Her Majesty the Queen v. Farzana Qureshi, 2019 ONSC 162
Court File No.: CR-16-40000615-0000 Date: 2019-01-08 Ontario Superior Court of Justice
Between: Her Majesty the Queen Susan Kim, for the Crown
And: Farzana Qureshi Katie Scott, for the Defendant
Heard: October 2, 2018, at Toronto, Ontario
Reasons for Sentence Michael G. Quigley J.
Overview
[1] On March 28, 2018, a jury convicted Farzana Qureshi of a number of drug and firearms-related offences. Ms. Qureshi pleaded guilty to three of the drug-related charges at the commencement of the trial. The jury found her guilty on the remaining charges. The firearms offences are punishable by a maximum of 10 years in jail, while the drug offences are punishable by a maximum of life imprisonment. As such, a conditional sentence is not available in this case. Neither can Ms. Qureshi’s pre-sentence custody credit be applied to bring her sentence below two years, with the balance of the sentence to be served conditionally; s. 742.1 of the Criminal Code [^1] precludes a conditional sentence of imprisonment from being available to a defendant who otherwise warrants a penitentiary sentence solely because of the time the defendant has spent in predisposition custody. [^2]
[2] Thus, the issue on this sentencing hearing is the fit sentence for this youthful but repeat offender who has been convicted of these very serious crimes, but who also appears to have turned her life around and is well on the road to rehabilitation according to one of the most positive Pre-Sentence Reports I have ever read.
Circumstances of the Offences
[3] Between February 19, 2015 and June 4, 2015, under Project Pharaoh, the Toronto Police Service conducted a judicially authorized wiretap investigation on certain individuals in southern Ontario. Many private communications of various parties were intercepted. One of them was the defendant, Farzana Qureshi, whose calls and SMS text messages were intercepted on the phone line identified as 289-921-7476. The audio and printed transcripts of those intercepted communications, and the record of Ms. Qureshi’s text messages, provided the bulk of the evidence adduced at trial.
[4] A search and seizure was conducted on June 4, 2015 at 5 Greystone Walk Drive, Unit 113. Upon entry, officers found and arrested Ms. Qureshi and A.M. [^3] in bed inside the den. They searched a white Mercedes with Ontario plate BNCK 943 found in the parking garage of the building, which contained documents that identified the vehicle as belonging to Ms. Qureshi.
[5] Inside the apartment, officers located and seized the cell phones that had been used for the intercepted wiretap communications, as well as numerous items and documents that appeared to belong to Ms. Qureshi, including her licence, keys and two bins containing her clothing. Inside one bin, they also found sets of digital scales and drug packaging paraphernalia. Officers later found 43.19 grams of cocaine in the kitchen and 28.28 grams of boric acid, which is used as a cutting agent.
[6] The police proved the lines for the seized cell phones. They determined that the 289-921-7476 phone line was associated to Ms. Qureshi, and the other two phones were associated with A.M. Other documentation found in the apartment established Ms. Qureshi’s connection to that location.
[7] Ms. Qureshi was charged in an eight-count indictment with the following charges. She pleaded guilty to Counts 3, 4 and 5:
(i) Count 1: Conspiracy with A.M., David Barski and/or another person or persons to traffic in weapons; (ii) Count 2: Trafficking in one firearm; (iii) Count 3: Conspiracy with Danny Grandison and/or others to traffic in cocaine; (iv) Count 4: Conspiracy with Anne-Marie Maunder and/or another person or persons to traffic in cocaine; (v) Count 5: Trafficking in cocaine; (vi) Count 6: Possession of monies less than $5,000 derived from the commission of the indictable offence of trafficking in cocaine (the Brantford charge); (vii) Count 7: Possession of cocaine for the purposes of trafficking; and (viii) Count 8: A second count of possession of monies less than $5,000 derived from the commission of an indictable offence.
[8] In determining the facts that must have been found by the jury in reaching the verdicts they did on the remaining charges (Counts 1, 2, 6, 7 and 8), I am required to apply the principles in paras. 17-18 of R. v. Ferguson [^4].
[9] The case law requires that I make the findings of fact that are the minimum necessary to ground the jury’s verdict. Apart from the core findings necessary to support the elements of the drug and firearms charges on which the jury convicted Ms. Qureshi, if there is a choice between a finding that would be regarded as aggravating and therefore in favour the Crown, as compared with one that would be mitigating and in favour of the accused, before making an aggravating non-core finding of fact, I must be satisfied beyond a reasonable doubt that the aggravating fact is made out. For mitigating non-core findings of fact, the standard of proof is on a balance of probabilities. The case law suggests that where facts are contested, it is the fact that is more favourable to the offender that must be found. [^5]
[10] Ms. Qureshi admitted in her evidence that she was a drug dealer and that she conspired to and did traffic in cocaine. She was charged in Count 7 with possession of cocaine for the purpose of trafficking. In finding her guilty of that offence, the jury must have found that Ms. Qureshi was in knowing possession of the cocaine found at the Greystone Walk Drive apartment, and that she possessed it for the purpose of trafficking in it. In reaching this conclusion, the jury would also have taken account of the fact that Ms. Qureshi was not herself a cocaine user. On her own evidence, the jury must have concluded that the only reason Ms. Qureshi possessed the cocaine was to traffic in it.
