DATE: 20180613
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Carla Agatiello for the Crown
- and -
LIBAN DOUALE
Stefan Dimitrijevic for Liban Douale
HEARD: June 5, 2018
REASONS FOR SENTENCE
CORRICK J. (orally)
Introduction
[1] Following a trial, a jury found Mr. Douale guilty of the following offences:
▪ possession of a prohibited firearm without holding a licence, contrary to s. 91(1) of the Criminal Code
▪ possession of a prohibited firearm knowing he was not the holder of a licence, contrary to s. 92(1) of the Criminal Code
▪ possession of a loaded prohibited firearm without a licence, contrary to s. 95(1) of the Criminal Code
[2] The jury found Mr. Douale not guilty of two counts of robbery and one count of pointing a firearm.
[3] Following the jury verdict, Mr. Douale pleaded guilty to one count of possession of a firearm while prohibited by reason of a court order, contrary to s. 117.01(1) of the Criminal Code.
[4] Mr. Douale appears before me today for sentencing on all counts.
Circumstances of the Offences
[5] On March 22, 2016, armed with a loaded gun, Mr. Douale took the Toronto subway to a club to sell someone cocaine. He had not previously met this particular customer, so he carried his gun as a precaution. Before meeting the person, he took the safety off the gun. He left the club just before 2:00 a.m. to catch the subway home. The loaded gun, with the safety off, was in his waistband. On his way to the subway, he became involved in an altercation with two men on the street. During the altercation, Mr. Douale pulled the gun out from his waistband in an effort to scare off the men. The three men violently struggled for control of the gun. During the struggle, the gun was waved around. A crowd of people gathered on the street nearby.
[6] Police officers arrived on the scene. They ordered Mr. Douale to drop the gun. He refused. Mr. Douale was eventually tackled to the ground and a police officer forcibly removed the gun from his hand.
[7] At the time of the offences, Mr. Douale was subject to an order made pursuant to s. 109 of the Criminal Code, prohibiting him from possessing any weapons.
Circumstances of the Offender
[8] Mr. Douale is 32 years of age. At the time of these offences, he was almost 30. He and his family fled the civil war in Somalia, and came to Canada when he was three years old. He is a Canadian citizen. He has a high school education. He has worked as a labourer, most recently for a temp agency. At the time of the offences, he was supporting himself selling drugs. He intends to take an HVAC program at college when he is released from prison.
[9] Mr. Douale continues to have the support of his family. He intends to live with his parents when he is released. His mother attended court on a number of days throughout his trial. His father has significant health problems, including late stage cancer.
[10] Mr. Douale has an unenviable criminal record. It begins in 2003, when he was 17 years old, and continues essentially uninterrupted until 2012. The offences before the court today occurred in 2016. Mr. Douale has a history of repeated breaches of court orders. He has been convicted of nine counts of breaching a court order. The particulars of his record are as follows.
2003-05-29
Youth Court
Break and enter; fail to comply with undertaking; obstruct peace officer
12 months probation on each charge concurrent
2004-08-05
Youth Court
Assault
14 days and 7 days under supervision in the community; 18 months probation
2004-08-24
Possession Schedule I substance
Suspended sentence, 12 months probation; 6 days pre-sentence custody
2004-11-26
Fail to comply recognizance x2; fail to comply probation
21 days time served count 1; 1 day on counts 2 and 3 concurrent
2005-02-10
Fail to comply recognizance
2 years probation
2005-08-15
Prowl by night; obstruct peace officer; fail to comply probation
1 day concurrent on all counts
2005-09-07
Fail to comply recognizance; obstruct peace officer
1 day + 35 days pre-sentence custody; 12 months probation
2005-09-08
Attempt break and enter; fail to comply recognizance
1 day +26 days pre-sentence custody; 18 months probation
2007-07-16
Possession marijuana
$50 fine
2008-05-28
Traffic Schedule I substance
1 day + 3 months, 2 days pre-sentence custody
2008-12-29
Obstruct peace officer
1 day + 34 days pre-sentence custody
2009-07-14
Possession cocaine
$1,000 fine, 12 months probation + 22 days pre-sentence custody
2010-05-12
Obstruct peace officer; fail to comply recognizance
1 day on each charge concurrent + 45 days pre-sentence custody
2010-06-03
Possession marijuana
Suspended sentence, 6 months probation
2011-06-23
Possession cocaine for the purpose of trafficking
3 months, 21 days + 47 days pre-sentence custody
2012-05-08
Possession of Schedule I substance for the purpose of trafficking; assault with intent to resist arrest
3 months, 15 days + credit for 6 months, 15 days pre-sentence custody on each charge concurrent; s. 109 order
Legal Parameters
[11] Possession of a loaded prohibited firearm is punishable by a maximum of ten years in prison.
