen fit to provide guidance. This guidance also takes the form of the imposition of mandatory minimum sentences which reflect the legislature’s views of the seriousness of an offence and category of offenders. The fundamental principle is that of proportionality which reflects the “just desserts” rationale for state-imposed and sanctioned punishment. The sentence must fit the specific crime and the specific offender. As noted in R. v. Hamilton, infra, the gravity of the offence “refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.” The responsibility of the offender incorporates the notion of an offender’s culpability and any aspects of his or her conduct or background that may increase or decrease their personal responsibility.

Tab 20 – R. v. Hamilton 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) at paras. 87-94 per Doherty J.A.

Tab 21 – R. v. Wilmott, [1967] 1 C.C.C. (Ont. C.A.) 171 at pp.178-9

29. In order to comply with the proportionality principles as set out in the Code, it must be recognized that the mandatory minimums sets out the “inflationary floor” that a Justice is to start from when imposing an appropriate sentence based on the gravity of the offence and the degree of the responsibility of the offender, balanced with all other sentencing principles. In her concurring opinion in Morrisey, Arbour J. held that the mandatory minimum sentence for firearms-related offences must act as an “inflationary floor” applicable to the so-called best offender. Over time, sentences come to reflect the inflationary consequences of the new minimum. It is unwise to simply measure gross proportionality against an existing range of sentences because, subject to constitutional limits, Parliament is entitled to create aggravated forms of existing offences with enhanced punishments.

Tab 17 - R. v. Morrisey, supra at paras. 49, 75-76

30. The proportionality principle can lead to different results based upon the nature of the offence. Doherty J.A. noted in R. v. Hamilton, supra:

In some circumstances, one side of the proportionality inquiry will figure more prominently in the ultimate disposition than the other. For example, where a young first offender is being sentenced for a number of relatively serious property offences, the sentence imposed will tend to emphasize the features which mitigate the offender’s personal culpability rather than those which highlight the gravity of the crimes: see R. v. Priest, supra. If, however, that same young offender commits a crime involving serious personal injury to the victim, the “gravity of the offence” component of the proportionality inquiry will be given prominence in determining the ultimate disposition.

Tab 20 – R. v. Hamilton, supra at para 94

Tab 22 – R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 at pp. 297-98 per Rosenberg J.A.

31. Other sentencing principles including retribution and denunciation also have a valid role in imposing sentence. Retribution has been defined by Lamer C.J.C. in R. v. M. (C.A.), supra as representing “nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender.” He distinguished retribution from vengeance in the following terms:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

Tab 23– R. v. C.A.M. 1996 230 (SCC), [1996] 1 S.C.R. 500 at paras 79-80

32. Denunciation also plays a related but different role than retribution. Lamer C.J.C. made the following observations distinguishing the two different principles:

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As lord Justice Lawton stated in R. v. Sargeant [cite omitted]: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass.” The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

Tab 23 – R. v. C.A.M. supra at para 81 per Lamer C.J.C.

33. Finally, the principle of rehabilitation can be also addressed through mandatory minimum sentences. Offenders would be provided with appropriate programming at the federal institutions to address their personal needs in anticipation of their reintegration into the community…

Sentencing and Judicial Discretion

35. The applicant has attempted to characterize s. 244.2(3)(i) as an attack on judicial discretion in sentencing. This characterization, respectfully, is unfounded for a number of reasons. As a matter of law, this section is an indictable offence, pursuant to s. 34(1)(a) of the Interpretation Act until such time as the Crown elects to proceed summarily. As such, the practical implication for this section is that only one sentence range is available to the court based upon the statute. Further, the Crown’s election is a matter within its “core” duties and, absent abuse of process in a specific case, is beyond the review of the courts. As the court noted in R. v. Smythe, infra “[e]nforcement of the law and especially of the criminal law would be impossible unless someone in authority [the Attorney General] be vested with some measure of discretionary power”. As well, the Applicant inherently acknowledges that the Crown did not elect inappropriately in this instance.

Tab 24 – R. v. Dudley, 2009 SC 58 at para 17-18

Tab 25 – R. v. Smythe 1971 831 (SCC), [1971] S.C.R. 680

Tab 26 – Krieger v. Law Society of Alberta 2002 SCC 65, [2002] 3 S.C.R. 372 at para 48 per Iacobucci and Major JJ.

36. Further, and most importantly, judicial discretion during sentencing is not absolute. As the Supreme Court recently noted in R. v. Nasogaluak, infra, within the context of mandatory minimums that judicial discretion is constrained by “the restricted availability of certain sanctions in the Code” and that in the absence of a declaration of unconstitutionality of a sentencing provision, “[a] judge’s discretion does not extend so far as to override this clear statement of legislative intent.”

