CITATION: R. v. Hassan, 2017 ONSC 4570
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDI HASSAN
Applicant
Kim Walker, for the Crown
Allan Lobel, for the Applicant
SENTENCING SUBMISSIONS HEARD: June 7 and 14, 2017
Reasons for Sentencing of Backhouse, J. delivered July 26, 2017
1On April 13, 2017, after dismissing Abdi Hassan’s Charter application, I convicted him of the following offences:
Count 1-possession of a firearm contrary to section 108(1)(b) of the Criminal Code;
Count 2-carrying a firearm in a careless manner contrary to section 86(1) of the Criminal Code;
Count 3- carrying ammunition contrary to section 86(1) of the Criminal Code;
Count 4-carrying a concealed handgun contrary to section 90(1) of the Criminal Code; and
Count 8-possession of an unloaded prohibited firearm with readily accessible ammunition capable of being discharged in the firearm in a vehicle on a public road without being the holder of an authorization or licence or a registration certificate contrary to section 95(1) of the Criminal Code.
On consent, I stayed Counts 5 and 6 under R. v. Kienapple and dismissed Count 7.
Circumstances of Offences
2On June 24, 2014, officers pulled over a vehicle around College Street and Spadina Avenue in Toronto with an expired validation sticker on the rear plate. Mr. Hassan was one of the occupants. Officers twice told Mr. Hassan he could leave. Officers observed him get up from where he was sitting on a doorstep, grab his right thigh and then sink back down. They then observed what looked like a firearm in the same area in which he had grabbed himself when he tried to stand up and they arrested him. Upon his arrest, a firearm slipped down his pant leg and six 9 mm bullets were recovered from his pocket. The firearm was a prohibited firearm with its serial number defaced.
Circumstances of the Offender
3Mr. Hassan was born in Toronto in 1993. He is the fourth of a sibline of 6 children. He comes from an unstable family background which commenced with the family having to abandon their country of Somalia. Shortly after the father arrived in Canada to join the family, he left for another woman, leaving his wife to parent five children on her own. In 1997 the family was living in a very difficult and dangerous neighbourhood. They had to move into a shelter for a few months until Toronto Housing was able to relocate them to their current address in a neighbourhood that has also had a high volume of criminal activity in the last decade.
4Mr. Hassan grew up being teased because he had deformed teeth which his mother could not afford to have fixed. He made no effort at school and began to socialize with peers that were equally disinterested. He dropped out in grade 10. He became involved in consuming and selling drugs and was a member of the Project Originals street gang. He became involved in the rap scene and recorded music videos and lyrics which promoted the “gangsta” lifestyle” that he posted on YouTube.
5In March 2012 he was diagnosed with Behcet’s Disease. He was partially paralyzed for a couple of months which was followed by an admission to a rehabilitation centre.
6Mr. Hassan was convicted in November, 2015 of possession of property obtained by crime and completed a period of community supervision pursuant to a court order. The probation and parole officer who authored Mr. Hassan’s presentence report from his 2015 conviction also wrote the current presentence report. The report is extensive and I quote from it:
“The past eighteen months the subject started a journey that has culminated in one of the most complete achievements the writer has witnessed in recent years:
September 2015, the subject started working at the Dollar Store in a variety of functions within the store.
Once sentenced in November 2015 he was to complete CSO hours and he then asked if he could do them at a community centre. He was given permission to do the hours there and completed them in a timely manner. The writer was kept abreast of his experiences at the Scadding Court Centre regularly.
December 2015, he met councillor Joe Cressy who has made an impression on the subject, his self-worth and the work he was doing at the centre that has affirmed his sense of citizenship and civic duty to help others and the community.
The volunteer work continued until 2016 and the subject was part of the homework club whereby he assisted youth and newcomers to learn and adjust to a new society. All the while the subject would regularly relay his experiences at the centre to the writer and out staff who supervised his case. It was in this function that he started to appreciate appropriate mentorship while getting immediate rewards for his time investment and recognition from their families.
February 2016 he prepared a volunteer training webinar that assisted with event planning for Step up Challenge which was a runners event for Prostate Cancer.
March of 2016 the subject was involved in the welcoming of [refugees from] the Syrian refugee crisis. He assisted in setting up quarters, meals, organized seating and where he met MP Adam Vaughn who he admires as he felt he was contributing to the cause of looking after people in need.
March 2016 the subject wanted to apply for sixty hour three week YES/YJC [Youth Job connections] which was the training for the understanding of the job market in Toronto.