[11] Count 6 related not only to the possession of a drug debt of approximately $1,800 claimed to be due to Ms. Qureshi from Anne-Marie Maunder who resided in Brantford, but also related to joint possession of the $310 that A.M. picked up from Ms. Maunder on May 2, 2015. Ms. Maunder was one of Ms. Qureshi’s cocaine customers and was also a cocaine user. The wiretap intercepts showed that over time, Ms. Maunder incurred a debt to Ms. Qureshi as a result of Ms. Qureshi fronting drugs to her of three grams and up.
[12] Count 8 relates to the cash in the amount of $1,250.00 in Canadian currency that was found in a set of plastic drawers located by Officer Quinn at the foot of the bed in the den of the Greystone Walk Drive apartment, the bedroom that Ms. Qureshi acknowledged was the one she used in that apartment. In the same set of drawers, police located a passport and other documentation in her name. Count 8 alleged that these were monies derived by Ms. Qureshi from her admitted occupation as a cocaine dealer.
[13] Having found Ms. Qureshi guilty of Counts 6 and 8, it is plain that the jury found that Ms. Qureshi was in knowing possession of those monies and that they had been obtained by or derived from her criminal activity as a drug dealer.
[14] Turning to Counts 1 and 2, Ms. Qureshi was charged with conspiracy to traffic in weapons and with trafficking in a firearm by offering it for sale.
[15] Based on the wiretap evidence and the expert’s evidence regarding coded language, in finding Ms. Qureshi guilty of conspiracy to traffic in weapons, and despite her denial, the jury found a conspiracy between two or more persons to commit the indictable offence of trafficking in weapons, and that Ms. Qureshi was a member of that conspiracy. It can reasonably be concluded that they regarded A.M. and/or David Barski to be the other members of that conspiracy.
[16] In finding Ms. Qureshi guilty of trafficking in a firearm, the jury must have found that Ms. Qureshi “knowingly and intentionally trafficked in a firearm by offering it for sale.” However, it is important in the context of this case to remember that a person may be found guilty of offering to traffic in a firearm, even if she does not have possession of the weapon at the time of the offer, or even the capacity to carry out the offer.
[17] The Crown submitted that the wiretap evidence established that Ms. Qureshi offered a firearm for sale based on expert opinion evidence of Detective Sergeant Horner relative to the meaning of words, slang and coded language used by Ms. Qureshi relative to the proposed sale of “Jordans”, a “necklace” and “shoes.” The better question, however, one that informs the degree of aggravation and the gravamen of the offence, is whether Ms. Qureshi ever actually had access to a firearm, or whether her offer to sell a firearm was little more than hollow. I will address this issue in the analysis that follows.
Circumstances of the Offender
[18] Ms. Qureshi comes before me for sentencing as a 31-year-old woman. She has an extensive criminal record. This record shows that Ms. Qureshi had a lot of issues while she was a young person up to her early and mid-twenties. Her antecedents as an adult include drug offences, obstructing and assaulting police, a firearm or ammunition possession conviction eight years ago in 2010 and four instances of failure to comply with terms of release. Her Youth Record included all of these as well, other than the firearms offence, as well as two convictions for theft under $5,000. Plainly, her prior criminal record is significant.
[19] But as with most criminal records, it requires context to understand. Ms. Qureshi did not have her biological father in her life. She was raised by her mother who was also absent at times for the purposes of employment, not out of want, but rather out of need to support the family. Ms. Qureshi is the youngest of four sisters. She also has an older brother. Her problems began when she was 14 or 15, and was left in the care of her older sister but did not want to follow the rules and regulations of that household. She was rebellious and did whatever she wanted to do, and that corresponds with her criminal record.
[20] A Pre-Sentence Report (“PSR”) was prepared in advance of the sentencing hearing. Overall, I find it to be one of the most positive and hopeful PSR’s I have had occasion to read in the past 13 years, despite the length and significance of Ms. Qureshi’s criminal antecedents.
[21] Crown counsel stated in her submissions that the PSR contains no evidence or expression of remorse by the offender. I entirely disagree.
[22] Ms. Angela Jodoin, the writer of the report, points out at pp. 5, 6 and 7 that Ms. Qureshi is remorseful and has shown understanding and enlightenment relative to her prior behavior, and has clearly and firmly recognized a need for it to change. In para. 2 on p. 5, Ms. Jodoin states that Ms. Qureshi sees her bad choices and the impact of these offences as a wake-up call which resulted in her recognizing she had to make pro-social changes in her lifestyle.
[23] Based on the information obtained from the collateral sources, this realization represents a significant marked change from Ms. Qureshi’s previous behaviour where, as her family indicated, Ms. Qureshi did not want to listen to them, did not want to stay at home, made bad friend choices, and willingly and wantonly got involved in criminal activity. Ms. Qureshi’s family members were sceptics who were looking for proof of her realization. Now, however, they have seen and continue to see pro-social change in her daily behaviour and in the employment she has obtained, which she is continuing to pursue with vigour and hard work.