Tab 27 – R. v. Nasogaluak 2010 SCC 6 at para. 45

per Lebel. J.

General Deterrence

37. General deterrence is enshrined by 718 (b) of the Code and recognized by the Supreme Court of Canada as a valid purpose in sentencing, including several cases involving challenges to mandatory minimums as cruel and unusual punishment.

Tab 28 – Sauve v. Attorney General of Canada et.al. (2002), 2002 SCC 68, 168 C.C.C. (3d) 449 (S.C.C.)

Tab 29 – R. v. Wust, 2000 SC 18 (S.C.C.)

Tab 30 – R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.)

Tab 17 – R. v. Morrisey, supra

Tab 23 – R. v. C.A.M. (C.A.), supra

Tab 31 – R. v. Shropshire (1995), 1995 47 (SCC), 102 C.C.C. (3d) 193

Tab 32 – R. v. Jones (1994), 1994 85 (SCC), 89 C.C.C. (3d) 353 9s.c.c.)

Tab 33 – R. v. Goltz (1991), 1991 51 (SCC), 67 C.C.C. (3d) 481 (S.C.C.)

Tab 34 – R. v. Martineau (1990), 1990 80 (SCC), 58 C.C.C (3d) 353 (S.C.C.)

Tab 35 – R. v. Luxton 1990 83 (SCC), [1990] 2 S.C.R. 711 (S.C.C.C)

Tab 36 – R. v. Smith 1987 64 (SCC), [1987] 1 S.C.R. 1045 (S.C.C.)

The Charter of Rights and Freedoms

[20] Sections 12, 7 and 9 set out the following:

12. Everyone has the right not to be subjected to any cruel and unusual punishment.

LIFE, LIBERTY AND SECURITY OF PERSON

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

DETENTION OR IMPRISONMENT

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[21] The onus is on the applicant, on a balance of probabilities, to show that his rights have been infringed by the legislation requiring a minimum sentence.

[22] There was no argument made before me about sections 7 and 9 which were independent of the constitutional challenge based on section 12 of the Charter. The only analysis to follow, therefore, is in relation to section 12.

[23] In R. v. Smith 1987 64 (SCC), [1987] 1 S.C.R. 1045 at paras. 53-54, Lamer J. defined the protection afforded by s. 12 of the Charter as

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miler and Cockriell, supra at p. 688, “whether the punishment prescribed is so excessive as to outrage standards of decency.” In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

[24] In that judgment, Justice Lamer also commented that mandatory minimum sentences were not per se cruel and unusual punishment.

[25] Justice Rosenberg, in R. v. MacDonald 1998 13327 (ON CA), [1998] O.J. No. 2990 (C.A.) at para. 68 defined the term cruel and unusual punishment as a sentence which was “grossly disproportionate to what would have been appropriate. The punishment must be so excessive as to outrage standards of decency. A sentence that is merely excessive or even unfit, is not necessarily grossly disproportionate: Further, it is unwise to simply measure gross disproportionality against a current sentencing regime.”

[26] In the MacDonald case, a four year minimum jail sentence was upheld for a youthful first offender who merely showed a BB gun to a robbery victim.

[27] The Supreme Court of Canada in Smith also warned that while it is properly a judicial function to decide whether a punishment exceeds constitutional limits set by the Charter, courts “should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency” (R. v. Smith, supra at para. 47). The Supreme Court has also suggested that it will be on “rare and unique occasions” when a court will find a breach of s. 12 of the Charter [Steele v. Mountain Institution 1990 50 (SCC), [1990] 2 S.C.R. 1385 para. 80 per Cory J].

Two-Step Analytical Approach

[28] To decide whether Mr. Abdullahi’s section 12 rights have been infringed, I must first examine “all relevant contextual factors” in light of the particular offender before me R. v. Morrissey, supra, at paras. [27 – 29]]. The Crown submits that the factors to be considered include the following, but that (as per Lamer C.J.C. sets out in R. v. Latimer 2001 SCC 1, [2001] 1 S.C.R. 3 at para. [75]](https://www.canlii.org/en/ca/scc/doc/2001/2001scc1/2001scc1.html)], “not all of these matters will be relevant to the analysis and none of these standing alone will be decisive to a determination of gross disproportionality”.

(a) The gravity of the offence;

(b) The personal characteristics of the offender;

(c) The particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender;

(d) The actual effect of the punishment on the individual (which includes consideration of things such as parole);

(e) The penological goals and sentencing principles upon which the sentence is fashioned;

(f) The existence of valid alternatives to the punishment imposed. A comparison of punishments imposed for other crimes in the same jurisdiction.

