COURT FILE NO.: CR/19/30000477/0000 DATE: 20200309 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN - and - allan rajmoolie

COUNSEL: D. Kellway and J. Garrity, for the Crown D. Yasskin, for Mr. Rajmoolie

HEARD: January 24, February 5 and February 28, 2020

KELLY J.

Reasons for Sentence

[1] Mr. Allan Rajmoolie has pleaded guilty to possessing a restricted firearm with readily accessible ammunition, contrary to s. 95(1) of the Criminal Code, R.S.C., 1985, c. C-46. He has also pleaded guilty to possessing a firearm while prohibited from doing so and in breach of his recognizance, contrary to ss. 117.01(1) and 145(3) of the Criminal Code respectively. Mr. Rajmoolie appears before me now for sentencing.

[2] Crown Counsel submits that the appropriate global sentence is 4 to 4.5 years in custody. Counsel for Mr. Rajmoolie submits that the appropriate sentence is 3.5 years.

[3] Both counsel agree that Mr. Rajmoolie should receive a reduction in his sentence for time served, pursuant to R. v. Summers. Counsel for Mr. Rajmoolie also submits that some credit should be given for the harsh conditions experienced by Mr. Rajmoolie while incarcerated in the Toronto East Detention Centre, pursuant to R. v. Duncan.

[4] Lastly, both counsel agree that the following ancillary orders should be imposed:

(i) an order pursuant to s. 487.051(3) of the Criminal Code that Mr. Rajmoolie provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

(ii) an order pursuant to s. 109 for life.

[5] After having considered the facts of the case, Mr. Rajmoolie’s background and the relevant legal principles, I find that the appropriate sentence is 4 years (48 months), less time served of 25 months for a further 23 months to be served. No Duncan credit is granted. The ancillary orders are imposed.

[6] What follows are my reasons.

The Facts

[7] The facts giving rise to the pleas and convictions formed part of an Agreed Statement of Facts (“ASF”). The ASF may be summarized as follows:

a. At the time of the offences, Mr. Rajmoolie resided at 1009-90 Mornelle Court with his brother and his parents.

b. On Thursday, October 19, 2017, Mr. Rajmoolie entered into a Probation Order with a condition not to possess any weapon(s) as defined by the Criminal Code.

c. On Wednesday, May 16, 2018, Mr. Rajmoolie entered into a Recognizance with a condition not to possess any weapon(s) as defined by the Criminal Code.

d. At the time of the offences, Mr. Rajmoolie was also subject to both s. 110 and s. 109 firearm prohibition orders.

e. On Saturday, October 20, 2018, the Toronto Police Service received an anonymous radio call relating to a family dispute occurring at 1009-90 Mornelle Court, Toronto. Officers received information that Mr. Rajmoolie was high on drugs and was threatening his family with a weapon.

f. Officers arrived on scene and spoke with the family inside the apartment. Mr. Rajmoolie was in the living room at the time and was very agitated. While the officers were present, Mr. Rajmoolie’s brother, Mr. Ryan Ash, pulled one of the officers aside and advised him that there was a firearm in Mr. Rajmoolie’s bedroom, under the mattress. This officer then went into Mr. Rajmoolie’s bedroom and indeed located a firearm under the mattress.

g. Mr. Rajmoolie was placed under arrest and the scene was secured pending an application for a warrant to search the residence. The search warrant was granted and was promptly executed by members of the Toronto Police Service. While executing the warrant, officers seized the firearm which had been located under the mattress in Mr. Rajmoolie’s bedroom — a 357 magnum. Also found in Mr. Rajmoolie’s bedroom were 43 rounds of readily accessible ammunition, which were capable of being discharged in the firearm, and identification belonging to Mr. Rajmoolie.

h. The firearm seized by the police from Mr. Rajmoolie’s bedroom is a restricted firearm. Mr. Rajmoolie acknowledges that he had both knowledge and control of the said firearm and furthermore, that he never had any licence or authorization that would permit him to possess it.

[8] These are the facts upon which Mr. Rajmoolie is being sentenced. I will now turn to a consideration of his background.

