ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000334-0000
DATE: 20150825

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Javid Ahmad

Defendant

D. Morlog, for the Crown

J. Herschberg, for the Defendant

HEARD: June 29, 2015

Allen J.

REASONS FOR JUDGMENT ON SENTENCING

BACKGROUND TO SENTENCE

The Charges and Facts of the Arrest

[1] In June 2014, the offender, Javid Ahmad, was tried by judge-alone under the Controlled Drugs and Substances Act, (S.C. 1996, c. 16) (“the CDSA) on charges of possession of cocaine with an estimated street value of from $5,000 to $10,000. He was further charged under the Criminal Code, R.S.C., 1985, c. C-46 (the Criminal Code) on two counts of possession of proceeds of crime in the amounts of $140 and $6,970. A backpack was seized containing a large quantity of cocaine in a Ziploc baggie, 46 dime baggies of cocaine, a cellphone and three envelopes with cash inside. He was originally also charged with trafficking cocaine but the Crown withdrew that charge at the preliminary hearing.

[2] By way of background, on April 19, 2012, Mr. Ahmad unwittingly made a deal in response to a cell phone call to sell an undercover police officer $140 worth of powder cocaine. As arranged, Mr. Ahmad met the undercover officer at about 5:30 p.m. at the foot of the escalators leading to the theatres at Yorkdale shopping mall. Mr. Ahmad sold the officer the drugs and received the $140 drug buy money. He was arrested just outside the doors to the mall.

[3] I convicted Mr. Ahmad on all charges on April 25, 2014. On December 19, 2014, the defence brought an entrapment application seeking an order to stay the proceedings. By decision dated March 13, 2015, I denied the entrapment application.

Defendant's Youth Record

[4] Mr. Ahmad has a youth criminal record in relation to convictions for assault causing bodily harm and unauthorized possession of a firearm, offences he committed in June 2008. He was convicted on September 29, 2008 and the matter was finally disposed of on December 10, 2009 upon the completion of his sentence.

[5] Defence counsel argued that Mr. Ahmad's youth criminal record is not admissible as evidence on sentencing on the grounds that the final disposition of the matter at-hand occurred on March 13, 2015 when the entrapment application was dismissed. The defence relies on the Youth Criminal Justice Act, (S.C. 2002, c. 1) ("the YCJA") which provides various retention periods for youth criminal records. Certain enumerated persons and authorities, including courts, are allowed access to youth criminal records during the retention period which, pursuant to s. 119(2)(h), is five years if the youth is found guilty of an indictable offence. That provision states:

119(2)(h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed;

The access period for Mr. Ahmad's records therefore expired on December 9, 2014.

[6] Immediately after the guilty verdict was rendered on June 25, 2014, defence counsel asked that a conviction not be entered because he would be bringing an entrapment application. The defence argues, on the basis no conviction was entered on June 25, 2014 and that an entrapment application followed the verdict, the matter was not completed or disposed of until March 13, 2015 when the entrapment application was denied, three months outside the access period.

[7] I have some difficulty with the defence's position for a number of reasons. First, the objective of an entrapment application is to seek to have a conviction stayed. Defence counsel is taking contradictory positions. On his argument that there was no conviction because it was not entered, on what was his entrapment application based?

[8] The more substantial problem with the defence's position is found in sections 117 and 119(9)(c) of the YCRA. Those sections provide, for the purposes of the Criminal Records Act, (R.S.C., 1985, c. C-47), that "the finding of guilt in respect of the offence for which the record is kept is deemed to be a conviction." The Crown has met its obligation to prove Mr. Ahmad's guilt beyond a reasonable doubt. This is so whether or not the administrative function of entering the conviction was done or not.

[9] The conviction date is the operative disposition date for commencing sentencing proceedings. Convictions were imposed on April 25, 2014, almost eight months before the expiry of the access period. Hence, Mr. Ahmad's youth criminal record is admissible as evidence for sentencing.

Mr. Ahmad's Circumstances

[10] Mr. Ahmad is relatively young. He is currently 24 years of age and single and was age 22 when arrested on the current charges. He lives with his family which appears to be stable and hard working. He has an elder sister who is a social worker and his younger sister is a university student. He lives with his parents and seems to have a close relationship with them. Mr. Ahmad's mother suffers from chronic medical conditions, and according to the PSR, Mr. Ahmad is active in supporting her and helping do the household chores.

