CITATION: R. v. Fathe Ahmed, Mahmood Ahmad, Mohamed Taha, Russell Bullock, 2015 ONSC 4241
COURT FILE NO.: CR-14-10000056-0000
DATE: 20150504
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FATHE AHMED, MAHMOOD AHMAD, MOHAMED TAHA and RUSSELL BULLOCK
Accused
Michael MacDonald, for the Crown
John Collins and Joanna Collins for Mahmood Ahmad
Benjamin Moss for Russell Bullock, and Ismar Horic for Mohammad Taha
HEARD: April 15, 2015
REASONS FOR SENTENCE
A.J. o’marra j.;
[1] Mr. Taha was found guilty after trial of dangerous driving and acquitted on counts of being an accessory after the fact to the offence of robbery and failing to remain at the scene of an accident. Mr. Taha is here today to be sentenced for the dangerous driving offence.
[2] On March 19, 2013, three armed men, none of whom was Mr. Taha, entered the apartment of Richard Kruk for the purpose of robbing him of drugs and money. During the course of the robbery Mr. Kruk was shot but survived.
[3] Mr. Taha drove the three assailants to the apartment building where the robbery took place and drove them away afterwards. As Mr. Taha drove from the scene southbound on Keele Street he turned the vehicle sharply in front of a TTC bus being driven in the same direction causing a collision. After a momentary pause he drove the damaged vehicle northbound where he brought the vehicle to a stop. All of the occupants save Mr. Taha fled on foot. Moments later Mr. Taha was arrested by police standing beside the open driver’s door of his motor vehicle.
[4] Mr. Taha testified that he was unaware of the planned robbery and was not a participant. He met a friend, Fathe Ahmed at a McDonald’s restaurant that evening, who asked him if he could give him a drive to buy some “weed”. He agreed to do so. Prior to departing two persons, friends of Mr. Ahmed unknown to Taha joined them.
[5] He drove the three to an area of Toronto as directed by Mr. Ahmed. Mr. Taha agreed to wait and to drive them back downtown. On the return of the passengers, and as they were driving away although he was unaware of what had taken place in Kruk’s apartment he did observe that his passengers were agitated. As they proceeded south on Keele Street one of the occupants yelled they were closing the intersection on seeing a police car enter into the intersection. Mr. Taha looked to the back seat and saw a sawed off shotgun between the back seat passengers. Next he heard someone yelling at him to “turn”. In a panic he turned left sharply in front of the TTC bus. The bus crashed into the rear driver’s side of his vehicle. After the collision the passengers yelled repeatedly at him to “drive”.
[6] For reasons given in R. v. Ahmad, Bullock and Taha, 2015 ONSC 2453 I found Mr. Taha not guilty of being an accessory after the fact and failing to remain at the scene of an accident, but guilty of dangerous operation of a motor vehicle in causing the collision with the TTC bus. I accepted that Mr. Taha had been an unwitting participant in the events that evening. He had not been fleeing civil or criminal liability when he continued driving after the accident. Rather, he acted out of the fear having observed the agitation of his passengers and the presence of the sawed off shotgun in his vehicle. However, turning the vehicle in front of the bus in the circumstances was a marked departure from what is expected of a reasonably prudent driver.
[7] Mr. Taha at the time of the occurrence was 19 and he had no criminal record. His parents came from Eritrea in 1986. He was born here in 1993. Although his parents separated and divorced in 2009, they have both been involved in his life throughout. He graduated high school in 2011 and attended one semester at York University. He withdrew from his university program after he was arrested. He has worked at various jobs since the age of 15. After his release on bail he continued to work with his father, who acted as surety at his place of employment, TA Poultry Sales. Also, he assisted his father in his maintenance company.
[8] Counsel for Mr. Taha indicated that his plans include qualifying as a real estate agent and to continue his education in the area of human resources management and business.
[9] The Crown suggested that because Mr. Taha is a youthful first offender and his offence involved a single incident in which no injuries were caused to others, a fine or suspended sentence together with a driving prohibition for one year under the Criminal Code, to parallel the one year automatic suspension under the Highway Traffic Act, would be appropriate. Crown counsel acknowledged that were it not for the charge of being an accessory after the fact, the Crown would have proceeded summarily against Mr. Taha on the driving offences.
[10] Counsel for Mr. Taha submitted that the court should consider imposing either an absolute or conditional discharge. He has no criminal record. He testified candidly about the actions of those he was with that evening. His act was one which occurred during a moment of panic. It was a lapse of judgment due to the panic he felt after seeing the shotgun and the agitation of the others in the car. Fortunately, no one was injured in the collision.
[11] Mr. Taha was detained for 17 days following his arrest on March 19, 2013. On release, he was subject to strict bail conditions amounting to house arrest and supervision by his parents as sureties.
[12] Section 730 of the Criminal Code, which deals with absolute and conditional discharges states as follows:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interests, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[13] Dangerous driving is the type of offence which requires a sentence that denounces the conduct and deters others who may present as a danger to other members of the public. It is a rare circumstance in which a discharge will be granted when a person commits the offence of dangerous driving, because of the need to emphasize the sentencing objectives of denunciation and deterrence. But that does not mean it is precluded. The courts have long recognized, when the pre-conditions have been met that there is nothing in the language of the section that limits its application to only technical or trivial violations. (See: R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2nd) 450 (BCCA)).
[14] In this situation I find that it would be in the best interests of Mr. Taha at this time of his young life to grant a conditional discharge. He was caught up in a situation not of his making. While he caused the collision, it was the result of an impulsive reaction on finding himself in a fearful situation. Mr. Taha addressed the court prior to sentencing and he has accepted responsibility for his actions. I accept his expression of remorse as genuine.
[15] Further, in this situation granting a discharge would not be contrary to the public interest. In my view, a driving prohibition as a condition of the discharge for the period of the probation, with a parallel prohibition for one year ordered under s.259 (2) of the Criminal Code will provide the necessary deterrent message.
[16] In the result, Mr. Taha is sentenced to a conditional discharge with a probationary period of 12 months, the only conditions being that he keep the peace and be of good behavior and that he not operate a motor vehicle for 12 months. In addition, there will be a driving prohibition for one year under s.259 (2) of the Criminal Code.
A.J. O’Marra J.
Released: May 4, 2015
2015 ONSC 4241
COURT FILE NO.: CR-14-10000056-0000
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Fathe Ahmed, Mahmood Ahmad,
Mohamed Taha, and Russell Bullock
Accused
REASONS FOR SENTENCE
A.J. O’Marra J.
Released: May 4, 2015