ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13364/13
DATE: 20151125
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Suleman Hussain
Applicant
Michael Newell, for the Crown
Dirk Derstine and Janani Shanmuganathan, for the Applicant
HEARD: September 29, 2015
SENTENCING
edwards J.:
Overview
[1] Mr. Hussain was convicted of a number of serious firearms offences as well as breach of recognizance and breach of a prohibition order, specifically:
(a) 91(1): unauthorized possession of firearm;
(b) 92(3): knowing unauthorized possession of firearm;
(c) 99(1)(b): firearm trafficking;
(d) 117.01: possession contrary to order; and
(e) 145(3): breach recognizance.
[2] There has been a significant delay between the date of conviction and sentencing, largely due in part to the termination by Mr. Hussain of his trial counsel and the subsequent retainer of Mr. Derstine. The sentencing of Mr. Hussain was also complicated by two constitutional challenges. The first challenge relates to the mandatory minimum sentence mandated by s. 99 (2) of the Criminal Code. The second challenge relates to s. 719 (3.1) of the Criminal Code, which effectively prevents an accused who is detained pursuant to s. 524 (4) or (8) from receiving enhanced credit for time spent in pre-sentence custody.
[3] I intend to provide a brief overview of the facts, followed by an overview of both the Crown and defence position on sentence. I then will provide an overview of the Crown and defence positions regarding the constitutionality of the mandatory minimum sentencing provisions of s. 99 (2), followed by their respective positions concerning the constitutionality of s. 719 (3.1). I will complete these Reasons with an analysis of the constitutionality of these two sections, concluding with my decision on sentence.
The Facts
[4] At the time of his arrest on November 20, 2012, on the charges for which Mr. Hussain now stands convicted of, he was out on bail in connection with charges that allegedly occurred in Toronto on January 7, 2012. He remained in custody concerning those charges until April 20, 2012, when he was released on bail.
[5] When he was arrested on November 20, 2012, Mr. Hussain did not seek bail. He has been in custody ever since – now a period of almost three years. The Toronto charges apparently were to go to trial in October 2015; I am unaware of any disposition of those charges to date.
[6] On September 30, 2014, the Crown formalized the cancelation of Mr. Hussain’s recognizance of bail for the Toronto charges, pursuant to s. 524 of the Criminal Code.
[7] From the time of his arrest on November 20, 2012, until September 30, 2014 when the Crown formalized the cancelation of his bail for the Toronto charges, Mr. Hussain has served 680 days in custody. From September 30, 2014 to today’s date (November 16, 2015) Mr. Hussain has served a further 412 days in custody, for a total of 1,092 days or just less than three years.
[8] If Mr. Hussain receives enhanced credit of 1.5:1 for the entire time period that he has been in custody, from November 20, 2012 to date, he would be entitled to a maximum credit of approximately 4.5 years. If he only receives enhanced credit for the time period of November 20, 2012 through September 30, 2014, and then one for one credit for the time period of September 30, 2014 to today’s date, then he would receive credit for 1,432 days or approximately 3.92 years. If Mr. Hussain only receives credit on a ration of 1:1 for the entire time period that he has been in custody, he will receive credit for essentially three years. Summarizing the options open to this court in granting Mr. Hussain credit for the time that he has been in custody ranges in round figures between 3 years, 4 years, or 4.5 years. This summary provides some context in that the Crown seeks a total sentence of 5.5 years incarceration less whatever period of pre-sentence custody this court ultimately determines.
(continues exactly as in the source text)
_________________________
Justice M.L. Edwards
Released: November 25, 2015