[12] Possession of a firearm contrary to a prohibition order is also punishable by a maximum of ten years in prison. It is noteworthy that this is the only offence in the Criminal Code related to the breach of a court order that is punishable by more than two years imprisonment when prosecuted by indictment. This is an indication of the seriousness with which Parliament regards the breach of weapons prohibition orders.
Positions of the Parties
[13] Ms. Agatiello submits that a total sentence of between seven and eight years in prison before credit for pre-sentence custody is a fit disposition, given the significant aggravating factors in this case and the need for an exemplary sentence to achieve the sentencing objectives of deterrence and denunciation.
[14] She also seeks a number of ancillary orders – a DNA order, a weapons prohibition order for life, and an order forfeiting the gun seized from Mr. Douale.
[15] Mr. Dimitrijevic submits that a total sentence of 3½ years before credit for pre-sentence custody is the appropriate disposition. In his submission, the objectives of deterrence and denunciation have already been met by the length of time Mr. Douale has spent in pre-sentence custody. A seven or eight-year prison term would be crushing, in his submission, and is not in line with sentences imposed on similar offenders in similar circumstances.
[16] Counsel agree that a conditional stay should be entered on the offence contrary to s. 91(1), pursuant to the principle against multiple convictions.
Governing Sentencing Principles
[17] In determining a fit sentence for Mr. Douale, I am governed by the sentencing principles set out in the Criminal Code.
[18] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:
denouncing unlawful conduct,
deterring the offender and others from committing crimes,
separating offenders from society where necessary,
assisting in the rehabilitation of the offender,
providing reparations for harm done to the victim or to the community,
promoting a sense of responsibility in the offender, and
acknowledging the harm done to victims and the community.
[19] The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.
[20] I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:
❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
❏ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Sentences Imposed in Other Cases
[21] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.
[22] Mr. Dimitrijevic and Ms. Agatiello have each provided more than twenty cases in support of their respective positions on the appropriate sentence. A careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Douale within that range.
[23] It is clear from the jurisprudence that a conviction for possession of a loaded firearm will attract a substantial penitentiary term. The danger that firearms pose to the safety and security of our community demands an emphasis on denunciation and deterrence.
[24] Mr. Dimitrijevic relies on the decision of R. v. Borde[^1] in support of his position that a first penitentiary sentence should be as short as possible, and that its length should not be determined solely by the objectives of denunciation and deterrence. However, the Court of Appeal in Borde was dealing with an 18-year-old facing his first adult sentence and his first penitentiary term. Mr. Douale is in a very different position. Although he is facing his first penitentiary sentence, it is far from his first adult sentence, and he is no longer a youth, but a mature recidivist.
[25] None of the decisions referred to by Mr. Dimitrijevic involve the display or use of a loaded firearm on a public street.[^2] This is a significant aggravating factor in this case, and distinguishes it from the cases referred to by Mr. Dimitrijevic. A review of the decisions referred to by Mr. Dimitrijevic reveals that the range of sentence for possession of a loaded firearm, when there has been no public display of the firearm, is between two and four years.
[26] Ms. Agatiello has referred me to a number of cases in support of her submission that denunciation and deterrence are the paramount sentencing objectives to be met in this case. This principle is well established in our jurisprudence. As Justice Armstrong wrote in R. v. Danvers,[^3] at para. 78, “… 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.”
[27] In R. v. Elie,[^4] Justice Goldstein sentenced a 22-year-old to 5½ years for possession of a loaded firearm and breach of a weapons prohibition order. The offender had pleaded guilty. He had a criminal record as a youth that included firearm offences. Justice Goldstein noted as an aggravating factor that the offender had carried the firearm on the TTC, putting many members of the public at risk.
[28] In R. v. Ellis,[^5] the offender was sentenced to seven years in prison for a number of firearm offences, including possession of a loaded prohibited firearm and breach of a weapons prohibition order. The loaded firearm was found in the offender’s car. The offender was 32 years of age with a record for firearm offences.
[29] In R. v. Mark,[^6] the offender was sentenced to four years in prison for possession of a loaded prohibited firearm, and possession of cocaine and marijuana for the purpose of trafficking. The offender was a 25-year-old first offender with a very positive pre-sentence report. He was in possession of the loaded firearm while engaged in the sale of drugs.
