COURT FILE NO.: CR – 0254/18
DATE: 20200915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LIIBAAN ABDI YUSUF and RASHID AHMED
Patricia Garcia and Iain Sunderland, for the Crown/Respondent
R. Craig Bottomley, for Liibaan Abdi Yusuf
Jeffrey Reisman, for Rashid Ahmed
HEARD: March 5 and June 8, 2020
REASONS FOR SENTENCE
P.J. Monahan J.
[1] Liibaan Abdi Yusuf and Rashid Ahmed have been convicted of various firearms-related offenses arising from the seizure of a firearm from a motor vehicle in which they were occupants on the evening of March 23, 2017. They are before the court today for sentencing.[^1]
[2] I note that these Reasons for Sentence were originally scheduled for delivery on April 6, 2020. However, due to the suspension of regular court operations due to the COVID 19 epidemic, and in accordance with the order of Chief Justice Morawetz dated March 15, 2020, that proceeding was adjourned. A further hearing was held by audio conference on June 8, 2020, to receive submissions on the extent to which the Covid 19 pandemic should be taken into account in determining a fit sentence in this case. Further submissions were then provided by email. These reasons take into account all of these submissions.
Circumstances of the Offences
[3] At approximately 8:16 PM on March 23, 2017, the superintendent of an apartment building at 3001 Finch Ave. West in Toronto called 911 to report the sounds of four gunshots coming from just south of his address. The superintendent stated that shortly after hearing these gunshots he had observed a vehicle travelling westbound on Finch Avenue at a high rate of speed. He noted that the vehicle was possibly a dark blue or black four-door vehicle. He told the 911 operator that he had heard the gunshots about five minutes earlier.
[4] A few moments later a second individual called 911 to report that he had heard three or four gunshots coming from south of 3001 Finch Ave. W., on Ardwick Boulevard. The second caller said he had observed a dark coloured car, possibly a Charger, speed off and go into a plaza on the north side of Finch Avenue. The second caller also reported having seen a blue van take off from the scene, as well as a third car parked on Ardwick Boulevard with its hazard lights flashing.
[5] Numerous police scout cars were dispatched to the area and, just before 8:30 PM, the first scout car on scene pulled up in front of 3001 Finch Avenue West. At that moment, a black Dodge Charger travelling south on Ardwick Boulevard from Finch Avenue West pulled into the driveway of 3001 Finch Ave. W. and parked in front of the building. Rashid Ahmed was the driver of the Charger, while Liibaan Yusuf was seated in the right rear passenger seat of the Charger.
[6] Both Mr. Ahmed and Mr. Yusuf exited the Charger and were subject to patdown searches. No weapons or other contraband were discovered through these searches. However, one of the officers found a loaded restricted firearm with an extended magazine on the floor of the vehicle, just in front of the rear passenger seat where Mr. Yusuf had been seated.
[7] As a result of that discovery, both Mr. Ahmed and Mr. Yusuf were arrested and charged.
[8] Mr. Yusuf brought a pretrial motion to have the firearm excluded from evidence on the basis that his detention, search and/or manner of arrest violated various of his rights as protected under the Canadian Charter of Rights and Freedoms. That application was dismissed
[9] At trial, I found that Mr. Yusuf had physical possession of the loaded firearm and that he placed it under the passenger seat in front of him in order to conceal it from the police. In making that finding, I relied on a variety of circumstances, including evidence found on a cell phone that was sitting on the rear passenger seat that Mr. Yusuf had been occupying. The cell phone contained a dozen photographs of a firearm with an extended magazine which appeared to be identical or very similar to the firearm found in the Charger. I found that this cell phone belonged to Mr. Yusuf. I further found that, in conjunction with the totality of the circumstances, the photographs of the firearm on the cell phone supported the inference that the firearm found in the Charger belonged to Mr. Yusuf and that he had been in possession of it immediately prior to exiting the vehicle.
[10] Mr. Yusuf was convicted of the following Criminal Code offences: (i) unauthorized possession of a loaded restricted firearm, contrary to s. 95 (1); (ii) possession of a weapon for a dangerous purpose, contrary to s. 88 (1); (iii) possession of a prohibited device (an extended magazine) for a dangerous purpose, contrary to s. 88 (1); (iv) unauthorized possession of a restricted firearm, contrary to s. 91 (1); (v) possession of a restricted weapon knowing its possession is unauthorized, contrary to s. 92 (2); and (vi) possession of a prohibited device knowing its possession is unauthorized, contrary to s. 92 (2).
[11] With respect to Mr. Ahmed, I found that he was the driver of the Dodge Charger when it engaged in an exchange of some sort with an unidentified vehicle on Ardwick Boulevard at 8:11 PM. It was at this point that two witnesses indicated that they heard gunfire. Although it was not possible to determine precisely what occurred at 8:11 PM, I found, based on the totality of the evidence, that there was some exchange of gunfire involving the Dodge Charger at that time.