April 2016, the subject began working at Scadding Court Community Centre where he was part of the self-sustaining aquaponics project. The subject was introduced into the responsibilities, tasks and operation of the system by his supervisor Kevin Lee and the project continues to prosper, currently supplying natural foods to local restaurants. The profits have provided revenue for the Centre to be allocated as deemed appropriate.
May 09, 2016 he was invited to speak to the City of Toronto new online support system to assist staff Mohsin Khattak by invitation from councillor Joe Cressy as an example of a hardship story of someone who used the services well and is able to move on with a productive life.
September 2016 the subject continued his dedication to the centre’s continued community support and he was offered another contract and more training about maintenance and various control systems for appropriate cultivation.
The subject has continued to assist and contribute to Scadding Court Centre’s daily functioning and providing services to the community. He has been acknowledged for his contributions by various community leaders and organizations impressed with his volunteer work, his time and his dedication to community development.
The subject is seen by Probation and Parole Services every other week and has been compliant with all aspects of the court order and has met and surpassed his personal goals. He has been able to demonstrate his resilience and determinism to become successful as an individual, a student and an employee of the Scadding Community Centre. He also demonstrates a commitment to being a valued citizen with responsibilities to the welfare of his community and family. The subject met with the writer for preparation of this report specifically and has provided a number of letters and communiqués from his employer, teacher and community staff who have worked with him.
The subject has been supervised by the writer since his community sentence on November 27, 2015. He was admitted to The Toronto "Anti Guns & Gangs" Probation and Parole Unit as was his brother for gang affiliation. The subject was identified as a member of The Project Originals street gang by Toronto Police Services. The subject stated that he was involved in the past but that he is no longer a part of any of their activities nor does he associate with them. The subject has not been highlighted or identified as being part of any activities known to police nor has his name been processed through the Canadian Police Information Centre pertaining to any criminal issue thus far whilst under community supervision at this office.
The subject commenced his supervision by being directed to complete a community service order [CSO] which he was able to finish without any problems. As he was doing his CSO hours the, staffing at Scadding Court started to notice his dedication to the program. He was offered to consider some more training and exposure to the programs at the centre. The subject started to see the Centre's dedication to the community and he too started to involve himself whilst clearing every step with the writer. The subject started to take a greater role and eventually registered to learn more about the agricultural program and the self-sustaining program of aquaponics.
The subject has relayed his involvements with the community; he acknowledged his continuous involvement and personal development, he reviewed his obligations to the Court in terms of the community hours completed at SCCC and how they led to his current success.
The subject was released on bail to Ms. Charmaine M. Flowers since July 2014 and she noted the positive changes in his life over that period of time. She explained being nervous at first but as time passed “I can say without a shadow of a doubt Abdi has not only proved me wrong but became a better man since his arrest”.
The subject was supervised by the writer since November 2015 and completed all aspects of that order which ended May 26, 2017. The subject demonstrated his ability and commitment to work towards his and the community's success while modifying his behaviour and the lifestyle of a young man trapped in the illusive media and musical waves of the "Gangsta lifestyle" and the life it portends to exist for young marginalised youth. The subject has made remarkable strides in the prosocial direction and is an example of the theoretical concepts of rehabilitation through community interventions and utilization of community resources. The subject took to heart the advice and challenge given to him from the onset of community supervision with The Toronto "Anti Guns and Gangs" Probation and Parole Unit and was directed to show the writer that he meant what he said eighteen months ago.
The subject's attachment to the Scadding Court Community Centre has afforded him the opportunity to grow within the milieu the centre offers to its clients and the community he grew up in which he now serves professionally as a staff member.”
Evidence of Joe Cressy
7Joe Cressy attended court on both days of Mr. Hassan’s sentencing hearing. He gave the following evidence. This is the first time he has been in a courtroom. He is the elected city councillor for Ward 20, Trinity/Spadina, which includes Mr. Hassan’s home and Scadding Court Community Centre. He has extensive experience working with vulnerable youth and has often interacted with Mr. Hassan at Scadding Court Community Centre on behalf of whom he both wrote a letter of support and attended to give character evidence.
8Mr. Cressy was born and raised in Toronto and grew up in the Annex, approximately 4 blocks from where Mr. Hassan resides. He has worked doing HIV and Aids work in Johannesburg in South Africa as well as in Accra, Ghana at the height of the crisis. He has also worked in Canada as a director with the Stephen Lewis Foundation doing HIV and AIDS work. In his local community in a volunteer capacity he has served on the boards of directors of the Stop Community Food Centre, Social Planning Toronto, and Commitment to Community focused on youth resiliency and youth development. He serves on the board of directors of the Scadding Court Community Centre, the Art Gallery of Ontario, the Harbourfront Centre, the Board of Health, Toronto Community Housing and others.