Personal Background

[9] Mr. Rajmoolie’s background may be summarized as follows:

a. Mr. Rajmoolie is currently 30 years of age. He has lived in Toronto his entire life.

b. Mr. Rajmoolie’s parents are alive and were present in court. Others were also present including his sister, girlfriend and other friends.

c. Mr. Rajmoolie has his high school diploma. He has also received certificates in marketing and business from Northern College.

d. Prior to being injured, he worked at an A&W franchise as well as two marketing firms.

e. In his teens (at age 14), after having moved out of his home, Mr. Rajmoolie was sexually abused. Thereafter he started abusing narcotics, including opiates and cocaine.

f. Mr. Rajmoolie has also been stabbed a number of times in his stomach and head. As a result, he has endured several surgeries requiring hospital stays.

g. Mr. Rajmoolie suffers from depression, ADHD, anxiety and PTSD. He also suffers from addiction issues.

[10] Mr. Rajmoolie has a criminal record that contains approximately 20 entries. He has approximately eight convictions for failing to comply with court orders. The other relevant entries on his criminal record are the following:

Date	Offence	Sentence
June 13, 2011	Robbery.	3 years, 10 months, together with a weapons prohibition pursuant to s. 109 of the Code.
October 19, 2017	Possession of a prohibited weapon or restricted weapon knowing that its possession is unauthorized.	$10 fine in addition to 30 days of pre-sentence custody.
October 25, 2017	Carry concealed weapon.	Suspended sentence and probation for 2 years.
August 28, 2018	Mischief under $5,000 and assault.	65 days in pre-sentence custody, 10 months of probation and a s. 109 order for 10 years.
February 5, 2019	Uttering threats and carry concealed weapon.	30 days of pre-sentence custody, 18 months of probation and a s. 109 order for life.

[11] While in custody, Mr. Rajmoolie has completed some courses:

a. Communications Skills Workshop;

b. Effective Parenting Workshop; and

c. Life Skills, Educational Session: Anger Management.

[12] Letters of support were filed on behalf of Mr. Rajmoolie. They may be summarized as follows:

Cindy Bheem, Ryan Ash and Ash Rajmoolie: This letter was signed by the mother, brother and father of Mr. Rajmoolie. They advised that the offences before the court were a cry for help from Mr. Rajmoolie. He was in crisis. He is described as a “great decent person when not intoxicated”. He had dreams for a bright future but now he is a “broken young man”. They describe:

Now the time has come for change, make amends, he suffered enough, given a lot of time to think and remodel himself mentally, physically, he’s determined to go forward with new prospects.

As a family we will support him with a home, which he so desperately needs, to be with us, to heal, to strengthen bonds and to know that he’s not done, this is important for his mental stability.

They describe that watching Mr. Rajmoolie struggle with life has been painful. They will support him and are asking for a chance to mend their home and family together.

Sasha Mohammed: Ms. Mohammed is a friend of eight years. She describes Mr. Rajmoolie as a “very hard working, determined and caring person who always goes out of his way to help anyone in need of help”. He helped Ms. Mohammed during an abusive relationship. He has expressed remorse for his actions to Ms. Mohammed. He has a desire for self-improvement. She describes that Mr. Rajmoolie has “shown a steadfast and resolute demeanour in moving past this mistake in a constructive and successful manner”.

Crystal Mackey: Ms. Mackey is a friend and has been for 10 years. She describes Mr. Rajmoolie as a “loving” and “caring” person who is always available to help people in need. She says that while Mr. Rajmoolie has been in custody, he has been able to “grow and mature as a man”. She will support Mr. Rajmoolie in his efforts to start a new life.