[12] Although it was not possible to make a finding as to the source or precise nature of this gunfire, I found that the only reasonable inference that follows from the evidence is that Mr. Ahmed must have been aware that Mr. Yusuf was in possession of a firearm. Having been involved in some exchange of gunfire, Mr. Yusuf would have either used the firearm himself or made Mr. Ahmed aware of the fact that he had a firearm. In either event, Mr. Ahmed knew that Mr. Yusuf was in possession of a firearm in his vehicle.
[13] Accordingly, I found Mr. Ahmed guilty of the following Criminal Code offenses: (i) occupying a motor vehicle knowing that there was in that vehicle a restricted firearm, contrary to s. 94 (2); and (ii) occupying a motor vehicle knowing that there was in that vehicle a prohibited device, contrary to s. 94 (1).
Circumstances of the Accused
1. Liibaan Yusuf
[14] Liibaan Yusuf is currently 24 years old and was 21 years old the time of the offences. He lives with his mother and is one of six children.
[15] No PSR was prepared in respect of Mr. Yusuf and the court has limited information with respect to his family circumstances, his education and any prior employment.
[16] Three letters were filed in support of Mr. Yusuf.
[17] Two of the letters are from community-based organizations that work with immigrants, refugees and youths in need. Both of these letters refer to Mr. Yusuf having made positive strides through his involvement in various youth-led initiatives, workshops, community meetings and focus groups. However, no details on the nature of these programs or activities are provided. One of the letters refers to Mr. Yusuf as having completed “his grade 12 credit”, but it is unclear whether Mr. Yusuf has in fact completed high school. Both of these letters also include a virtually identical sentence referring to Mr. Yusuf’s “engagement and willingness to serve his community having been displayed through the relationships he has built with participants, staff, parents and community leaders/members.”
[18] The Crown noted that Mr. Yusuf’s father is the Executive Director of both these community organizations and that the authors of the letters in question report to him in some capacity. However, this relationship was not disclosed by the authors of the letters.
[19] The third letter filed in support of Mr. Yusuf is from a school where Mr. Yusuf has been an active volunteer since 2018. This letter describes Mr. Yusuf’s involvement in securing a three-week free soccer clinic at the school. The author of the letter believes that Mr. Yusuf has tremendous potential and that he is “kind, reliable, detail oriented and extremely competent.” The author also has no doubt that Mr. Yusuf “will succeed in his plans.” However, when counsel for Mr. Yusuf was asked at the sentencing hearing to describe his client’s plans, counsel indicated that Mr. Yusuf has “put his life on hold” and has been putting off every job opportunity pending the resolution of this proceeding.
[20] Mr. Yusuf has no prior criminal record. However, at the time of these offences, he was on bail in connection with a February 2017 charge under the Controlled Drugs and Substances Act of having possessed a controlled substance for the purpose of trafficking. One of the conditions of that bail was that he not possess any firearms. This CDSA charge was later withdrawn by the Crown.
2. Rashid Ahmed
[21] Mr. Ahmed is 25 years old and was 22 years old at the time of the offences. He is a Canadian citizen. He was born in Pakistan and came to Canada with his family in July 2000.
[22] A Pre-Sentence Report (PSR) was prepared which provides helpful information with respect to Mr. Ahmed’s background. The PSR observes that Mr. Ahmed was supported by both his parents while growing up and there was no domestic violence or substance abuse within the family home. He continues to hold a supportive relationship with his parents as well as his two older sisters, all of whom reside in the family home. The family has continued to support Mr. Ahmed through the current court proceedings. His parents as well as one of his sisters filed letters indicating their commitment to continuing to support their son/brother.
[23] Mr. Ahmed has no prior criminal record. At the time of the sentencing hearing, he was completing his final year of an undergraduate degree program in Business Administration and IT at York University. He has also been employed with a local car rental company since 2017.
[24] Mr. Ahmed indicates that he aspires to join the real estate industry as a mortgage broker and is presently studying to gain his mortgage license. His main career goal is to work in IT and become a mortgage broker as a second source of income.
[25] The PSR notes that Mr. Ahmed is deemed a suitable candidate for community supervision to provide him with the necessary support for positive change in his life.
Positions of the Parties
1. Mr. Yusuf
[26] The Crown seeks a global sentence of six years in custody for Mr. Yusuf, prior to taking into account credit for pre-sentence custody and house arrest.
[27] In proposing this sentence, the Crown relies upon numerous cases decided by this court over the past decade that clearly establish that denunciation, deterrence and protection of the public are the predominant sentencing objectives for serious gun crimes. The Crown has also provided the court with statistics compiled by the Toronto Police Service (TPS) summarizing the numbers of shooting occurrences and related victims in the City of Toronto dating back to 2004. These statistics show that between 2005 and 2014, the number of shootings and victims in Toronto either stayed constant or declined somewhat. However, since 2015, there has been a significant increase in the shooting incidents recorded by TPS in the City of Toronto and, in 2019, there was a record number of shooting occurrences and related victims. The Crown also filed statistics which indicate that 31 Division, the area in which these incidents occurred, has a high volume of shooting occurrences and victims.