9Mr. Cressy’s ward has 202 individual Toronto Community Housing properties. As a local councilor, he deals extensively with residents and vulnerable youth who reside in Toronto Community Housing. He deals with the issue city wide of working with youth who are vulnerable to crime and violence. He was unanimously appointed Toronto’s Youth Equity Advocate by City Council. In that position, he looks at ways to address crime and violence by providing opportunities for youth to assist them in taking ownership for their actions and to transition into becoming productive and contributing members of society.
10As a result of his work Mr. Cressy is very familiar with Officer Nick Maicantis, one of the four neighbourhood officers in his ward who has worked in the Alexandra Park area for a number of years. Officer Maicantis was the officer who arrested Mr. Hassan. Mr. Cressy interacts with Officer Maicantis approximately twice a week. Mr. Cressy is aware that Officer Maicantis has engaged on a weekly basis with Mr. Hassan over the last 2 years and is prepared to personally vouch for him.
11Mr. Cressy met Mr. Hassan in December, 2015 at an event held at Scadding Community Centre to welcome Syrian refugees who had arrived that year. Mr. Hassan was a volunteer. Since that time, he has seen Mr. Hassan on approximately a weekly basis. Mr. Cressy holds his community hours in Scadding Court rather than in his office at City Hall so he is there every Friday afternoon and usually once or twice a week in addition.
12Mr. Cressy has observed consistent and deep-rooted efforts by Mr. Hassan to turn his life around. Mr. Hassan started by volunteering. By volunteering Mr. Hassan got connected to a youth employment program. Through the youth employment program, he got connected to a job whereby he works 20 hours a week at Scadding. Mr. Hassan is the coordinator of the Aquaponics program which Mr. Cressy helped set up through funding from the city. In addition to that, Mr. Hassan volunteers at Scadding.
13Aquaponics is a closed-loop self-sustaining food system in which plants and fish are grown together in tanks in a mutually beneficial relationship. The produce includes fish for food, and a variety of herbs and other greens. The fish and plants are available for purchase by the community at affordable rates and are sold to restaurants. The aquaponics project is currently showcased in the main court of Scadding Court Community Centre, providing a place for teaching and learning readily accessible to the public. He has observed Mr. Hassan run tours of the Aquaponics program for youth groups. In addition to the water management, agriculture management and maintenance of operations, Mr. Hassan coordinates the financial management with all participating restaurants.
14Mr. Hassan started to see the results of the efforts he had made. As he saw himself doing well and as being capable, he became willing to try new things. As a result of the confidence Mr. Hassan gained through his successes in volunteering and working, he entered an academic literacy program to get his GED equivalency. He finished his classification one and is working on the second.
15Just over a year ago, Mr. Cressy was involved in launching as part of the Toronto Youth Equity Strategy an initiative called the Youth TO which was a new website where youth can punch in their address and find all the services available in that area. Mr. Hassan agreed to have his story shared publicly which was an example of a message that so many youth need to hear-that if you get engaged with your community, you can turn your life around. At this event, Mr. Hassan was introduced to and had his picture taken with the mayor who was aware of both his background and his criminal charges and wanted to meet him
16Mr. Cressy testified that Mr. Hassan grew up in an environment where it was easier to succumb to crime and violence than to go to university. He made a serious mistake in deciding to possess a firearm. Although he was 21 years of age at the time, he was an immature 21 one year old who did not complete formal education. He made the hard decision to leave the life he was leading, get a job, start volunteering, go to Youth Employment Services, start an academic literacy program and turn his life around.
17Mr. Cressy observed that Mr. Hassan shares his story with others to whom it may make a difference. In the community centre, youths come in who look up to Mr. Hassan and he is an advocate for rehabilitation. He shares his story with individuals associated with gangs or youths who are susceptible to that life. There are plans for Mr. Hassan to help run initiatives for crime prevention and youth development in the Alexandra Park Community Centre, a notoriously dangerous community. If he goes to jail, the message to other youth is “don’t bother turning your life around.” The deterrence is not to crime. It is to youth who would not otherwise turn their life around. There is a message that can be sent that if you grew up in a situation where you are more likely to commit violence, there is another path. If he goes to jail, youths from areas like Alexandra Park will conclude that there is no point in trying to get out of the life of gangs and crime. They will reason: Look what Abdi Hassan did for three years and ended up in jail anyway, so why bother?
18Mr. Cressy has met Mr. Hassan’s mother and his fiancée. Mr. Hassan is open with his fiancée and she is aware of his struggles. That vulnerability is the sign of a real relationship. He is growing as a person together with someone.