[13] Mr. Rajmoolie addressed the court. He said the following (amongst other things):

a. That he is a recovering drug addict. He wishes to be “free of the chains of addiction” that have held him “hostage” since his release from federal custody five years ago.

b. He describes that he became “powerless” to drugs and alcohol at the time of his arrest on these charges. All that he wanted to do was to “escape” from himself. He was plagued with depression. He was afraid and did not think about the harm that he was inflicting on himself.

c. Despite the harsh conditions of his incarceration at the Toronto East Detention Centre, he says that he has addressed his addiction issues and has a relapse prevention plan in place with the assistance of a doctor and social worker. He has begun the suboxone program. He has been accepted as a patient at Vida Nova upon his release.

d. Mr. Rajmoolie also says that he has been working with a psychologist to improve his mental health.

e. Mr. Rajmoolie has participated in the Centennial College Literacy Initiative. They have indicated that they will publish one of his essays in an upcoming publication. (Mr. Rajmoolie provided a copy of his essay for Centennial College entitled, “Give Him Hope”. It is well written and moving. It is certainly worthy of publication.)

f. He is interested in pursuing a career in writing and culinary arts. He plans to enroll at Centennial College upon release.

g. Mr. Rajmoolie states:

I am going to relentlessly strive for self-improvement, abstain from drugs and alcohol with the help of my girlfriend of 4 years, start a family and not burden my existing family with the stress of having an incarcerated son. … I am going to seek the help I need and turn my life around. I know this is literally my last chance at doing so and this new year is a new start and the perfect opportunity. 30 is a serious age, I have outgrown the irresponsibility I had in my 20s and I adamantly ensure you that I am conscious of the results of my choices and actions and will not find myself in front of a Judge again because I have surrendered control of my life to drugs. I am taking back control and starting over fresh, failure is not an option!

h. Mr. Rajmoolie says that he is a “changed man” that “has been through hell but consequently gained perspective, maturity and direction”.

[14] I will now turn to a consideration of the relevant legal principles.

The Law

[15] In determining an appropriate sentence for Mr. Rajmoolie, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[16] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). See R. v. Nur, 2011 ONSC 4874.

[17] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. See R. v. M. (C.A.), at para. 80. There is no such thing as a uniform sentence for a particular crime. R. v. Hamilton.

[18] That said, there is a theme consistent in all authorities dealing with firearms, especially in the City of Toronto. This is a theme that is often referred to regardless of the level of court: firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed that denounce such conduct and deter others from possessing such dangerous weapons. See e.g., R. v. Danvers (2005); R. v. Nur, 2015 SCC 15.

[19] I will now turn to a consideration of the fit sentence.

Analysis

Mitigating and Aggravating Factors

[20] In considering the fit sentence, I find the following to be the aggravating factors:

a. Mr. Rajmoolie has a significant criminal record. He has been incarcerated in the past, but has not been deterred from a life of criminality.

b. The numerous entries on Mr. Rajmoolie’s criminal record for failure to comply demonstrate that he has little regard for judicial orders.

c. Mr. Rajmoolie possessed this firearm in breach of two prohibition orders and a probation order.

d. Although the firearm was stored in Mr. Rajmoolie’s bedroom with the ammunition, it was a danger to his family and perhaps himself.

[21] There are mitigating circumstances to consider in sentencing Mr. Rajmoolie as well:

a. There was a plea of guilt. The plea resulted in a saving of court resources in a post-Jordan era.

b. Mr. Rajmoolie has shown remorse by pleading guilty.

c. The plea provided certainty of result.

d. Although there was readily accessible ammunition in the bedroom where the firearm was located, the firearm itself was not loaded.

e. Mr. Rajmoolie appears to have support in the community. Members of his family were present in court during the sentencing proceeding.

f. Mr. Rajmoolie suffers from mental health and addiction issues. He is working on those issues with the assistance of family and medical professionals.

g. Mr. Rajmoolie has made wise use of his time while incarcerated. He has participated in programs. He has a plan for his release.

h. Mr. Rajmoolie is obviously articulate and well spoken. He has the potential to be a contributing member of our society.

The Fit Sentence

[22] The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. Rajmoolie. However, Mr. Rajmoolie deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts.

[23] I am cognizant of the significant sentence imposed on Mr. Rajmoolie in 2011. He has been incarcerated for serious offences in the past and several offences since then. That said, I cannot say, with certainty, that there is no hope for rehabilitation. I do not disregard such a possibility. I also cannot ignore the principle of totality. However, I find that the primary sentencing objectives in this case are denunciation and deterrence.