[28] In proposing a global sentence of six years, the Crown acknowledges that this may well exceed the established range for a first s. 95 offence where the use and possession of the gun is associated with criminal activity. As Code J. observed recently in R. v. Graham, the Court of Appeal appears to have held that three to five years is the appropriate range in such circumstances.[^2] In the Crown’s submission, the significant increase in gun crime over the last five years requires even greater emphasis on the principles of denunciation and deterrence in sentencing. The Crown also argues that although Mr. Yusuf is a youthful first offender, there are no other mitigating circumstances in his case. He has provided no evidence of any attempts to secure employment or complete his education. He has also expressed no remorse for these offences.
[29] The Crown also tendered various videos and images captured from Mr. Yusuf’s cell phone. Some of these videos show Mr. Yusuf making various hand gestures which, in the Crown’s submission, resemble the pointing of a handgun. Two of the videos show an individual who resembles Mr. Yusuf firing a handgun at the shooting range. Various videos also depict stacks of $100 Canadian bills in large duffel bags.
[30] For his part, Mr. Yusuf argues that a global sentence of 30 months in custody, prior to taking into account credit for pre-sentence custody and house arrest, is appropriate in the circumstances. Counsel for Mr. Yusuf does not dispute the fact that gun crime is serious and that the principles of denunciation and deterrence should play a significant role in sentencing. However, counsel also notes that there is no evidence that increased custodial sentences will affect the level of gun crime in a given community.
[31] Mr. Yusuf is a 24-year-old first-time offender. He and his family are of the view that he has considerable hope and potential for the future. His counsel indicates that Mr. Yusuf is embarrassed by the videos and images found in his phone. In any event, counsel for Mr. Yusuf argues that the Crown cannot rely on the video evidence from Mr. Yusuf’s cell phone as an aggravating circumstance in determining sentence since it failed to hold a Gardiner hearing and prove any facts upon which it relies, in accordance with s. 724 of the Criminal Code.
2. Mr. Ahmed
[32] The Crown seeks a global custodial sentence of two years less a day plus three years probation for Mr. Ahmed, prior to taking into account credit for presentence custody and house arrest.
[33] The Crown notes that Mr. Ahmed was the driver of a vehicle knowing that one of the occupants was in possession of a loaded restricted firearm. The seriousness of this offense is reflected by the maximum sentence of 10 years imprisonment prescribed by Parliament.
[34] However, the Crown acknowledges that the PSR with respect to Mr. Ahmed is generally positive. He has a loving and supportive family and has continued his university education and part-time employment while this criminal proceeding has been ongoing. He has reasonably positive prospects for rehabilitation and any sentence imposed should take account of those prospects. On this basis, the sentence proposed of two years less a day is appropriate.
[35] Mr. Ahmed proposes a sentence of 12 months in custody, prior to taking into account credit for pre-sentence custody and house arrest. His counsel notes that he has no criminal record and has been enrolled in University for a number of years. He has also been volunteering at a local mosque since he was 12 years old and has very close and supportive relationships with his family. He has good prospects for rehabilitation.
Applicable Sentencing Principles
1. General
[36] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that furthers one or more of the following six objectives:
(i) to denounce unlawful conduct;
(ii) to deter the offender and others from committing offences;
(iii) to separate offenders from society, where necessary;
(iv) to assist in the rehabilitation of offenders;
(v) to provide reparations for harm done to victims or the community; and
(vi) to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[37] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.
2. Use of TPS Statistics in Sentencing for Gun Crimes in Toronto
[38] As discussed above, a considerable focus of the submissions on sentence related to the principles applicable in sentencing for serious firearms offences, including possession of a loaded restricted firearm contrary to s. 95 (1). In particular, the parties differed on the extent to which it was appropriate to take into account the increase in shooting occurrences and related victims in the City of Toronto over the past five years in determining the appropriate sentences in this case.
[39] It is settled law that sentences imposed for serious firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public. These goals reflect the dangers posed by loaded handguns, particularly in the City of Toronto.[^3] Moreover, the importance of these goals of denunciation and deterrence has not been diminished by the fact that in R. v. Nur,[^4] the Supreme Court of Canada found mandatory minimum sentences to be unconstitutional in certain cases of gun possession. Nur affirms that offenders convicted of “truly criminal conduct” in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation.[^5] As I will describe more fully below, this includes first offences under s. 95.
[40] What is the significance, in this context, of the statistics referred to above showing a significant increase in shooting occurrences and victims in the City of Toronto over the last five years? In particular, does this recent trend justify even lengthier custodial sentences in order to properly deter and denounce such dangerous activity?
[41] In my view, it would be inappropriate to either increase or decrease sentences for gun crimes based on trends in such statistics, for two reasons.