[24] There is further recognition in the PSR of Ms. Qureshi’s desire to change and her remorse. She now understands that she has not only made poor choices in the friends with whom she associated, but also in regard to her intimate partners.
[25] Commencing at p. 6 of the report, the writer wrote that Ms. Qureshi indicated that she loves the work she is presently involved in with horses. She intends to stay focused and stick to the plan she has now set for her future. More specifically, at p. 7, in commenting on her ‘character, behaviour and attitude’, Ms. Jodoin wrote that Ms. Qureshi is distraught over the poor choices she made in her past, but recognizes the present situation as a “blessing in disguise”, referring to the significant period of time she spent in pre-trial custody. That dead time has helped her to realize that she desperately needed to make positive changes in her life and with determination. She has separated herself from her past negative peer associates. She is working on making new friends and achieving her goals in order to be a productive member of society. She regrets her past actions. However, the opportunities she has had and pursued over the past year and a half on bail has helped her to realize that she can be and is a good person, and that she can live a pro-social life on her own with positive support from family and friends.
[26] Ms. Qureshi realizes the seriousness of her behaviour. That has and continues to be the source of intense regret and embarrassment for her. Her failure to previously recognize the need for change caused her sister, Ms. Shamim Qureshi, a Federal Government Passport Officer, to be unwilling to serve as a surety for her. She would not bail her sister out of jail because she was frustrated with her sister’s failure to see what was plainly there for her to see, and because of the choices she was continuing to make at that time. But now, Ms. Qureshi’s sister sees a remorseful person of great integrity and dependability. She sees a person who is trying with all her power to change and turn away from the old negative antecedents, towards a positive realignment of her life, to ultimately become a lawfully employed and productive member of Canadian society.
[27] So there are strong indications throughout the report that Ms. Qureshi has expressed remorse and that she has made positive changes. The reliability of Ms. Jodoin’s PSR is enhanced by the reports from the collateral sources. There were also numerous letters of strong support filed as Exhibits at this sentencing, from family members, third parties and Ms. Qureshi’s employer, who all attest to the positive change she has made. She has never previously been employed legally or gainfully, but now she is employed working at a riding facility outside of the city. Her surety drives her there every day.
[28] In that position, Ms. Qureshi looks after, feeds and grooms 30 horses and she takes people on trail rides. She has received certificates of successful completion of three courses that form part of her training at the University of Guelph, one of Canada’s preeminent agricultural colleges. These include Basic Horse Care and Management, Pasture Associated Laminitis Prevention Strategies, and Horse Colours and Markings, all with grades of 80% or higher. She is working to obtain her certification to be a certified instructor for beginner riders. She has the good fortune to have additional encouragement and support in that endeavor as she is being trained by Mr. Frank Grelo, one of Canada’s top, world class dressage riders.
[29] Ms. Qureshi’s family has also seen the profound changes she is embarked upon and they have commented on it in their letters of support. They had all given up on her in the past, to the point where they were unwilling to stand as sureties for her, preferring to allow her to languish in pre-trial detention centres because she just had not gotten the message. That is all now turned around. They are very supportive of her. Her eldest sister, Subrina Jagmohansingh, believes Ms. Qureshi has put her past lifestyle permanently behind. She states:
I can honestly say she had lost the support of certain family members including myself because of the exhaustion of the run-ins, so to speak. After her last arrest, no one wanted to really believe her or give her a final chance as she pleaded for while incarcerated. I remember her saying that it was her eye opener and mentioning that she was getting older and hated the lifestyle. Her words at the time meant everything to me, as I have never seen or realized so much maturity in my little sister's voice, but still a bug in my head said words mean nothing. Well I can truly say she has put the definition to actions speak louder than words. For the past couple of years I have seen an exceptional change in regards to the woman who she has become. I can proudly say she now attends almost all family functions and the only time she has been unable to attend is when committed to the lengthy hours of work, where I know she is doing her passion, which is working with horses.
[30] Mr. Khalid Yousif and his brother stepped forward to serve as sureties for Ms. Qureshi because they knew the family. Ms. Qureshi and Mr. Yousif are now engaged. He has had daily interaction with her at their home, and in the time when he has driven her daily to and from her employment at the stables. He has observed very happy interactions between her, the boarders and her clients, who he reports are happy and grateful for the care she provides to the horses. He is proud of what she has achieved. But even as her fiancé, Mr. Yousif understands that she has broken the law, which cannot go without consequences. However, noting that she served an extensive period of pre-trial incarceration, he observes that she has made nothing but positive advances while on house arrest bail, and that she has truly made the changes for herself. I found this letter helpful, coming from someone who seems to have a good perspective on Ms. Qureshi and the present situation.
[31] Ms. Myrtle Bryan, Ms. Qureshi’s mother, wrote a very candid letter. She writes from a mother’s perspective, which she acknowledges is biased, but she wanted to let me know what kind of daughter Ms. Qureshi has become. She says, “Don’t assume that I’ll be writing glowing things simply because she is my daughter. Please understand that I’ve been impressed and in awe [even] if she wasn’t related to me. That’s just how amazing she is.”