[11] Mr. Ahmad has no reported health issues. He is not addicted to drugs.

[12] The eldest sister and father expressed surprise to the author of the PSR that Mr. Ahmad is before the court on the drug charges. They say it is out of character. I suppose it is possible Mr. Ahmad could have been charged with serious criminal offences as a youth and the family be unaware of this. But I query how his family would not be aware Mr. Ahmad was away from home for four months in pre-trial custody when he was 17 years of age. Being aware of this, Mr. Ahmad's current involvement with the criminal justice system could not reasonably be seen by his family as out of character.

[13] In June 2015, Mr. Ahmad graduated from York University with an Honours B.A. in kinesiology and health science. He is financially supported by his family and has not worked during his bail period in spite of terms that allow this. He indicated he has put his career goals on hold until the disposition of this matter.

[14] A letter from a mentorship/leadership organization for Muslim youth indicates that Mr. Ahmad was involved in the activities of the organization for two years. The program coordinator describes Mr. Ahmad as respectful with a consistent and mature attitude. A youth participant with the program indicates Mr. Ahmad supported him in his job search. Mr. Ahmad's parents, a neighbour, childhood friends and fellow students sent letters of support attesting to his upstanding character, his reliability and kindness.

[15] Again, it appears to me that Mr. Ahmad's friends might not be aware of his criminal record as a youth or the nature of his current record. Their unreserved and unconditionally positive comments about him strongly suggest this to be the case.

SENTENCING PRINCIPLES

Basic Objectives of Sentencing

[16] Section 718 of the Criminal Code sets out the principles for sentencing to be considered by the court: denunciation, general and specific deterrence, and the separation of the offender from society.

[17] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The "narrow focus" of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 5549 (ON CA).

[18] Parity is another governing principle. It requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 and R. v. L.M, 2008 SCC 31.

Aggravating and Mitigating Factors

[19] Section 718.2 provides for a sentence to be increased or reduced to take account of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider.

Factors in this Case

[20] I find the mitigating factors in the case at hand are as follows:

• that Mr. Ahmad is relatively youthful;

• that he has a close relationship with his caring and stable family;

• that Mr. Ahmad has successfully completed a post-secondary university degree giving him prospects for a future career and rehabilitation of his life ;

• that Mr. Ahmad has been involved with a community organization providing mentorship to Muslim youth;

• that there is no evidence of substance abuse or addiction on Mr. Ahmad's part;

• that his previous criminal record, although for serious offences, is for dated offences committed in 2008, seven years ago;

• that he has positive acclamation from family, friends, neighbours and a community organization; and

• that over an approximate three-year bail period he has not committed a breach.

[21] Mr. Ahmad is entitled to maintain his innocence. But he cannot gain the favour as a mitigating factor that a show of remorse could bring.

[22] I find the aggravating factors to be as follows:

• that Mr. Ahmad has a youth criminal record for the very serious offences of assault causing bodily harm and unauthorized possession of a firearm;

• that despite a substantial four-month pre-trial custody period related to his youth offences, Mr. Ahmad was not discouraged from engaging in subsequent serious criminal activity as an adult;

• that his current offences are very serious in that he possessed a large quantity, 104 grams of cocaine, a dangerous drug some of which was packaged for sale, and a sizeable quantity of money, almost $7,000, indicating his involvement in commercial level drug trafficking;

• that he arranged to sell and did sell a dangerous substance in a public shopping mall where many children would be present; and

• that he did not provide information about his family and his background to the author of the PSR, information that would have been useful to the court.

Sentencing on Drug Offences

[23] Courts have recognized the particular insidious dangers to individuals and society created by drugs like cocaine.

[24] The Ontario Court of Appeal confirmed that cocaine, a Schedule I drug under the CDSA, is an "extremely dangerous and insidious drug with a potential to cause a great deal of harm to individuals and to society. The court held emphasis should be given in sentencing to the principles of denunciation and deterrence. The court cautioned, however, that the prospect for rehabilitation should not be neglected.