[42] First, while legal sanctions, including custodial sentences, certainly have an overall deterrent effect on criminal behaviour, the precise nature of that deterrent effect is difficult to quantify. As Chief Justice McLachlin noted in R v. Nur, it is not clear that increasing the severity of punishment, in and of itself, will produce particular behavioural outcomes in relation to specific offences.[^6] Given that the significance of the statistics relied upon by the Crown is not self-evident in the sentencing context, such evidence should only be admitted through a properly qualified expert who could be subject to cross-examination.[^7]
[43] Second, by their very nature, crime statistics reflect overall societal trends and, as such, do not bear directly upon the particular circumstances of an individual accused. This kind of statistical information is no doubt relevant and important for police, government and Parliament, as they attempt to grapple with the significant and pressing problem of gun violence. But the role and obligation of a court in imposing a sentence under s. 718 is rather different.
[44] The distinctive judicial role is to determine a just and appropriate sentence for this accused. This is necessarily a highly individualized exercise, tailored to the gravity of the offence and the moral blameworthiness of the offender.[^8] The fact that overall gun crime may be increasing (or, as the case may be, decreasing) in a particular municipality at a particular moment in time does not speak to the moral blameworthiness of an individual accused. Accordingly, in my view it would not be appropriate to rely upon recent trends in criminal activity involving firearms in order to increase (or decrease) the sentence that would otherwise be found appropriate in an individual case.[^9]
[45] I therefore find that the criminal statistics tendered by the Crown could only have been admitted by qualified expert and, in any event, are not probative of any matter in dispute on this sentencing hearing. They have played no part in this sentencing decision.
Aggravating and Mitigating Circumstances
1. Liibaan Yusuf
[46] I find the aggravating circumstances in relation to Mr. Yusuf to be as follows:
(i) Mr. Yusuf was carrying a loaded restricted firearm in a motor vehicle in a residential neighbourhood;
(ii) the firearm had an extended magazine which was loaded;
(iii) the Dodge Charger in which Mr. Yusuf was riding was involved in an exchange of gunfire with another vehicle;
(iv) this exchange of gunfire occurred shortly after 8 PM on a residential street. There were numerous innocent bystanders, including children, walking nearby, who could have been killed or injured by this gunfire.
[47] The mitigating circumstances in relation to Mr. Yusuf are as follows:
(i) Mr. Yusuf was 21 years old at the time of this incident; and
(ii) he has no prior criminal record.
[48] There were a number of other considerations proposed by the parties which have not factored into my decision on sentence.
[49] The Crown sought to rely upon photos and videos on Mr. Yusuf’s phone as an aggravating circumstance. Counsel for Mr. Yusuf indicated that his client was “embarrassed” by the material on his phone. It is not clear whether that embarrassment is merely over the fact that the photos and videos were discovered, or whether it reflects a genuine intention on his part to alter his behaviour in the future. In any event, no Gardiner hearing was held and I have no knowledge of the circumstances in which the photos were taken or the videos were made. I find I am unable to determine the significance of the material on Mr. Yusuf’s phone. Accordingly, I have not relied upon this material in determining sentence.
[50] I give no weight to the letters of support tendered from the two community-based organizations referred to earlier. As noted, Mr. Yusuf’s father is the Executive Director of these two organizations. That fact was not disclosed in the letters, which I find calls into question the objectivity and independence of the letters. These concerns are reinforced by the fact that the two letters contain a virtually identical sentence describing Mr. Yusuf’s service to his community. As for the third letter from a school where Mr. Yusuf has volunteered, the author of that letter expresses the view that Mr. Yusuf “will succeed in his plans”. However, the nature of those plans is not described and counsel for Mr. Yusuf acknowledges that his client has essentially put his life on hold since this incident, which took place over three years ago.
[51] I further find that it is not possible to assess whether Mr. Yusuf has any realistic prospects for rehabilitation at this time. No evidence was provided as to any of Mr. Yusuf’s educational activities or goals, or whether he has been employed in any capacity over the past three years. Mr. Yusuf did not express any remorse, or take responsibility, for his offences. While not an aggravating circumstance, his limited rehabilitative prospects and lack of remorse reflects the absence of a mitigating circumstance.
2. Mr. Ahmed
[52] I find the aggravating circumstances in relation to Mr. Ahmed to be as follows:
(i) Mr. Ahmed was the driver of a motor vehicle knowing that one of its occupants was in possession of a loaded restricted firearm with an extended magazine; and,
(ii) that motor vehicle was involved in an exchange of gunfire with another vehicle in a residential neighbourhood while numerous innocent bystanders were walking nearby. These bystanders, including children, could have been struck and/or killed by this exchange of gunfire.
[53] The mitigating circumstances in relation to Mr. Ahmed are as follows:
(i) Mr. Ahmed was 22 years old at the time of the incident in question;
(ii) he has no prior criminal record;
(iii) he has a close-knit and supportive family which is committed to assisting him in avoiding criminal activity in the future;
(iv) despite these ongoing criminal proceedings, he has continued to pursue his education and has completed the requirements for a degree in Business Administration and IT from York University;
(v) he has employment experience and defined career goals;
(vi) overall, Mr. Ahmed appears to have significant rehabilitative potential.