19It has taken great courage for Mr. Hassan to turn his life around. Were Mr. Hassan not to go to jail, he would be out in the community telling people that they do not have to commit crimes, that there is a different path. He will, if he is allowed, prevent others from making that same mistake.
20As to how the average law abiding citizen that is concerned about firearms in the community would respond, they want to see less violence and to see people who are susceptible to violence and have made mistakes contributing to society and giving back. If Mr. Hassan receives a sentence that does not put him in prison, Mr. Cressy believes that Mr. Hassan will become one of the members of this society that we will end up looking up to.
21In all the work Mr. Cressy has done with troubled youth and in HIV and Aids centres around the world where he has seen both devastation and courage, he has never seen anybody with Mr. Hassan’s level of courage and commitment to changing his life. He has not seen anybody in his 33 years show the same conviction. That is why he came to court to testify on Mr. Hassan’s behalf.
Evidence of Kevin Lee, Executive Director of Scadding Court Community Centre
22Kevin Lee, the Executive Director of Scadding Court Community Centre came to court to testify on behalf of the accused. He gave the following testimony. He has been a social worker specializing in high risk youth for 23 years. This was his first time testifying on a person’s behalf. He has vast experience working with youth including at the York Detention Centre, St. Stephens Community House and for the last 18 years at Scadding.
23Scadding Court Community Centre has a number of programs which aim to support young persons who are serious about wanting to exit gangs and provide them alternatives. There are limited resources. Scadding is not prepared to invest in anyone just walking in. The young persons Scadding invests in have to show a commitment, be willing to upgrade their financial skills and take various workshops to develop their life skills.
24Scadding’s catalyst program hires young persons at risk, pays them and treats them as employees. In the case of Mr. Hassan, he was taught to operate and maintain the aquaponics program at Scadding. He learned how to plant, keep the chemical levels appropriate, clean the system, put kelp in, harvest the food, coordinate the invoices and deliver the food. He has been running the program for the last 1½ years. Mr. Hassan has also learned to lead tours on site to local school children.
25Mr. Hassan impressed Mr. Lee with his ability to grasp the science and chemistry concepts of aquaponics. Mr. Hassan took it upon himself to go on the internet and through his own research learn about aquaponics. He agreed to go to the learning centre at Scadding so he attends school from 9 a.m. to 1 or 2 p.m. and works in the aquaponic system in the afternoons. He is paid to work 20 hours per week. In addition, he volunteers at Scadding programs and events. Mr. Lee states that Mr. Hassan has demonstrated a capacity to change his past experiences into life learning parting points to strive for excellence at every turn of his work, community and family.
26Mr. Hassan has acted as a role model to show other vulnerable young people that there is a way to function in the community and within our society that does not involve crime and gangs. Coming from the background he comes from, he is able to act as a spokesperson to marginal people who want to change. Mr. Lee has seen Mr. Hassan develop the feeling that he is giving back to his community. Mr. Lee and the Scadding staff have invested 2 years in Mr. Hassan because his commitment has proven sincere. Mr. Lee does not lightly say that he believes the likelihood of Mr. Hassan reoffending is very low.
27Scadding is scaling up its urban food production in September, 2017 when it will be obtaining a 40 foot container for a four seasonal greenhouse to operate in a sustainable way. If Mr. Hassan remains in the community under conditions, Scadding would like to continue to work with and have him work with them.
Evidence of Officer Nikolas Maicantis
28Officer Maicantis gave the following evidence. He was Mr. Hassan’s arresting officer. He testified at trial that at the time of Mr. Hassan’s arrest, he talked to him about participating in the community youth programs put on by the community police officers in Alexandra Park. Youth workers at St. Stephens Community House had drawn his attention to Mr. Hassan and said that some of the younger at risk kids looked up to him. They thought that Mr. Hassan would be a good fit to get involved in the community youth programs. Up until that time, Officer Maicantis’ contact with him had been fairly minimal but he had seen Mr. Hassan in rap videos centred around the Project Originals gang.
29After Mr. Hassan’s arrest, he became involved at Scadding Court Community Centre where Officer Maicantis was involved in running programs such as leadership camps, physical fitness programs and a Gone Fishing program. At a welcome event for Syrian refugees, Mr. Hassan assisted as a volunteer, helping with the event. Officer Maicantis is usually at Scadding Court Community Centre every other day when he is working. He might be there 1 to 2 hours. When there is an event on, he may be there for half a day. Usually whenever Officer Maicantis is at Scadding, Mr. Hassan is there executing the Aquaponics program and helping with whatever tasks the staff ask him to do. He seems to be doing well. He has heard nothing negative about Mr. Hassan from any of the Scadding people.