[32] In her mother’s view, Ms. Qureshi has turned 180 degrees and is now doing all the right things to move forward positively. Ms. Bryan is proud that against her criminal background, her daughter is going to school and working fulltime at the Pathways Pleasure Valley riding center. Ms. Qureshi is so dedicated to her work that she will miss some social and family get-togethers to fulfill her job requirements. Ms. Bryan acknowledges her daughter’s many past mistakes, but now finds her incredibly remorseful and willing to do whatever it takes to fix those mistakes. She asks for her daughter to have an opportunity to have a second chance.
[33] In summary, in the Assessment paragraphs at the conclusion of the PSR, Ms. Jodoin states, in part, as follows:
Appearing before the Court is 31-year-old for Farzana Qureshi, a repeat offender awaiting a disposition with regard to the charges of: conspiracy (x3), traffic a firearm, traffic an illegal substance, possession under $5,000, and possession for the purpose of trafficking.
[Ms. Qureshi] self-disclosed that past of negative peer associates and participation in criminal activity. However she expressed her desire to change and herself, along with her collateral sources, all expressed the considerable progress that the subject has presented in changing her life for the better.
The subject has provided confirmation of full-time employment and documentation to confirm her involvement in furthering her education. The subject wants to pursue a future with horses and her current employment and educational endeavours have her on a path to achieve the goals she has set for herself. [My emphasis.]
[34] She concludes by confirming the collateral sources of support and positive influence that are available to Ms. Qureshi from Mr. Yousif, her partner of two years, her siblings and her mother.
Positions of the Crown and the Defence
[35] Crown counsel’s position is that the appropriate global sentence is five years before pre-sentence custody credit, on the basis that the primary sentencing factors for trafficking in guns or cocaine must be denunciation and deterrence. While rehabilitation is acknowledged to be a factor to be considered in determining a fit sentence, Crown counsel contends it must not be the primary factor.
[36] On the drug offences, Crown counsel asks for two years. Although Ms. Qureshi was a low to mid-level drug dealer, she was motivated by greed. Furthermore, she has a significant criminal record, and she committed these offences in breach of her bail terms at the time.
[37] On the firearms offences, Crown counsel asks for a sentence of three years, the same as the mandatory minimum regardless of the minimum having been found to be unconstitutional. Crown counsel contends that the evidence establishes that Ms. Qureshi was in a position where she had access to a firearm or firearms to offer for sale, and that the offer was not a hollow one. Given that Ms. Qureshi was subject to prohibition orders at the time of these offences, albeit not from actually previously possessing firearms but rather associated to her prior drug dealing convictions, the Crown claims a significant sentence is required. After R. v. Summers [^6] credit, lockdown credit and R. v. Downes [^7] credit, on which both counsel agree, the Crown seeks a remaining sentence for Ms. Qureshi of about two and a half years of imprisonment.
[38] Defence counsel asks that Ms. Qureshi be sentenced to time served. In Ms. Scott’s submission, a 12-month custodial sentence is appropriate for the drug and proceeds offences (Counts 3 to 8), and an 18-month sentence is appropriate for the gun counts (Counts 1 and 2). She submits that the terms be served consecutively, totaling 30 months. However, since it is agreed that Ms. Qureshi is entitled to a total of 906 days of credit to the date of the hearing, which equals approximately 30 months, the sentence submitted by defence counsel would result in a sentence of time served.
[39] Defence counsel goes on to argue that there is no need here for consecutive sentences, based on R. v. Sadikov [^8]. In Sadikov, the Court rejected the argument that there is any absolute rule that drugs and weapons convictions must attract consecutive sentences in all cases. If not sentenced to consecutive components, defence counsel argues that a total sentence of 24 months is fit, i.e. two years before credit, with that amount of time allotted for the gun offences and a concurrent sentence of 18 months on the drug offences.
[40] The foundation for the defence submission is that these offences and the acts they encompass were “part of a linked series of acts within a single endeavour", namely all part of the ongoing process of dealing drugs which is associated to firearms. As such, defence counsel contends consecutive sentences are not required. Moreover, she notes that the rehabilitative nature of Ms. Qureshi’s circumstances are extraordinary and show strong remorse, not only in her words, but by the actions she has taken towards her own rehabilitation since these offences occurred. Ms. Scott correctly assumes that the Court must and will take into consideration all of the principles under s. 718 of the Code, but emphasizes the principle of rehabilitation here given the very substantial turnaround that Ms. Qureshi has brought about in her own life and by her own effort.
Principles of Sentencing
[41] Section 718 of the Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. The specific objectives are to (i) denounce unlawful conduct, (ii) to deter the offender and others from committing such offences and (iii) to separate offenders from society where necessary. General deterrence to others is paramount, but where there is a need for specific deterrence of the particular offender, that also will occupy a prominent place in deciding what sentence to impose. It is plain that Parliament intended that the rehabilitation of the offender would occupy a significant place in the hierarchy of sentencing values articulated in the Code.
[42] Section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of her liberty if less restrictive sanctions may be appropriate in the particular circumstances of the case. All available sanctions, other than imprisonment, that are reasonable in the circumstances must generally be considered for all offenders. However, this is not a case where a sentence of imprisonment can be avoided.