Analysis
1. Liibaan Yusuf
[54] As noted above, there is a wide divergence in the positions of the parties with respect to the appropriate sentence for Mr. Yusuf. The Crown proposes a custodial sentence of six years, while Mr. Yusuf proposes two and one half years.
[55] Counsel for the Crown and defence cited numerous cases in support of their respective positions. The vast majority of the cases relied upon by both counsel are clearly distinguishable from the circumstances of the present case. Many of the cases cited by the Crown involved repeat offenders with significant criminal records, while many of the defence cases involved accused who had significant mitigating circumstances which are simply not present in the case of Mr. Yusuf.
[56] In considering comparable precedents, I have found a number of cases to be particularly relevant and helpful.
[57] The first of these is R v. Nur.[^10] The accused in this case was in possession of a loaded prohibited firearm with an extended magazine outside a community centre. When police arrived on scene, Mr. Nur ran away and discarded the firearm. He was 19 years old, had no prior criminal record and had pleaded guilty. Code J. imposed a sentence of 40 months, relying on the fact that Parliament had prescribed a mandatory minimum sentence of three years for a first-time offender under s. 95 (1) of the Criminal Code. Code J. also relied upon the fact that Mr. Nur had strong family support and was a “young man with considerable potential”.
[58] On appeal, the Court of Appeal found the mandatory minimum sentence of three years to be inconsistent with s. 12 of the Charter and therefore of no force and effect. However, Doherty J.A. upheld the sentence imposed by Code J. on the following basis:[^11]
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. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.
[59] The Supreme Court of Canada, although agreeing with the Court of Appeal that the mandatory minimum sentence of three years was unconstitutional, also upheld the sentence imposed by Code J. Chief Justice McLachlin noted that firearm-related offenses are serious crimes which justify exemplary sentences in appropriate circumstances:[^12]
In most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment….
This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.
[60] Also relevant and helpful is R. v. Marshall.[^13] The accused, who was 23 years old with no criminal record, was convicted of possessing a loaded prohibited firearm under s. 95 (1). The firearm was found hidden in a closet in an apartment. The accused and a number of associates were involved in drug trafficking activity. The trial judge sentenced the accused to three and half years imprisonment for possession of a loaded prohibited firearm and a further sentence of one year for an unrelated conviction for possession of cocaine for the purpose of trafficking.
[61] This sentence was upheld by the Court of Appeal which noted that the accused in this case had committed an offence at the “true crime” end of the s. 95 spectrum of offenses described by the Court of Appeal in Nur. Although the offender was youthful and this was his first penitentiary sentence, his crime was serious and committed in the course of other drug-related crimes.
[62] In R. v. Mansingh, the accused threw away a handgun while fleeing from police.[^14] When apprehended he also was carrying an extended magazine in his hand. Mr. Mansingh was 27 years old with no prior criminal record. While noting that Mr. Mansingh had also been engaged in low level trafficking in marijuana, the trial judge found that he had taken important and positive steps toward rehabilitation. He imposed a sentence of 43 months.
[63] This sentence was upheld on appeal. Citing Nur, the Court of Appeal reaffirmed the fact that the offences committed by Mr. Mansingh require the imposition of substantial jail terms even if the offender is young and has no criminal record. The Court of Appeal observed that Mr. Mansingh not only fled from the police while armed with a loaded handgun, he also threw that loaded weapon away in a place where it could easily have been found by a young child.[^15]
[64] While no two cases are identical, I find that the circumstances of Mr. Yusuf are broadly comparable to those of the accused in Nur, Marshall and Mansingh. The accused in these prior cases were youthful first offenders with no prior criminal records. Each of them had possessed a loaded prohibited firearm with an extended magazine in circumstances which posed a significant danger to the public. They each received sentences of between 40 and 43 months, sentences which were upheld on appeal.
[65] The circumstances in Nur are particularly relevant and comparable to the facts in this case. In Nur the accused was observed standing outside a community centre with a number of other youths. When approached by police, Nur fled and discarded a firearm he had hidden under his jacket. Here, Mr. Yusuf had a firearm in his possession in a motor vehicle, which he attempted to hide under the front seat when the vehicle was approached by police. The danger posed to the public by such conduct is confirmed by the fact that the vehicle in which Mr. Yusuf was riding was involved in an exchange of gunfire with another vehicle on a residential street, while numerous innocent bystanders were walking nearby.
[66] It should also be noted that in Nur, Marshall and Mansingh, the accused were each found to have significant rehabilitative potential, along with various other mitigating circumstances. This is not the case with Mr. Yusuf.
[67] Taking all of the relevant circumstances into account, I find that a just and appropriate sentence for Mr. Yusuf, prior to factoring in credit for presentence custody and time under house arrest, is 40 months.