30Officer Maicantis checked to see if there are any instances of him associating with anti-social elements in the community. There is no indication of any such continuing associations. He is no longer on any videos. He has not breached any conditions while on bail.
31When Officer Maicantis knew Mr. Hassan 4 years ago, he would not engage and was a little anti-social. He is now more social, very polite and courteous. He is a different person in terms of his social aspect. He has gained employment and stuck with it.
Evidence of Charmaine Flowers
32Charmaine Flowers gave the following evidence. She lives in the same building as Mr. Hassan and his mother and came forward to offer herself as a surety. She has known Mr. Hassan’s mother since 1997. Since acting as a surety for Mr. Hassan, he has never been a problem. He is very responsible. He lets her know what is going on. He gives her his work schedule. He does a lot of volunteer hours. She has met Mr. Hassan’s fiancée who she considers a responsible person and very supportive of Mr. Hassan.
Letters of support filed on Mr. Hassan’s behalf
33There were many letters of support filed on Mr. Hassan’s behalf.
34Veronica Salovatierra is a Youth Criminal Justice Coordinator at St. Stephen’s Community House. She has known and worked with Mr. Hassan for the past 7 years. She has been working in the field of Youth Justice for the past 18 years. Since Mr. Hassan was released on bail, she has never witnessed a young person make so many positive life changes in such a short amount of time. She is truly impressed with his resilience and ambition to better his future. His dedication to improving his life should be commended because he is, in her opinion, a completely different person since his arrest. In her professional opinion, Mr. Hassan does not pose a danger to the public and would not benefit in any way by being sentenced into custody. Rather, it would be a detriment to all of the hard work and accomplishments he has made in the past few years.
35Jessa Reitsma is the Learning Coordinator at the Literacy Basic Skills program at the Alexandra Park Neighbourhood Learning Centre. She has a Master’s degree in education. She states that Mr. Hassan has made steady progress in the areas of math, sciences, reading and writing that has been an inspiration for others in the class.
36Brenda Morse is the Coordinator of Childcare and Family Resource Programs at Scadding. She states that Mr. Hassan’s interactions with children are gentle and appropriate and he understands the need to model appropriate behavior and support to the children he interacts with. He is polite and courteous to the parents and staff and is positive, encouraging and empathetic.
37Mr. Mohsin Khattak is the Lead Coordinator Youth and Volunteer Services at Scadding. He has spent a considerable amount of time assessing and engaging Mr. Hassan while observing him on a daily basis. He described him as being serious about changing his life by showing up regularly to work, being engaged, being willing to take on additional tasks/duties and being willing to be coached and mentored and always ready to help with community events.
38Rebecca Keenan, Senior Manager Development and Community Engagement at Scadding, states that she has seen Mr. Hassan grow from a shy, reserved individual to a confident demonstrator of his knowledge of the aquaponics system.
39Mr. Evan Bell is a partner and North American Director with WaterFarmers. They design/build and provide technical services for the growing aquaponic and urban agriculture industries. Currently they have 18 project sites worldwide and manage approximately 200,000 square feet of aquaponic farms. They are the general contractor for the Scadding Court Community Centre aquaponics project. Mr. Hassan helped with basic construction tasks when the project was being set up. Once the farm became operational, Mr. Hassan became the dedicated farm hand/program worker whose duties include feeding fish, testing water, chemistry, seeding and tending crops, harvesting/packaging/delivery of product, record keeping and maintenance. Although he did not have an advanced science education, Mr. Hassan rapidly assimilated complex concepts crucial for success in any controlled environment agriculture system. He regularly asked insightful questions about horticulture and aquaculture and applied himself to understanding aquaponic operations. He has been a key team member in the success of the project. They currently service several high-end restaurants with a consistent crop of leafy greens and herbs produced by Mr. Hassan’s diligent efforts. He would recommend Mr. Hassan as a potential farm staff for their GTA commercial clients and is confident that he would contribute effectively.
40Mr. Ron Hey of Toronto Tilapia Hatchery and Nursery who provided fish to the Scadding aquaponics project writes about Mr. Hassan’s willingness to learn, to solve problems as they arise and to commit and keep to times and dates set. He further speaks of Mr. Hassan’s ability to communicate with other people who want to learn about aquaponics.
41Two long-time friends of Mr. Hassan provided letters of support. Ezron Apea graduated from Dalhousie University and is currently in a construction engineering program at George Brown College. Frank Wang graduated from Seneca College and York. Both state that Mr. Hassan can change the lives of people around him if he is given the chance.