[43] While I am required to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences [^9], the determination of a fit sentence will always remain an individualized process. That process requires that I weigh the objectives of sentencing in a manner that best reflects the circumstances of the case, with no one sentencing objective taking precedence over the others. The relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences. However, while my discretion to craft a sentence tailored to the nature of the offence and the circumstances of the offender is broad, it is limited by the case law which establishes general ranges of sentences for particular offences that are to serve as guidelines, thereby encouraging consistency between sentencing decisions. It is also limited by statute through the general sentencing principles and objectives enshrined in the Code, and through legislated restrictions on the availability of certain sanctions for certain offences.
Case Law:
[44] The parties referred me to a number of authorities in support of their positions. I will begin with the cases cited by the Crown.
[45] R. v. Woolcock [^10] establishes that the range of sentence for the conspiracy and trafficking in cocaine offences is six months to two years, which will go up or down depending on the amount of cocaine and the record of the offender.
[46] In R. v. Goulet [^11], the accused was 21 years old at the time, was a drug addict and had an unrelated criminal record. He pleaded guilty to having 54.5 grams of cocaine. The Court of Appeal found that the three-year sentence imposed by the trial judge was “fit and proper for the reasons given by the trial judge”. A three-year sentence was also imposed in R. v. Nguyen [^12] for a similar quantity of cocaine, where the accused, with two prior convictions, was violating his statutory release and was still on probation when the offences were committed. In R. v. Hill [^13], the offender was sentenced to two years for possessing 45.4 grams of cocaine and the court imposed a consecutive six-year sentence for firearms offences, but of much greater gravamen than here.
[47] Turning to the trafficking firearms offences, the leading decision is R. v. Danvers [^14] and the cases that follow it, which establish that the principles of denunciation and deterrence must be the primary sentencing objectives. Thus, in R. v. Abdullahi [^15], the 25-year-old accused with no prior record was given four years for conspiracy to traffic firearms. In R. v. Farah [^16], a repeat firearms offender received a one-year sentence for the separate count of conspiracy to traffic firearms, consecutive to the eight years he received for trafficking firearms. However, those are both more serious cases than the case before me because both of those were criminal organization cases. In R. v. Howell [^17], the accused was a youthful first-time offender in possession of a number of guns and ammunition to traffic. He was sentenced to four years. This also was a more serious case than the present because the offender was in actual possession of a number of firearms that he sought to traffic.
[48] Importantly, however, in cases where the court found evidence that the offer to traffic was “hollow” in that there was either (i) no intention to follow through with the offer and/or (ii) that the accused had no real access to a firearm, the courts have imposed jail sentences below the three year level. One such example is R. v. Harriott [^18]. There, like here, the accused was convicted of trafficking cocaine and a firearm by offer, but the Court found in that case that the accused did not have a gun, had no access to a gun and that the purchaser initiated the request and pressured the accused for it. It was a “hollow” offer for a firearm “which [the accused] had no intention of ever selling and had no access to.” In that case, Skarica J. found the mandatory minimum for s. 99 of the Code to be unconstitutional and imposed a three to six month jail term consecutive to the cocaine trafficking sentence. Unlike in this case, the offender there had only one entry on his record.
[49] Going beyond Harriott, there is the unreported decision of the Ontario Court of Justice in R. v. Lewis [^19], referenced at paras. 34-36 in Harriott. In that case, the court sentenced a 20-year-old with a significant record that included violence to a jail term of one year for trafficking firearms by offer because the court found that the accused had no access to a gun and never intended to carry through with the offer.
[50] Turning to the cases advanced by the defence, in R. v. Abdi [^20], McMahon J. sentenced a 32-year-old accused who had expressed his remorse by pleading guilty to trafficking firearms and drugs. He received a total sentence of two years, 11 months and 24 days for trafficking in firearms, one year concurrent for possession of a firearm, and two years and six months concurrent on conspiracy to traffic cocaine. However, unlike the offender in that case, Ms. Qureshi is not a first-time offender. Nevertheless, she must receive at least some reasonable amount of mitigation for pleading guilty to three out of the eight offences.
[51] In R. v. Sauve [^21], the court emphasized that I should focus on individual deterrence and rehabilitation, but also the principle of restraint, in sentencing a youthful first-time offender. Here, however, unlike there, Ms. Qureshi has a lengthy criminal record and she was bound by not only bail terms, but three separate prohibition orders at the time of these offences. Nevertheless, her relatively young age does command some attention. But more importantly, apart from general denunciation and deterrence, even for a repeat offender like Ms. Qureshi, there must be attention given to the fit sentence that is appropriate for her, and the extent to which she requires individual deterrence and the important prospects of rehabilitation.
[52] Defence counsel also referred to R. v. Trion Castello, an unreported decision of the late Justice French. That case was a more serious criminal organization case, but it involved resolution by way of a plea to all charges well before the preliminary hearing dates, which resulted in significant credit for the offender’s plea. I do not find this case helpful because of its markedly different circumstances, although it does acknowledge that even Ms. Qureshi must receive some reasonable mitigation for her guilty plea to three of the eight charges.