R. v. Smith, supra, at p. 1073; R. v. Goltz (1991), 67 C.C.C. (3d) 353 (S.C.C.) supra, at paras 25-27; R. v. Morrissey, supra, at paras. [27-28]].

[29] If the sentence is found to be grossly disproportionate for Mr. Abdullahi, this court would then analyse whether s. 1 of the Charter justified such an infringement. If the sentence were not found to be disproportionate for Mr. Abdullahi, I must still go on to consider the constitutionality of the sentence with reasonable hypotheticals. If the sentence is grossly disproportionate in a reasonable hypothetical case, then only section 1 of the Charter can save it from being declared unconstitutional [R. v. Morrissey, supra].

[30] Any reasonable hypothetical to be considered cannot be “far-fetched or only marginally imaginable as a live possibility … which could commonly arise in day-to-day life.” R. v. Goltz, supra, at para. [69](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii51/1991canlii51.html); R. v. Morrissey, supra at paras. [30 – 33]].

Analysis

[31] The recent Ontario Court of Appeal cases in R. v. Hussein Jama Nur, 2013, supra and R. v. Smikle, supra are guidance in the argument that section 244.2(3) is unconstitutional, but the facts in them vary tremendously from the facts before me. And, obviously, the charges are quite different.

Gravity of the Offence and Particular Circumstances of This Case

[32] This is not a case of simple possession of a loaded, prohibited or restricted firearm. Nor is it simply the discharging of such a weapon. This offence took place in the context of a shooting. Not just the applicant, but also Mr. Duale was in possession of a loaded firearm. There is no explanation at all as to why they possessed them. Mr. Abdullahi fired three shots with Mr. Duale and their wounded companion close by. The video footage of the offence seems to show, but is not conclusive, that the shots the applicant discharged were fired directly into the air. Mr. Abdullahi took steps to retrace his movements to retrieve the bullet casings from the three shots and to conceal his criminal intent. Thereafter, video footage showed the applicant running through the housing complex with the loaded firearm in his hand – leading to a possible inference that he meant to fire it again or meant to intimidate anyone in his path. The housing complex had persons coming and going. Mr. Abdullali posed a risk to them, his companions and the police.

[33] The applicant ran from police who had been called to the complex and was arrested still in possession of the firearm.

[34] It can be inferred from the video tape footage of the incident that Mr. Abdullahi did not initiate the shooting. Those who did were never arrested.

[35] As set out by Doherty J.A. in R. v. Nur, supra at paras. 82-84, the gravity of an offence is measured by the essential elements the Crown must prove and not by the circumstances surrounding the commission of the offence in the particular case before the Court. While acknowledging the inherent danger of all firearms, the seriousness of any firearm offence is the “product of the harm targeted by the elements of the crime and the moral culpability required to establish guilt … The greater the harm and the higher the moral culpability, the more serious the crime. Crimes that require proof of actual harm to others, especially death, are generally more serious than crimes that prohibit other forms of harm.”

[36] Mr. Abdullahi’s plea of guilt to count 1 on the Indictment before me is an acknowledgement that while armed with a prohibited firearm, he intentionally discharged it while being reckless as to the life or safety of the public. Consequently, he endangered the public. There was a real risk for harm in this case and that fact distinguishes it from the Nur and Smickle cases.

[37] The Crown contends that the facts of this case cry out for a sentence in excess of the 5 year minimum due to its aggravating features and compares it to R. v. Hassan [2012] B.C.J. No. 1049 where the accused was sentenced to 7 years for recklessly discharging a prohibited firearm. He shot a bouncer in the leg after having been denied entry into a nightclub. At the time of the offence, the accused was on bail and prohibited from possessing a firearm. The Crown also compares this case to that of R. v. Alexander [2013] O.J. No. 1613 where the defendant was sentenced to 7 years for firing a prohibited gun at a loss prevention officer chasing him in a mall after he had stolen a bottle of perfume. Mr. Alexander had a lengthy record. The court considered his having the gun at a shopping mall and placing the public at risk as aggravating factors. The defendant was given credit on his sentence due to the jail conditions he experienced while in custody and for his positive rehabilitation prospects.

[38] Although the facts of these cases are not entirely the same as the applicant’s case, they are instructive in relation to how serious the charge of discharging a firearm charge is. And the fact that one of Mr. Abdullahi’s group was shot cannot be ignored.

[39] Mr. Abdullahi has a criminal record. As a youth, he was found guilty of obstructing a peace officer and failing to comply with a recognizance in 2004. As an adult, he has one conviction in 2010 for obstructing a peace officer.