Mr. Hassan’s Statement
42Mr. Hassan stated that he did not realize how dangerous a situation he put the arresting officers, the public and himself in, that he meant no harm and should have known better. He stated that the man who was arrested on June 24, 2014 was not the same man today and he will continue his path of making positive impacts in his life.
Bail Conditions
43Mr. Hassan was under full house arrest unless in the presence of his surety or someone designated in writing by his surety for 14 months and 22 days. His bail conditions were then modified so that he could work but otherwise was under full house arrest for a further 20 months and 7 days.
Crown’s Position
44The Crown submits that Mr. Hassan should receive a 3 year sentence minus 15 days of pre-trial custody on a 1 to 1.5 basis. The Crown submits that while a conditional sentence is available, it is not appropriate for this kind of serious offence. The principles of sentencing call for denunciation and deterrence. Rehabilitation cannot be ignored but is subordinate to denunciation and deterrence. No credit should be given for the period Mr. Hassan was on bail because it was not the equivalent of strict house arrest. The Crown requests a section 109 weapons prohibition for life and a DNA order.
Defence Position
45Defence counsel made the following submissions. In the exceptional circumstances of this offender, a total sentence of 2 years less a day to be served in the community with strict conditions is appropriate. Mr. Hassan should receive credit at 1.5 times for 15 days of pre-trial custody making a total credit of 22 days. If the Crown’s position of a 3 year sentence is found to be appropriate, a further credit is sought of 25% of the total period of his bail restrictions. (34 months and 29 days x 25% = 9 months credit).
Analysis
Aggravating Factors
46Mr. Hassan possessed an unloaded firearm with ammunition in a separate pocket while driving around on public streets in Toronto in a vehicle, creating a dangerous situation for members of the public, occupants of the vehicle and the police.
47He was on pre-trial release on a prior offence at the time that this offence occurred.
Mitigating Factors
48Mr. Hassan has a minimal criminal record.
49He has been on bail for approximately 3 years without incident.
50He was youthful at the time of the offence and is now 24 years of age.
51He has a highly supportive family and support group evidenced by the number of people who attended court and who wrote letters of support on his behalf.
52Mr. Hassan has taken exemplary steps to rehabilitate himself since his arrest. He is an advocate and a role model to demonstrate to other vulnerable young people that there is a way to function in the community and within our society that does not involve crime and gangs.
53He received a highly favourable pre-sentence report.
Non-Mitigating Factors
54This was not a guilty plea. Mr. Hassan sought a determination by the court of whether there had been reasonable and probable grounds to search him. When that application was unsuccessful, the case proceeded on agreed facts.
General Sentencing Principles
55The Criminal Code sets out the purpose and the principles of sentencing. I refer to section 718 and 718.1 and the additional principles set out in 718.2 which I am guided by. Generally speaking in determining the proper sentence, it is my obligation to place appropriate emphasis on principles of general and specific deterrence and denunciation in addition to rehabilitation of the offender. In sentencing the court must strive to contribute to respect for the law and the maintenance of a just, peaceful and safe society.
Appropriate Sentence for Firearms Offences
56It is well-established that when it comes to possession of restricted firearms, the overriding principles of sentencing must be denunciation and deterrence. While there is no longer any three-year mandatory minimum sentence of imprisonment for these offences, they remain very serious and almost always require the imposition of a substantial period of imprisonment, even for first offenders.
57Where the offender is an outlaw who carries a loaded firearm as a tool of his or her trade, a penitentiary sentence of 3 or more years is generally appropriate: R. v. Nur 2015 SCC 15, [2015] 1 S.C.R. 773, para.82, adopting the language of Doherty J.A. in the Court of Appeal decision R. v. Nur, 2013 ONCA 677, 117 O.R.(3d) 401 at paragraphs 51 and 52. Mr. Hassan’s crimes are “true crimes” in the sense meant by Doherty J.A. in para 52 of Nur, supra, (C.A.).
58The imposition of sentence is very much a fact-driven exercise. Every case must be decided with regard to the unique circumstances of the case. There are exceptional aspects in this case not present in other cases.
59Officer Maicantis, Mr. Hassan’s arresting officer, attended the sentencing hearing to testify on Mr. Hassan’s behalf. He testified that Mr. Hassan took him up on his suggestion made at the time of his arrest that Mr. Hassan participate in the community youth programs which then led to Mr. Hassan getting employment and continued volunteering. Officer Maicantis sees Mr. Hassan every other day at Scadding and attested to the changes in him from the time of his arrest. Mr. Hassan is doing well. There are no instances of him associating with anti-social elements.