2. Rashid Ahmed
[68] The most significant aggravating circumstance in the case of Mr. Ahmed is that he was the driver of a motor vehicle knowing that one of its occupants was in possession of a loaded restricted firearm with an extended magazine. That motor vehicle was involved in an exchange of gunfire with another vehicle in a residential neighbourhood while numerous innocent bystanders, including children, were walking nearby. This conduct poses a significant risk to public safety.
[69] At the same time, Mr. Ahmed was just 22 years old at the time of the incident and has no prior criminal record. He has a close-knit and supportive family that is committed to assisting him in avoiding criminal activity in the future. I also note that despite these ongoing criminal proceedings, he has continued to pursue his education and has completed the requirements for a degree in Business Administration and IT from York University. I find that he has significant rehabilitative potential.
[70] Although counsel for Mr. Ahmed argued that a sentence of 12 months in custody would be appropriate, most of the cases he relies upon involved sentences of between 18 months to two years. For example, in R. v. Rutledge, the accused was a 56-year-old farmer who had lived on his family farm for most of his life. Mr. Rutledge’s sons were involved in drug trafficking activity, and he had allowed them to store handguns on the farm property. Police found over 20 long guns, rifles and shotguns stored in or near to an unlocked gun cabinet. The court accepted the accused’s evidence that when others were around, the gun cabinet was normally locked. The court also accepted Mr. Rutledge’s evidence that the long guns were obtained for primary purposes of animal control, target shooting and a business. On this basis, the court found that a sentence of 18 months was appropriate, prior to taking into account credit for a lengthy period of house arrest.[^16]
[71] Counsel for Mr. Ahmed also relied upon R. v. Filian-Jimenez, in which the accused was sentenced to 18 months for unlawful possession of a loaded restricted firearm. The trial judge noted that the accused had repudiated his membership in a gang, had entered an early guilty plea, was engaged in full-time employment and had fundamentally changed his lifestyle. He was in possession of the gun because shots have been fired at his house and he feared for the safety of his mother and his girlfriend with whom he shared the house. The Court of Appeal found that although the sentence of 18 months was “a very low sentence, it was not manifestly unfit”.[^17]
[72] In R. v. Cadienhead, the accused was arrested on the street for carrying a loaded prohibited firearm hidden in his underwear. He was 20 years old, had no prior firearms offences and had expressed remorse. He had also experienced a traumatic event at a very young age and had suffered a difficult childhood. Taking these various considerations into account, the trial judge sentenced Mr. Cadienhead to 18 months for possession of the prohibited loaded firearm.
[73] There are no doubt distinctions that could be drawn between the circumstances in these cases and those in relation to Mr. Ahmed. For example, it could be argued that the conduct engaged in by Mr. Ahmed is more serious than that of the accused in Rutledge, who carelessly stored firearms in a private residence and did not possess them in a public place. On the other hand, unlike in Rutledge and the other cases relied upon by Mr. Ahmed, Mr. Ahmed was not himself in possession of the firearm.
[74] I nevertheless find these cases relevant and helpful in determining an appropriate sentence for Mr. Ahmed. Taking all of the circumstances into account, I find that I find that a just and appropriate sentence for Mr. Ahmed is a custodial sentence of 18 months, prior to taking into account credit for presentence custody and house arrest.
[75] I must also consider the principle of parity in s. 718.2 (b). As described above, I have found that a fit sentence for Mr. Yusuf to be 42 months. The question which arises is whether there is an unacceptably large disparity between that sentence and an 18-month sentence for Mr. Ahmed.
[76] In my view, the significant difference in the sentences imposed appropriately reflects the different circumstances of the two accused and the offences which they have committed. Mr. Ahmed’s offences, while serious, are much less blameworthy than those of Mr. Yusuf. There are also a number of significant mitigating factors and Mr. Ahmed’s case which are not present in relation to Mr. Yusuf. Having given careful consideration to the relevant circumstances, I find their sentences to be consistent with the principle of parity.
3. Credit for Presentence Custody and House Arrest
[77] There is no dispute that Mr. Yusuf and Mr. Ahmed should each receive credit for their period of presentence custody on a 1.5 to 1.0 basis. Mr. Yusuf was in custody between March 23, 2017 and April 21, 2017, a total of 30 days, which results in a credit of 45 days. Mr. Ahmed was in custody between March 23, 2017 and April 11, 2017, a total of 20 days, which results in a credit of 30 days.
[78] Where the parties differ is on the appropriate credit for the amount of time spent on house arrest. Mr. Yusuf was on house arrest from April 21, 2017 until July 24, 2018, a total of 460 days, while Mr. Ahmed was on house arrest from April 11, 2017 until June 28, 2018, a total of 444 days.[^18] During this period of house arrest, Mr. Yusuf and Mr. Ahmed were required to remain in their residence at all times except for medical emergencies, travelling to court, meeting with counsel, or in the presence of their surety.