[53] Finally, there is also authority referred to by the Crown supporting consecutive sentences for breaching two separate prohibition orders arising out of the possession of one firearm, because the breaches were separate, distinct, and referable to prohibition orders imposed at different points in time and in different circumstances [^22]. In Chambers, at para. 23, citing R. v. Johnson [^23], the Court of Appeal noted that it had recently upheld sentences of six months’ imprisonment for firearms prohibition offences, to be served consecutively to a firearm possession offence, and to each other.
Mitigating and Aggravating Factors
[54] I find that the following factors are aggravating in this case:
(i) Ms. Qureshi was in violation of three weapons prohibition orders and her bail terms on other charges at the time she committed these offences; (ii) Ms. Qureshi got around her bail terms by using her boyfriend, A.M., to serve as a conduit of drugs on her behalf from her in Hamilton to Ms. Maunder in Brantford; (iii) Ms. Qureshi was specifically prohibited from associating with Ms. Maunder at the times she was selling her the crack cocaine that is the subject matter of these charges; (iv) While, in my view, Ms. Qureshi was only a low to mid-level operative, she did supply drugs to others who were addicts and sold the drugs at street level. She was entirely motivated by commercial considerations and greed; and (v) Ms. Qureshi has a lengthy criminal record.
[55] I find that the following factors are mitigating in this case:
(i) Ms. Qureshi pleaded guilty at the commencement of the trial to three out of the eight charges on the indictment. In doing so, she admitted to being a drug dealer for profit, a fact that will likely have been recognized by the jury in considering the other charges; (ii) Ms. Qureshi has expressed remorse, directly in words, both to me during the sentencing hearing and to the author of the PSR, but more importantly, the actions she has taken to get off the path of criminality are the most direct and meaningful expression of true remorse and acceptance of responsibility; and (iii) Ms. Qureshi has taken extraordinary steps to turn her life around over the past three years. She has diligently pursued advanced agricultural studies to permit her to proceed with her chosen career in agriculture, and she has been very successfully and lawfully employed over the past 18 months, with her continuing prospects for that employment guaranteed.
Pre-Sentence Credit
[56] Counsel have agreed on the pre-sentence credit that Ms. Qureshi should receive (i) under Summers for pre-trial custody and enhanced credit for lockdown periods during the custodial portion of her pre-trial detention, and (ii) under Downes for the portion of time up to the hearing date spent under strict conditions of house arrest, apart from employment.
[57] Ms. Qureshi was arrested on June 4, 2015 and was released on July 26, 2016 for a total of 419 days in detention. Institutional records show that she spent 130 days of those 419 days in lockdown while she was in custody. The parties agree Ms. Qureshi should receive enhanced credit above 1.5:1 for these days. I find that she should receive enhanced credit of 2:1 for the 130 days spent in lockdown, plus 1.5:1 for the remaining 289 days of pre-trial custody not spent in lockdown. On this basis, the total Summers credit due to Ms. Qureshi is 693.5 days credit in total.
[58] Ms. Qureshi has been on house arrest bail since her release on July 26, 2016, for a total of 799 days, or two years, two months and seven days, which includes the October 2, 2018 date of this hearing. In Downes, the Court of Appeal gave credit of five months for being on house arrest for 18 months. Given that Ms. Qureshi was on a stringent house arrest bail without any breaches, the parties agreed to a credit of seven months, that is, 213 days up to October 2. However, Ms. Qureshi must also receive credit for the time since the sentencing hearing to today’s sentencing date, a delay that was due to my medical leave over the past two months.
[59] The period from October 2, 2018 up until today, January 8, 2019, totals exactly 14 weeks, or 98 days, for an additional credit of 28 days, which I have rounded up to 30. Accordingly, I find that the total credit due to Ms. Qureshi for time spent in pre-trial custody, including lockdown credit and for time spent on house arrest bail, is 936.5 days. This equals about 31 months, or just over two years and seven months. I would note, in passing, that the time already served for which Ms. Qureshi must receive credit already totals 30% more time than the minimum penitentiary sentence of two years.
Discussion
[60] Ms. Qureshi was found to have been in possession of 43.18 grams of cocaine, a significant amount, which she possessed to supply to other traffickers as a low to mid-level operative. She committed five offences with three separate individuals. Her bail terms ordered her to not have any contact with one of those individuals. In the particular circumstances of this case, given that the range established in Woolcock is six months to two years, I find that the appropriate sentence would otherwise be at the upper end of the two-year range, namely 24 months. However, the Crown acknowledges that Ms. Qureshi pleaded guilty to some of these offences, which is mitigating. As such, I find that the appropriate sentence on the drug offences is 18 months, before credit.
[61] Relative to the firearms offences, however, the circumstances are not so clear. Certainly the gravamen of the conspiracy to traffic firearms is made out, but I am not satisfied that the evidential foundation supports the conclusion beyond a reasonable doubt that Ms. Qureshi actually had access to the firearms she was discussing. There is no doubt that handguns are particularly pernicious weapons as their sole purpose is to kill, maim or intimidate other persons. While Ms. Qureshi’s offer was plainly real, I am not satisfied on the evidence that she had ready access to the gun. Moreover, the three week “all quiet” period that followed the final phone discussion about the firearm does not, contrary to the Crown’s submission, demonstrate that she intended to follow through with the deal.