60The probation and parole officer who supervised Mr. Hassan’s probation from a 2015 conviction and wrote the current presentence report concluded that Mr. Hassan started a journey over the past 18 months which has culminated in one of the most complete achievements in rehabilitation that he has witnessed in recent years.
61Kevin Lee, the Executive Director of Scadding, with 23 years of experience specializing in high risk youth, has never come to court before to testify on behalf of anyone. Mr. Hassan has impressed Mr. Lee. Mr. Lee and Scadding have invested 2 years in Mr. Hassan because his commitment has proven sincere. Mr. Lee does not lightly say that he believes the likelihood of Mr. Hassan reoffending is very low. He attests to Scadding’s intention to continue Mr. Hassan’s employment as a staff member if he remains in the community under conditions.
62The letters filed on behalf of Mr. Hassan on the sentencing hearing (Exhibit 2) are extraordinary. They attest to the exceptional changes Mr. Hassan has made, to his being a completely different person since his arrest, to the skills he has learned and to his success in learning the growing field of urban agriculture. The authors of these letters are aware that youth have a tendency to ask for help/support when they have been charged with an offence but may not be too serious about changing their lifestyle. Officer Maicantis has noted that in most cases when he makes an arrest, he sees the same individuals back on the streets involved in similar negative behaviour. Mr. Hassan has impressed a whole host of people, not only those working with youth at risk but potential employers. He is now a valued employee at Scadding and the coordinator in charge of the Aquaponics program.
63What makes this case singular is not only Mr. Hassan’s rehabilitation and the number of very experienced people who have concluded and are prepared to say that he is not a danger to the public and is very unlikely to reoffend. What distinguishes this case is that Mr. Hassan has been able to learn from his past experiences and act as a positive role model for at risk youth. He has gone from someone who associates and identifies with a gang and gang culture to someone who is a willing and effective communicator of the message that there is another path than being a gang member and a life of crime. Coming from the background he comes from, he is able to act as a spokesperson and mentor to marginal people who want to change. The people working with at risk youth recognize that there is a greater chance of the young people they are trying to influence getting the message from Mr. Hassan than from themselves.
64In my experience as a judge of this Court I have never seen such a dramatic and sustained effort not only of personal rehabilitation but also of a commitment to helping youths who grew up in the kind of community Mr. Hassan grew up in to escape the strong pull of a life of gangs and crime.
65After weighing all of the factors, both aggravating and mitigating, I have concluded that the interests of justice would be served by the imposition of a reformatory sentence in the upper range.
Conditional Sentence
66S.742.1 of the Criminal Code is the statutory authority for the imposition of a conditional sentence of imprisonment. It provides as follows:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house), and
(xi) section 435 (arson for fraudulent purpose).
67The Crown submits that while a conditional sentence is available for the offences of which Mr. Hassan has been convicted, it is not an appropriate sentence.
68Highly experienced social workers who have been working closely with Mr. Hassan since his arrest have opined that the likelihood of him reoffending is very low. I accept that evidence. I take into account the length of time Mr. Hassan was on bail without incident. I accept Officer Maicantis’ evidence that Mr. Hassan no longer seems to be associating with anti-social elements in the community or involved in a life of crime. I am satisfied that Mr. Hassan’s service of his sentence in the community would not endanger the safety of the community. Having concluded that a sentence not greater than two years less a day is the appropriate sentence, the S.742.1 prerequisites are met.
69The fact that a conditional sentence is available in this case does not absolutely entitle Mr. Hassan to a conditional sentence. The Court has a discretion to determine whether such a disposition is appropriate in the particular circumstance of this case which must be exercised judicially. The principles and objectives of sentencing must be brought to bear on the decision whether or not to impose a conditional sentence.
70In R. v. J.W. 1997 ONCA 3294, [1997] O.J.NO.1380 at para. 35, Rosenberg J.A. notes that the fact that Parliament has specifically referred to only one factor, that serving the sentence in the community would not endanger the safety of the community, must mean that this factor is entitled to more weight than certain other factors of more general application. He notes at para. 38 that conditional sentences are not to be reserved solely for first offenders of whom it can be safely said they will never reoffend whatever the sentence imposed by the court.
71I accept that Mr. Hassan appears to be remorseful and is not the person he was at the time of the offences. If a conditional sentence is imposed, Mr. Hassan will be under the scrutiny of a conditional sentence supervisor throughout the sentence and the efficacy of the sentence depends on his amenability to this supervision. In this regard, I take into account the very positive working relationship he had with his bail supervisor and the positive presentence report. I am satisfied that he is amenable to supervision.