[30] The Ontario Court of Appeal upheld a sentence of seven years for possession of a loaded prohibited firearm in R. v. Charles.[^7] The offender was in possession of the firearm in a bedroom of a rooming house. He had an extensive criminal record, including multiple prior convictions related to firearms. He was in breach of two weapons prohibition orders.
[31] In R. v. Crevier,[^8] the Court of Appeal upheld a sentence of four years for possession of a loaded firearm and two years consecutive for possession of cocaine for the purpose of trafficking. The offender had a previous record that included convictions for drug trafficking. The court confirmed what it had earlier decided in R. v. Wong[^9] that the combination of drugs and firearms is a serious aggravating factor on sentencing.
Aggravating and Mitigating Circumstances
[32] I turn now to consider the aggravating and mitigating circumstances.
[33] First the aggravating factors.
The circumstances in which Mr. Douale possessed the gun are extremely serious. He carried it in his waistband on the TTC, in a club, and on a public street. He put the safety of many members of the community at risk.
On his own evidence, Mr. Douale instigated a physical confrontation with a man on the street, knowing that he had a loaded gun, ready to fire, in his waistband. Mr. Douale walked past Mr. Hernandez after the two of them had a stare down. He turned around to confront Mr. Hernandez after hearing Mr. Hernandez say something. He could have simply ignored Mr. Hernandez, and continued on his way to the subway. This lack of judgment, fuelled by nothing more than alcohol, threatened the lives of many people that night.
Mr. Douale carried this loaded gun as a tool of his drug-trafficking business. He testified that drug selling was a “shady business” and that “anything can happen.” He carried the gun because he, “wanted to be safe.” He made it clear that he would use the gun to protect himself. What he did that night to keep himself safe made the rest of the community unsafe. As the Court of Appeal noted in Wong, at para. 11, “the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community.”
Mr. Douale’s criminal behaviour, as evidenced by his criminal record, began when he was 17 years old and has continued as an adult. He has demonstrated a repeated disregard for court orders. As I have already indicated, he has nine convictions for failure to comply with judicial interim release orders and probation orders.
When ordered to drop the gun by police, Mr. Douale refused. He did not relinquish the gun, but had to have it pried out of his hands by police.
[34] There is very little to be said in mitigation. Mr. Douale is fortunate to continue to have the support of his family. There is a four-year gap in his criminal record between the last entry in 2012 and the commission of these offences.
[35] Mr. Douale was willing to accept responsibility for these offences at an earlier stage of these proceeding. Mr. Dimitrijevic submitted that Mr. Douale had indicated in December 2016 that he was willing to plead guilty to the firearm offences. The sticking point was that he was not willing to plead guilty to the robbery offences. The jury acquitted Mr. Douale of the robbery offences.
Determination of a Fit Sentence
[36] Mr. Douale’s actions of carrying a loaded gun in his waistband through the streets of Toronto were deliberate. There is only one purpose for carrying a loaded handgun in one’s waistband – to have it easily accessible to threaten or cause death. Mr. Douale chose to deliberately engage with Mr. Hernandez on the street. His degree of responsibility for these offences is high. He engaged in extremely dangerous conduct that risked the lives of members of the public and police officers. It is fortunate that no one was shot that night.
[37] In the circumstances of this case, the protection of the public, denunciation, and deterrence, are of paramount importance.
[38] As Justice Doherty indicated in R. v. Nur, “Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”[^10] This does not mean, however, that rehabilitation is to be ignored.
[39] In my view, the sentence proposed by Ms. Agatiello is too harsh, and does not adequately address rehabilitation. On the other hand, the disposition proposed by Mr. Dimitrijevic does not adequately address the gravity of these offences, and Mr. Douale’s persistent disregard for court orders.
[40] Mr. Douale is a repeat offender. He has not been deterred by previous community supervision orders, probation orders or weapons prohibition orders. Accordingly, before crediting him for the time he has spent in harsh conditions in pre-sentence custody, I am of the view that a total sentence of six years is required to adequately address the sentencing principles of deterrence and denunciation.
[41] A sentence of six years in custody for Mr. Douale properly reflects the community’s abhorrence of the prevalence and use of firearms in our city. It serves as a deterrent to others who may be contemplating using firearms to protect themselves or to intimidate others. It also recognizes that this is Mr. Douale’s first penitentiary sentence, his potential for rehabilitation, and the support of his family.