[62] The Crown’s contention that the firearms offences in this case were “true crimes” is based on the claim that Ms. Qureshi, in conjunction with a co-conspirator, sought out a firearm to sell for profit. It is founded on the evidential claim that Ms. Qureshi had real access to this firearm, that it was a “real” or “true offer” and that she intended to follow through with the transaction. The Crown claims the evidence established that Ms. Qureshi did not abandon her intention to traffic a firearm even after three weeks had passed from when the offer was made.
[63] The issue is whether it was a real offer or a hollow offer, but Ferguson provides instruction about what findings of fact can be made, and to what level of proof. I must make the minimum findings of fact which the jury must have concluded on in order to convict. Anything that goes beyond that minimum then become factors which I am asked to either find or to not find as aggravating factors or as mitigating factors. In order to make an aggravating finding on this, that is, whether the offer is real rather than hollow, I must be satisfied to the criminal standard on the basis of the evidence, not merely on a balance of probabilities. In circumstances where the offer was not found to be real to that standard, it was regarded as hollow and lower sentences resulted. On the other hand, the inability to be satisfied beyond a reasonable doubt that the offer could be completed with the offeror having the access and ability to complete the transaction reduces the gravamen of the offence and calls for a lesser sentence. That was why the justice in Harriott imposed a sentence much below three years.
[64] The final legal issue that arises here, which ties into the firearm trafficking offence, is whether R. v. Kienapple [^24] applies to eliminate one of the offences of conspiracy to traffic weapons on Count 1 and the offence of trafficking a firearm in Count 2. However, in R. v. Sheppe [^25], Chief Justice Laskin, writing for the Supreme Court, found that convictions for conspiracy and trafficking in the context of drug trafficking did not offend the Kienapple principle. At pp. 25-26, he states:
It is trite law that the gist of conspiracy under our law lies in an unlawful agreement here, to violate the Narcotic Control Act …Culpability does not depend on the implementation of the design, although the law in the United States is different in also requiring proof of an overt act...In Canada, overt acts are admissible evidence to support a charge of conspiracy...This does not, however, mean that the acts merge into the conspiracy so as to lose their independent character. [Case citations omitted.]
[65] In this case, there was no evidence that Ms. Qureshi was ever in actual possession of any firearm that she offered for sale. No firearm was found when the police executed the search warrant at 5 Greystone Walk Drive, or in Ms. Qureshi’s vehicle when it was searched. The only evidence from which the jury could have found that she offered a firearm for sale is the wiretap intercept evidence consisting of the recorded telephone calls and texts involving her Blackberry cellphone.
[66] While the delict for conspiracy and for trafficking are different, in this case, they both arise in the course of the same series of transactions or events. The firearm that is being spoken about with Mr. Tajun Thomas is the same firearm about which Ms. Qureshi speaks to A.M. She asks A.M. to source a firearm to give to Mr. Thomas. Those actions, and the subsequent offer, are all part of the same transaction; they are legally and factually connected. Ms. Qureshi talks to Mr. Thomas, but she asks A.M. to source it. She told Mr. Thomas that she was “going to talk to her people” to get the firearm, but there are no other calls with respect to whether a firearm is coming.
[67] In her submissions, Crown counsel stated that the intercepts show that Ms. Qureshi was actively conspiring to obtain and sell a firearm in order to make a profit. But she had no source, so she reached out to her boyfriend, A.M., and her roommate, Venkat Milligan. It is claimed that Ms. Qureshi “found” a firearm through A.M. and David Barski, but in my view, that is not correct. She had been told there was an alleged firearm available, but apart from telling Mr. Thomas that the seller wanted $3,500 dollars for it, she did not have the full details about the firearm. Nothing further ever happened. Then, on April 2, 2015, she “offered” a 32-caliber firearm for $2,500, which was a smaller caliber firearm than Mr. Thomas asked her to supply.
[68] Crown counsel submitted that Ms. Qureshi never testified it was not a real offer, just that it was not for a firearm. Ms. Qureshi was claimed to have real access to a firearm through her co-conspirator boyfriend, A.M., and David Barski. The Crown contends there was no evidence that Ms. Qureshi backed out of the offer or had no intention to go through with the offer. Respectfully, in my view these submissions impose an improper evidential burden on the accused. Ms. Qureshi did not have to testify that the offer was not real. It was for the Crown to prove that it was. Further, if there was no evidence that Ms. Qureshi backed out of the offer, or had no intention to go through with the offer, neither in my view was there evidence that the three week lapse after the last firearm-related conversation is not equally consistent with the matter having gone away, especially considering the lack of evidence that Ms. Qureshi actually had access to a gun.
[69] Ms. Qureshi was definitely conspiring and speaking about trafficking a firearm, but there was never any indication that she was actually in possession of a firearm at any point, and I am not satisfied that she actually had access to one. The evidence showed that Ms. Qureshi spoke to A.M. about wanting a firearm “for her people.” A.M. talked to Mr. Barski, but he specifically admonished A.M. “Don’t tell Z about the firearm,” referring to Ms. Qureshi, thus explaining her lack of detailed knowledge. A.M. never told Ms. Qureshi that Mr. Barski had firearms.