THE PARTIES' POSITIONS

The Crown

[25] The Crown relies on the following cases:

• R. v. Bajada, 2003 15687 (ON CA)

• R. v. Bryan, 2011 ONCA 273

• R. v. Julien, 2011 ONSC 5989

[26] The Crown seeks a sentence in the mid-level range of two to four years − two-and-a-half years' custody for possession for the purpose of trafficking; one year for each of the possession of proceeds of crime charges, to be served concurrently with the sentence on the drug offence; and two years' probation. The custodial sentence should be served on top of Mr. Ahmad's two days' pre-trial custody.

[27] The Crown relies on the principle that deterrence and denunciation should be emphasized in drug-related offences involving large amounts of cocaine. It is the Crown's view that owing to Mr. Ahmad's previous convictions on serious offences, in addition to general deterrence, specific deterrence is necessary to send a direct message to Mr. Ahmad that his criminal activity will not be tolerated.

[28] The Crown also seeks a Criminal Code, s. 109 mandatory firearm prohibition and a DNA order based on the secondary designated drug offence.

[29] The Crown suggests that the two-year probation period should have the following conditions: a prohibition on possession of a firearm; a prohibition on possession of drugs, a geographical restriction that Mr. Ahmad not be within 100 metres of Yorkdale shopping mall; and that Mr. Ahmad perform at least 50 hours of community service.

The Defence

[30] The parties agree that a period of probation is appropriate in this case. However, the defence argues a custodial term is not a fit sentence in the circumstances and seeks a conditional sentence of 18 months on strict terms.

[31] Mr. Ahmad's current charges arose before the passage of the legislation that precluded conditional sentences for serious drug offences so a conditional sentence is available to him.

[32] The cases relied upon by the defence to support a conditional sentence have important facts that distinguish them from the case at-hand.

[33] Some of the cases involve much lower amounts of cocaine.

[34] The Ontario cases that involved larger quantities of cocaine also had important distinguishing features that made those cases more suitable to a conditional sentence.

[35] In support of its position, the defence emphasizes Mr. Ahmad's youth, his close family and social connections, the opportunity for rehabilitation offered by his educational achievement and the fact his previous convictions as a youth were nearly six years before his current convictions.

CONCLUSION

[36] I find a conditional sentence is not appropriate in the circumstances of this case. I find a sentence of this sort would not show a sufficient level of denunciation and specific and general deterrence.

[37] I find a fit sentence is a reformatory sentence of two years less a day for the possession for the purpose of trafficking charge. I impose two further custodial terms of six months for each of the possession of proceeds charges. I also order a probationary period of two years following release from custody.

[38] I impose that sentence for the following reasons:

[39] I am concerned that despite the age of his previous encounter with the criminal justice system, Mr. Ahmad did not learn his lesson.

[40] Further exacerbating the situation is the fact that Mr. Ahmad trafficked the drugs in a public place where young people frequent.

[41] The sentence is in the low range.

[42] Mr. Ahmad's relatively youthful age is factor in looking at a more moderate penalty.

[43] In addition to denunciation and deterrence, I must also consider prospects for rehabilitation.

[44] The sentence I impose balances the aggravating and mitigating factors and is proportional to sentences imposed in similar cases.

SENTENCE

[45] I will now pronounce sentence. Javid Ahmad, will you please stand.

[46] Javid Ahmad, you have been convicted on one count of possession of cocaine for the purpose of trafficking and two counts of possession of proceeds obtained from crime. You stand to be sentenced on all three offences.

[47] I sentence you to a two year less a day reformatory sentence on count 1, possession of cocaine for the purpose of trafficking. I sentence you to six months for each of counts 2 and 3 for possession of proceeds obtained from crime. The six-month sentences on each of counts 2 and 3 shall be served concurrently with the sentence for count 1. Your total term in custody will therefore be two years less a day.

[48] I sentence you to two years' probation on the following terms, to be served following release from custody:

(a) You will keep the peace and be of good behaviour.

(b) You will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

(d) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer and you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.

(e) You will complete 50 hours of community service with a community organization approved by your probation officer. You will provide proof of involvement and completion of said community service to your probation officer.

(f) You will not own, possess or carry any weapons defined by the Criminal Code.

[49] Further, I make the following ancillary orders:

(a) There will be an order made under s. 109 of the Criminal Code which will prohibit you for life, commencing after release from custody, from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

(b) There will be an order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis.

[50] Mr. Ahmad, I hope this time you learn a lesson from your sentence and use your talents for positive endeavours and in the interests of justice rather than in the pursuit of criminal activity.