[42] Mr. Douale will be sentenced to five years on Count 8, possession of a loaded prohibited firearm. He will be sentenced to five years on Count 7, possession of a firearm knowing he was not the holder of a licence, to be served concurrently.
[43] With respect to the conviction for possession of a firearm in breach of a prohibition order, a consecutive sentence must be imposed. The intentional violation of a court order that is made to protect the public must attract additional sanctions. Given Mr. Douale’s history of repeatedly breaching court orders, he will be sentenced to 12 months on that count consecutive to the sentence imposed on Count 7 and on Count 8.
[44] As agreed, the conviction on Count 6 will be conditionally stayed.
Credit for Pre-Sentence Custody
[45] Mr. Douale will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers.[^11] Mr. Douale has been in custody since his arrest on March 22, 2016 – 814 days. Enhanced at 1.5 days for each day spent in pre-sentence custody, he will be given credit for 1,221 days or 40 months.
[46] In certain circumstances, mitigation in excess of 1.5 days may be appropriate when an offender is subjected to particularly harsh conditions during pre-sentence incarceration. The court must consider the conditions of the pre-sentence custody and the impact of those conditions on the offender.[^12]
[47] Mr. Douale was incarcerated at the Toronto East Detention Centre for 574 nights. He was triple bunked for 207 of those nights, and was sometimes required to sleep on the floor. He was offered fresh air in the yard on only 31% of the days he spent in that institution. While incarcerated, he was subjected to 180 full and partial lockdowns, during which his ability to leave his cell, take a shower, and have visits from his family was significantly curtailed.
[48] Mr. Dimitrijevic has referred me to the United Nations’ Standard Minimum Rules for the Treatment of Prisoners.[^13] The conditions to which Mr. Douale has been subject violate Rules 9 and 21.
[49] Rule 9 provides that where sleeping accommodation is in individual cells, each prisoner shall occupy by night a cell by himself. As I indicated, Mr. Douale was triple bunked 36% of the time he spent at the Toronto East Detention Centre.
[50] Rule 21 provides that every prisoner shall have at least one hour of suitable exercise in the open air daily. Mr. Douale was denied access to fresh air for over one-third of the time he was in the Toronto East Detention Centre.
[51] I echo the comments of Justice Forestell in R. v. Inniss,[^14] that, “it is shocking that detention centres in Toronto in 2017 [now 2018] are consistently failing to meet minimum standards established by the United Nations in the 1950’s.”
[52] Mr. Douale filed an affidavit outlining the adverse effects these conditions have had on his physical and emotional well-being.
[53] I am satisfied that the conditions of Mr. Douale’s pre-sentence custody have been particularly harsh. I will credit Mr. Douale nine months as a result.
Conclusion
[54] In conclusion, Mr. Douale is sentenced to a global sentence of six years in custody less 40 months credit for the time he has served in pre-sentence custody and less a further nine months for the harsh conditions he has endured during that time.
[55] When the credit is deducted from the sentence, Mr. Douale, you are required to serve a further 23 months.
Ancillary Orders
[56] I also make the following ancillary orders.
[57] Mr. Douale will be subject to a weapons prohibition order for life pursuant to s. 109 of the Criminal Code. The gun will be forfeited to the Crown pursuant to s. 491(1) of the Criminal Code. Finally, I make a DNA order pursuant to s. 487.051 of the Criminal Code authorizing the taking of a DNA sample from Mr. Douale.
Corrick J.
Released: June 13, 2018
DATE: 20180613
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LIBAN DOUALE
REASONS FOR sentence
Corrick J.
Released: June 13, 2018
[^1]: 2003 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.)
[^2]: For example, R. v. Lawes 2007 ONCA 10; R. v. Byfield 2013 ONCA 420l; R. v. Prosser 2016 ONCA 467; R. v. Truong 2010 ONSC 7251; R. v. Johnson 2013 ONSC 4217; R. v. Browne 2014 ONSC 4217; R. v. McKenzie 2016 ONSC 5025; R. v. Shomonov 2016 ONSC 4015.
[^3]: 2005 30044 (ON CA), [2005] O.J. No. 3532 (Ont. C.A.)
[^4]: 2015 ONSC 300
[^5]: 2013 ONSC 3092
[^6]: 2018 ONSC 447
[^7]: 2013 ONCA 681
[^8]: 2015 ONCA 619
[^9]: 2012 ONCA 767
[^10]: 2013 ONCA 677, at para. 206
[^11]: 2014 SCC 26
[^12]: See R. v. Duncan, 2016 ONCA 754
[^13]: Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
[^14]: 2017 ONSC 2779, at para. 38