[24] The sentence for breaching the court orders must be consecutive. Those charges represent separate and distinct offences from that of possessing the firearm and ammunition. See R. v. Ferrigon.

[25] In all of the circumstances, I find that the appropriate sentence is a global one of four years. But for the principle of totality and the plea, I would have had no hesitation in imposing a sentence of 4.5 years.

[26] Mr. Rajmoolie is entitled to a reduction in sentence pursuant to Summers but not Duncan.

The Summers Credit

[27] Mr. Rajmoolie will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers. Counsel has been advised that Mr. Rajmoolie has spent 16 months in custody. He will have spent an additional 10 days since his last appearance.

[28] Enhanced at 1.5 days for each day spent in pre-sentence custody, Mr. Rajmoolie will have spent 24 months, 15 days. In all of the circumstances, I will give him credit of 25 months.

The Duncan Credit

[29] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration. R. v. Duncan, 2016 ONCA 754, at paras. 6-7.

Lockdowns

[30] During the time that Mr. Rajmoolie was incarcerated, there were 2 days of full lockdown and 46 days of partial lockdown (6:00 p.m. to 9:00 p.m.) due to staff shortages. It was explained that during the lockdown periods, “the insitution generally runs all programs (showers, visits, medical, phone calls, etc.) but under a more restrictive protocol”.

[31] There were other lockdowns during the time that Mr. Rajmoolie was in custody. However, they were due to a search, security issues or maintenance.

[32] During the time that Mr. Rajmoolie was incarcerated at the Toronto East Detention Centre, full lockdowns were minimal and when the facility was in lockdown, it appeared that most services were available. This is obvious, based on the evidence of Mr. Rajmoolie himself (discussed further below). He was able to seek and obtain medical treatment for his physical ailments and psychiatric issues. He was permitted yard time and he participated in programs.

[33] There is no evidence of any adverse effect on Mr. Rajmoolie flowing from the locked down conditions. As such, he will not be given any credit for reasons of lockdown.

Hardship due to Physical Disability

[34] The range upon which Mr. Rajmoolie was housed was given yard time (i.e., access to the outdoors) approximately every other day. The records from the Toronto East Detention Centre suggest that yard time was offered to Mr. Rajmoolie’s unit 208 times. Although offered, Mr. Rajmoolie says that he was not able to access the yard due to his physical disability which was not accommodated. He further suggests that his visits were cancelled for the same reason.

[35] Mr. Rajmoolie testified as follows with respect to the prejudice he suffered regarding yard time and visitations:

a. Due to a disability caused by two broken legs with metal hardware in them (that occurred prior to Mr. Rajmoolie’s incarceration), he was not able to take advantage of the yard time. This was due to his inability to descend or ascend the stairs which was necessary to access the yard. He was told that there were not enough staff at the Toronto East Detention Centre to accommodate his transport to and from the yard via the elevator. He says that he complained to the staff but was ridiculed by staff and he was not accommodated. The Ombudsman was also contacted but nothing improved. Despite his repeated requests to access the yard, they were denied.

b. Because he was not able to participate in the yard visits, he was targeted as “weak”. He was muscled out of meals and his canteen as a result. This caused him to become more isolated and depressed.

c. Visits with his family and lawyer were cancelled due to his inability to be transported to the visitation area via the elevator. The same reason was provided – there were not enough staff to accommodate him.

d. Further, Mr. Rajmoolie testified that his surgeon had to be contacted to remove metal plates, etc. He advises that the medical staff were contacting the wrong hospital for approximately eight months. When they finally reached the appropriate office and he attended an appointment, he was advised that he should not have the metal plates removed while he was in custody. He was advised that following surgery, he would be required to be immobilized for about one month because it was complicated surgery. He declined to have the surgery, fearing for his safety due to mobility issues.

[36] Mr. Rajmoolie has expressed that he has suffered from anxiety and depression as a result of the conditions at the Toronto East Detention Centre. He has cut himself causing self-harm. This has been caused by the conditions of his incarceration.