72I accept that denunciation and deterrence are the overriding sentencing objectives in this case. The question is whether it is necessary to impose a term of imprisonment as the only route to achieving those objectives. Chief Justice Lamer in the seminal case on conditional sentences, namely R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, held that conditional sentences can achieve both of those objectives.
73A conditional sentence is a form of “imprisonment” that does not require incarceration in a penal institution. It is a sentence that, through the imposition of conditions, places restraints on the offender’s liberty without completely separating the offender from the community at large.
74Mr. Cressy was a very impressive witness. I found his view compelling that if Mr. Hassan is required to serve his sentence in jail, the message to other youth at risk will be to discourage them from attempting the hard and necessary changes to get out of life of crime. I accept Mr. Cressy’s evidence that it has taken great courage for Mr. Hassan to turn his life around and that Mr. Hassan will, if he is allowed, be instrumental in preventing others from making the same mistakes he made. However compelling Mr. Cressy’s views may be, I nevertheless instruct myself that they must not be allowed to trump the overriding sentencing principles of denunciation and deterrence.
75I find that Mr. Hassan, if he is allowed to serve his sentence in the community, has the ability and the proven resolve to act as a positive role model and to influence youths at risk to get out of a life of crime.
76It is unusual for there to be community support for a person found to be out in public with a gun and ammunition to serve their sentence out in the community. In this case, there is community support from Mr. Hassan’s city councillor, from the staff at Scadding Court Community Centre, St. Stephen’s Community House, Mr. Hassan’s surety, friends and family that he be returned to his community to serve his sentence.
77In addition, denunciation and deterrence are not the only objectives of sentencing. Another objective is rehabilitation. While people convicted of offences must be appropriately punished, the imposition of a punishment that inhibits or detracts from a person's ability to recover from the mistakes that they have made does not promote the long term interests either of the person or of our society.
78In my view, condemnation of Mr. Hassan’s conduct in this case can be communicated through the imposition of punitive conditions in a conditional sentence order that are sufficiently restrictive of his liberty to allow it to replace incarceration, including the onerous condition of house arrest. If Mr. Hassan breaches the conditions of the conditional order, there is a presumption that he will serve the balance of the sentence in prison.
79I am satisfied that a conditional sentence would be consistent with the fundamental principles and purposes of sentencing in the Criminal Code and is appropriate in this case.
Conclusion
80In determining the appropriate length of the conditional sentence, I take into account that Mr. Hassan spent the equivalent of 22 days in pre-trial detention and 35 months on strict bail conditions. I find a conditional sentence of 2 years to be a fit and just sentence. While this is a global sentence, for purposes of clarity, the 2 years shall be applied to Count 1 and concurrent to Counts 2, 4 and 8. A 6 month concurrent sentence shall apply to Count 3 (carry ammunition in a careless manner)
81Section 742.3 of the Criminal Code enumerates both compulsory and optional conditions in a conditional sentence order. The following conditions are imposed:
Mandatory Terms
(1) Keep the peace and be of good behavior.
(2) Appear before the Court when required to do so by the Court.
(3) Report in person within 2 working days to a supervisor and thereafter when required by the supervisor and in the manner directed by the supervisor.
(4) Remain in the Province of Ontario unless written permission to go outside the Province is obtained from the Court or the supervisor.
(5) Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation.
Specific Conditions
(6) During the entire term of the Conditional Sentence Order, Mr. Hassan shall not be outside his residence except:
To attend school
To attend work
To perform community service
To attend medical appointments or medical emergencies involving himself or his mother
To shop for necessities for one three hour period per week
Any other reason deemed appropriate by his supervisor
All exceptions above include travel immediately to and from. All exceptions must be identified in a written letter of permission approved by his supervisor (except emergencies).
(7) Mr. Hassan is to perform 200 hours of community service at a rate and schedule approved by his supervisor.
Ancillary Orders
82In addition, the following ancillary orders shall issue:
(a) Pursuant to s.487.051(3) of the Criminal Code, an order in Form 5.04 to have samples of bodily substances taken for purposes of forensic DNA analysis;
(b) Lifetime weapons prohibition order under s.109 of the Criminal Code;
(c) Forfeiture order pursuant to s.491(1) of the Criminal Code with respect to the firearm and ammunition.
Released: July 26, 2017 _________________________ Backhouse, J.
CITATION: R. v. Hassan, 2017 ONSC 4570 COURT FILE NO.: CR-16-10000149-0000 DATE: 20170726
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ABDI HASSAN
REASONS FOR SENTENCING of backhouse j.
delivered July 26 , 2017
Backhouse, J.
Released: July 26, 2017