[79] The Crown proposes that each of the accused receive credit for their period of house arrest on a 1 to 8 basis (i.e. one day of credit for every eight days spent under house arrest). This would result in a ‘house arrest’ credit of 58 days for Mr. Yusuf and 56 days for Mr. Ahmed.
[80] Mr. Yusuf proposes that he receive credit for the period of house arrest on a 1 to 4 basis, or 115 days. Mr. Ahmed proposes that he receive a credit for the period of house arrest of five months, which is approximately 1 day of credit for every 3 days of house arrest.
[81] It is well established that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.[^19] At the same time, any credit for a period of house arrest must be assessed on a flexible basis rather than in accordance with a rigid formula. This reflects the fact that the impact of house arrest will vary according to the stringency of the conditions and the ability of the offender to continue to carry on normal relationships, employment and activity.
[82] Although there is no strict formula in determining credit for time spent under house arrest, where there is evidence of a significant impact on the offender’s liberty, courts have often awarded credit in the range of a 1 to 4 basis.[^20] At the same time, an offender who seeks such credit must be prepared to show how the period under house arrest has impacted his liberty. In the absence of any such evidence, courts have refused to grant any credit for the period of house arrest.[^21]
[83] Mr. Yusuf did not provide particulars with respect to the impact on him of the time spent under house arrest. He did not suggest that the house arrest prevented him from accessing education or employment opportunities. While I can infer that the approximately 15 months of house arrest must have impacted his liberty in a meaningful way, the precise nature of that impact is difficult to assess and quantify.
[84] Mr. Ahmed provided somewhat more detail in this regard. Mr. Ahmed pointed out that a condition of his release in April 2017 was that he not operate a motor vehicle. Because his mother could not drive, this made it much more difficult for him to continue to pursue his post-secondary studies at York University.
[85] I accept that the substantial period of house arrest would have had a meaningful impact on both offenders and should be taken into account as a mitigating factor on sentence. I further find that the impact on Mr. Ahmed appears to have been more significant than on Mr. Yusuf. Accepting that there is no rigid formula, I would grant Mr. Ahmed a credit of 1 day for every 4 days spent on house arrest, or 111 days, and Mr. Yusuf a credit of 1 day for every 5 days on house arrest, for a credit of 92 days.
[86] This results in a total credit (taking into account both presentence custody and house arrest) of 141 days for Mr. Ahmed, and 137 days for Mr. Yusuf.
Additional Credit for Covid 19
[87] As noted above, on June 8, 2020 counsel provided submissions with respect to whether the impact of Covid 19 should affect the determination of a fit sentence in this case.
[88] At the June 8, 2020 hearing, counsel for Mr. Yusuf and Mr. Ahmed requested that the date for delivery of reasons for sentence be delayed for a number of months in order to gain a better appreciation of the impact of the pandemic on the conditions of custody in federal and/or provincial correctional institutions. This request was accepted by the Crown and it was jointly agreed to schedule delivery of reasons for sentence on September 15, 2020, subject to any requests for a further adjournment in light of subsequent developments.
[89] At the time of the June 8, 2020 hearing, defence counsel took the position that their clients should not be taken into custody if there are active cases of Covid 19 at the facility where their sentences will be served. Defence counsel also submitted that if the conditions of custody are expected to be harsher than normal due to the implementation of protocols designed to limit the spread of Covid 19, these conditions should result in a reduction of sentence.
[90] In response, the Crown took the position that if there is evidence of any large-scale outbreak of Covid 19 in any federal or provincial correctional facilities, such evidence can be produced on or before the scheduled sentencing date. The Crown also took the position that defence counsel could similarly tender evidence of the impact of Covid 19 protocols on the conditions of custody.
[91] No such evidence has been tendered by defence counsel. As such, I have no evidence with respect to the prevalence at this time of Covid 19 in any federal or provincial correctional institution, nor evidence on the extent to which the conditions of custody have been made harsher than normal as a result of measures implemented to curb the spread of Covid 19. Nor do I have any evidence as to whether either Mr. Yusuf or Mr. Ahmed, both of whom are in their early 20s, suffer from pre-existing medical conditions which would make them more vulnerable to Covid 19. It goes without saying that I have no evidence as to how the Covid 19 pandemic will unfold in the future, assuming any such predictions could be assessed by this court and found to be valid or reliable.