[37] The Security Manager for the Toronto East Detention Centre, Sgt. John Lawson, testified in response to the suggestions that Mr. Rajmoolie suffered hardship. He said the following:

a. He had heard no complaints from Mr. Rajmoolie with respect to the lack of access to yard visits or anything else.

i. When he heard that Mr. Rajmoolie was considering a letter to the Ombudsman, he paid him a visit. (No letter was produced during this hearing.) When he spoke to Mr. Rajmoolie, he was advised by Mr. Rajmoolie that he required a pair of orthopaedic shoes. No mention was made of the lack of yard visits or other problems. The court was advised that it is Mr. Rajmoolie’s position that Sgt. Lawson was there to speak to him about shoes only. As such, he did not raise the issue of his inability to access the yard or any other problems he was experiencing while incarcerated at the Toronto East Detention Centre.

ii. Mr. Rajmoolie was advised, by Sgt. Lawson, to have a pair of shoes delivered to the institution. They were. When Sgt. Lawson inspected the shoes, he concluded that they were not orthopaedic shoes but were “Vans” (skater shoes). Mr. Rajmoolie was not permitted to have these but he was advised that if a pair of orthopaedic shoes was delivered and approved, they would be provided to him. No shoes were brought back to the institution for consideration.

iii. Sgt. Lawson advised that he visited Mr. Rajmoolie’s range on a number of occasions. The record book for such visits recorded, “No issues reported”. Mr. Lawson was never told that there were issues with Mr. Rajmoolie’s attendance in the yard – by him or anybody else.

b. Mr. Lawson suggested that it would be difficult for other inmates on Mr. Rajmoolie’s range to take food from him. At this institution, the inmates eat in their cells. The required meals go into the cells and the dishes come out.

c. Sgt. Lawson further advised that visits with lawyers were not curtailed because of Mr. Rajmoolie’s inability to get to the visiting area. One of his lawyers was asked to leave the institution because of Mr. Rajmoolie’s inappropriate conduct towards her.

d. Mr. Rajmoolie’s medical issues have been accommodated when requested. Further, there is evidence that Mr. Rajmoolie rejected medical assistance.

[38] I do not accept the evidence of Mr. Rajmoolie regarding increased hardship while incarcerated at the Toronto East Detention Centre. I accept the evidence of Sgt. Lawson: that when he was advised that Mr. Rajmoolie was having issues, he addressed them promptly and to the best of his ability. There is no evidence that any specific requests were raised by Mr. Rajmoolie that were not addressed. When medical treatment was offered, it was declined. When the offer to bring another pair of orthopaedic shoes was made, there was no response.

[39] The evidentiary record shows that Mr. Rajmoolie did participate in programs. He received treatment for his mental health and physical ailments.

[40] Based on the record before me, I am unable to conclude that the circumstances of Mr. Rajmoolie’s incarceration meet the requirement of “harshness” required to warrant additional credit for his pre-sentence custody. As such, Mr. Rajmoolie will not be given enhanced credit pursuant to R. v. Duncan.

Conclusion

[41] In conclusion, Mr. Rajmoolie is sentenced to a global sentence of 4 years, less the Summers credit of 25 months. When the credits are deducted from the sentence of 4 years (48 months), Mr. Rajmoolie is required to serve another 1 year and 11 months (23 months).

[42] The sentence shall be recorded as follows:

Count	Offence	Criminal Code Section	Sentence
2	Possession of a restricted firearm with readily accessible ammunition while not the holder of an authorization or licence for the firearm.	95(1)	3 years (36 months) less 2 years, 1 month (25 months) for a remaining 11 months to serve.
6	Possession of a firearm while prohibited from doing so by an order pursuant to s. 145 of the Criminal Code.	117.01(1)	9 months consecutive to Count 2.
8	Breach of recognizance.	145	3 months consecutive to Counts 2 and 6.

[43] Mr. Rajmoolie will be subject to the following ancillary orders:

(i) an order under s. 487.051(3) of the Criminal Code that Mr. Rajmoolie provide a sample of a bodily fluid for the purpose of forensic DNA analysis and storage in the national DNA database; and

(ii) an order under s. 109 of the Criminal Code for life.

Kelly J.

Released: March 9, 2020