[70] Thus, while Ms. Qureshi was speaking of a weapon to traffic, she never actually possessed one. Her conversations about getting a firearm for Mr. Thomas were clearly “talking the big talk” in my view. I find that Ms. Qureshi was actually cut out of the real core conversations, and she never obtained nor, in my view, did she have access to a firearm. Then, in the April 2 text messages between herself and Tajun Thomas, Mr. Thomas texts “Okay, okay, enough said, imma shout you in a week”, but there was total radio silence after that. There were no other calls made. There was no evidence that Ms. Qureshi ever met with Mr. Thomas, no indication Mr. Thomas ever received a firearm, and no indication that Ms. Qureshi received one from A.M. to give to Mr. Thomas.
[71] In the result, I find that the principles articulated in Harriott and Lewis are applicable in this case. I also accept that the separate delicts of conspiracy and trafficking by offer are separate offences, but given that they arise out of the same series of transactions or events, they will receive concurrent sentences. While a global penitentiary sentence is clearly warranted, especially given the aggravating factor of Ms. Qureshi’s breach of prohibition orders and bail terms even though she was not charged with breaches of those orders, I find that the three year sentence sought by the Crown for the firearms offences is not warranted because the aggravating factor of the offer being “real” has not been proved beyond a reasonable doubt.
[72] Finally, of great and unique importance in this case is the issue of rehabilitation. It is true that rehabilitation cannot take precedence here over the primary sentencing objectives of denunciation and deterrence, but neither can rehabilitation be ignored. The case-law makes clear that Parliament intended that the rehabilitation of the offender would always also occupy a significant place in the hierarchy of sentencing values articulated in the Code, to be applied by a sentencing judge in determining the fit sentence for an offender. Whether the rehabilitation factor is of minor weight or defeated by the unlikelihood of the offender reforming him or herself, or whether it will be of substantial weight based on evidence of real and meaningful efforts of the offender to change paths, it will always be a unique function of the circumstances of the particular case. Here, there is unusually compelling and persuasive evidence of rehabilitation – a circumstance that requires that the value of rehabilitation be given voice, notwithstanding the seriousness of the offences.
[73] The evidence here of the exceptional efforts of this offender to rehabilitate herself and become a law-abiding working Canadian is exceptionally strong. Further, to the extent that time served, as outlined below, already amounts to a penitentiary sentence approaching three years, it is plain to me given the exceptional efforts Ms. Qureshi has made, that her pre-sentence custody and strict terms of house arrest have already accomplished the specific deterrence of this offender from committing further crimes.
[74] I am required to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences [^26], but the determination of a fit sentence will always remain an individualized process. That process requires that I weigh the objectives of sentencing in a manner that best reflects the circumstances of the case, with no one sentencing objective taking precedence over the others. In this case, while there are plainly serious aggravating factors, to my mind they have been materially superseded, in weight and in the passage of time, by the unique mitigating factors that are present. Nevertheless, while I find that a lenient sentence is fit in the particular circumstances that Ms. Qureshi presents, in my view each of the components of Ms. Qureshi’s sentence are appropriately placed within the guideline ranges, based on the facts as I have found them.
[75] Finally, this sentence is also fit because Ms. Qureshi has taken personal responsibility for her unlawful conduct, and has expressed remorse and publicly apologized to the court. She acknowledges having made very, very bad decisions. However, she can also see the effect of change in her life. She had said she would make such attempts in the past, but then failed. Now, however, she is doing very well, and she can rightly take pride in her recent accomplishments and that her family and whatever good friends she has left are also proud of her. This gives her the strength to keep going and continue on the road towards a productive, law-abiding life.
[76] Were it not for the extraordinary progress this offender has made, a further custodial disposition for some period of less than two years, after credit, would be the norm. However, in light of the specific deterrence that this offender’s time in pre-trial custody appears to have achieved, I cannot justify imposing a further extended period of incarceration on this offender. In summary, for these reasons, in my view the drug offences should command a sentence of 18 months, concurrent. I would impose a consecutive sentence of one year for the two firearms offences, concurrent to each other, which I note is at the top of the range of sentences imposed in Harriott and Lewis.
Ancillary Orders:
[77] The Crown seeks a weapons prohibition order under s. 109 of the Code for life, a DNA order under s. 489.051(3), and a forfeiture order. There was some debate between counsel relative to the forfeiture order, but the other two will go on consent. We will discuss the forfeiture order momentarily.
Final Decision
[78] Ms. Qureshi, would you please stand up.
[79] For the foregoing reasons, I sentence you to a penitentiary sentence of 30 months, or two and a half years. However, in light of the extensive pre-trial custody credit and credit for extensive house arrest, you will receive a Suspended Sentence of time served, plus two years of probation.
[80] The ancillary orders, including the forfeiture order, will go.
[81] I wish you every success, Ms. Qureshi, in your continuing efforts to change the direction of your life. As I have said, while still a penitentiary sentence, this is a lenient sentence because I have confidence that you will not disappoint the trust and confidence that has caused me to reach this decision.
Michael G. Quigley J.
Released: January 8, 2019
COURT FILE NO.: CR-16-40000615-0000 DATE: 20190108 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – FARZANA QURESHI REASONS FOR SENTENCE Michael G. Quigley J. Released: January 8, 2019