Effect of the Punishment on the Offender

[40] In R. v. Morrissey, supra, at paras. 41-42, this court is told to consider how the offender will be personally affected by the actual punishment imposed. Parole eligibility is a factor directly related to the applicant’s situation. In fact, if a five year sentence were imposed on today’s date, at a 1:5 day credit for one day served ratio, Mr. Abdullahi will have served three years of pre-trial custody and would have two years left to be served on his sentence. He would be eligible for parole in 8 months.

Penological Goals and Sentencing Principles

[41] R. v. Morrissey, supra at para. 43 sets out that in evaluating whether or not a mandatory minimum sentence is cruel and unusual punishment for the offender, the court must “determine whether Parliament was responding to a pressing problem, and whether its response is founded on recognized sentencing principles”. The Supreme Court took into account that there had been a consistent and serious problem related to firearms deaths for 20 years prior. It also noted that a penalty emphasizing deterrence, denunciation and retribution over the principles of rehabilitation and specific deterrence is still valid under s. 12 of the Charter [para. 46].

[42] As previously set out in this judgment, judicial pronouncements about the need to deter and denounce firearm crimes and the criminal activity which involves the use of firearms in Canada, in general, and, in Toronto, in particular, is abundant. I need not repeat it all here.

[43] In all of the circumstances of this case, a sentence of 5 years is not grossly disproportionate. There is no breach of s. 12 in relation to section 244.2(3) of the Criminal Code.

Reasonable Hypothetical

[44] Although no hypothetical was proposed in his written submissions, Mr. Alawi, for the applicant, set out the following in his oral submissions. The hypothetical he proposed was that of a “law abiding citizen with a Firearms Acquisition Certificate who properly stored his firearm, but who, during target practice at his cottage, shot the gun into the woods surrounding the cottage.”

[45] The hypothetical must be “reasonable”. The one proposed here does not include an illegal firearm as in Mr. Abdullahi’s case. There may not be recklessness nor a risk to the public in the hypothetical proposed, which is the basis of the section in question. It is not a reasonable hypothetical upon which to conduct the weighing of the possible disproportionality of a 5 year minimum sentence for the offence in question.

[46] As a result, the application to strike down the section is dismissed.

Sentencing

[47] The aggravating features of this case have already been set out, but I summarize them here:

(1) The offence took place in a residential community with numerous persons around, including Mr. Abdullahi’s two male companions. The firearms were in sight for the residents to see as the defendant and his companions ran through the housing complex away from the scene of the crime;

(2) The offence was in response to a shooting, during which Mr. Abdullahi’s companion was shot in the leg;

(3) Not only was the defendant in possession of an illegal firearm, but his companion, Mr. Duale, also possessed one;

(4) There is no innocent explanation for any of the firearms being present at the scene;

(5) Three shots were fired with persons close by;

(6) The defendant retrieved the casings to cover his tracks / hide his criminal intent.

[48] The mitigating features of Mr. Abdullahi’s case are the following:

(1) Mr. Abdullahi has pleaded guilty. He did not apply for bail. He waived his preliminary inquiry. He has shown remorse for his crimes;

(2) he did not initiate the shooting, but the fact that he then became further involved in it lessons the mitigating weight of this factor;

(3) he has a supportive family;

(4) he has made strides while in custody to better his education and intends on furthering his education in custody and upon release;

(5) his criminal record is a somewhat minor one.

[49] In the circumstances, the minimum sentence of 5 years is appropriate in this case.

[50] Mr. Abdullahi has served 2 years and 5 days in custody. On a 1:5 credit to one day served calculation, he has served the equivalent of 3 years in custody. I am prepared, then, to sentence him to two further years in the penitentiary. The sentences are as follows:

1. Count 1 [(s. 244.2(3)] Discharge of Firearm – 5 years less 3 years pre-trial custody with a sentence of 2 years left to be served in the penitentiary;

2. Count 3 [s. 95(2)(a)] – Possession Loaded Prohibited Firearm – 3 years concurrent less 3 years pre-trial custody with 1 day left to be served;

3. Count 7 [s. 91(3)(a)] – Possession Over-capacity Handgun Magazine – 3 years concurrent less 3 years pre-trial custody with 1 day left to be served.

[51] There shall also be an Order pursuant to s. 109 of the Criminal Code for life.

McWatt J.

Released: February 14, 2014

COURT FILE NO.: 13/50000376/0000

DATE: 20140214

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ABDULLAH MOHAMED ABDULLAHI

Defendant

REASONS FOR JUDGMENT ON

CONSTITUTIONAL CHALLENGE OF MANDATORY MINIMUM SENTENCE

FOR DISCHARGING A FIREARM (s. 244. 2(3)(a)(i) of the CRIMINAL CODE) and sentencing

McWatt J.

Released: February 14, 2014