[92] I note that in cases where credit is granted for pretrial custody or conditions of house arrest, evidence as to the impact of these conditions on the accused is required. Consistent with that approach, in R. v. Lariviere, the Court of Appeal held that an otherwise fit sentence cannot be shortened due to Covid 19 in the absence of evidence indicating any unique or personal vulnerability to the virus, or evidence regarding the particular circumstances of an individual’s incarceration.[^22] Indeed, in the absence of any evidence as to current conditions in correctional facilities, much less a reliable prediction as to the manner in which the pandemic will unfold over the next months or years (and thus might affect future conditions in correctional facilities), the calculation of any such “Covid 19 credit” would be little more than speculation and guesswork. I have not been provided with any reasoned basis upon which such a Covid 19 credit could be calculated. On this issue, I adopt the analysis of Smith J. in R. v. Audet:[^23]
As the experts cannot proffer any reliable prediction about the length of the pandemic, I have no evidence whatsoever to use as a basis for calculating an appropriate reduction. Any reduction that I might choose to make to the length of Mr. Audet’s sentence would therefore be arbitrary and capricious. The National Parole Board will be in a much better position, some months down the road, to decide what to do about the Covid 19 problem, as it relates to Mr. Audet, than I am today. That being the case, I will not make a Covid 19 reduction.
[93] I recognize that in R. v. Hearns, Justice Pomerantz of this court accepted the Defence/Crown joint submission on sentence of time served plus probation, in light of Covid 19.[^24] In so doing, however, Pomerantz J. was not required to speculate as to the future prevalence of Covid 19, or the nature of its ongoing effect on conditions of incarceration. She merely found that the substantial period of pretrial custody, credited in the normal 1.5 to 1 fashion, along with a period of probation, resulted in an overall penalty that was consistent with sentencing principles. Defence counsel do not suggest that a time served disposition would be appropriate in this case. I see no inconsistency between the reasons of Pomerantz J. in Hearns and my conclusion that no additional credit for the future effects of Covid-19 should be granted in this case.
Disposition
[94] I sentence Mr. Yusuf to 40 months for unauthorized possession of a loaded restricted firearm, contrary to s. 95 (1); to 12 months concurrent for possession of a prohibited device for a dangerous purpose, contrary to s. 88 (1); and 12 months concurrent for possession of a weapon for a dangerous purpose, contrary to s. 88 (1). The remaining counts against Mr. Yusuf are stayed in accordance with the principle in R. v. Kienapple.[^25]
[95] After factoring in the credit of 137 days, Mr. Yusuf has 2 years, 11 months and 15 days remaining to be served.
[96] I sentence Mr. Ahmed to 18 months for occupying a motor vehicle knowing that there was in that vehicle a restricted firearm, contrary to s. 94 (2); and to 12 months concurrent for occupying a motor vehicle knowing that there was in that vehicle a prohibited device, contrary to s. 94 (1).
[97] After factoring in the credit of 141 days as described above, Mr. Ahmed has one year, one month and 10 days remaining to be served.
[98] Finally, I impose a s.109 weapons prohibition for life, as well as a DNA order, in respect of both Mr. Ahmed and Mr. Yusuf.
P. J. Monahan J.
Released: September 15, 2020
COURT FILE NO.: CR – 0254/18
DATE: 20200915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LIIBAAN ABDI YUSUF and RASHID AHMED
REASONS FOR SENTENCE
P. J. Monahan J.
Released: September 15, 2020
[^1]: There was a third occupant of the motor vehicle who was also charged in connection with the events described below. However, this individual was acquitted of all charges at trial and thus is not referenced further in these Reasons for Sentence.
[^2]: R. v. Graham, 2018 ONSC 6817, at para 38.
[^3]: See R. v. Brown, 2010 ONCA 745, at paragraph 14; R. v. Graham, 2018 ONSC 6817, at paragraph 36.
[^4]: R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773 at paragraph 105.
[^5]: R. v. Slack, 2015 ONCA 94 at paragraph 23; R. v. Ellis, 2016 ONCA 598 at paragraph 78.
[^6]: See R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773 ("Nur SCC") at paras 113-114. As noted by Chief Justice McLachlin, the certainty of punishment is at least if not more important than the severity of punishment in deterring criminal behaviour.
[^7]: See R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No 3252 (Ont. C.A.) (“Hamilton”) at para 76.
[^8]: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at paragraph 81.
[^9]: Although delivered in a very different context, the thoughtful comments of Doherty JA in Hamilton at paras 117-128, on the importance of linking generalizations regarding social trends concretely to the particular circumstances of the offender before the court, provide important guidance in the present case.
[^10]: 2011 ONSC 4874
[^11]: R. v. Nur, 2013 ONCA 677 at para 206.
[^12]: Nur SCC, at paras 3, 5.
[^13]: 2015 ONCA 692.
[^14]: 2017 ONCA 68.
[^15]: Mansingh, at para 24.
[^16]: R. v. Rutledge, 2015 ONSC 6625 at para 63.
[^17]: R. v. Filian-Jimenez, 2014 ONCA 601, at para 2.
[^18]: This includes both the start date as well as the end date of the period under house arrest.
[^19]: R. v. Downes, (2006), 79 0R (3rd) 321 (CA).
[^20]: See R v Downes (5 months credit for 18 months under house arrest); R v Mitchell, [2009] O.J. No. 509 (SCJ) (18.5 months credit for 73 months house arrest); R v. Howell, 2007 CanLII 50875 (ON SC) (4 months credit for 15 months under house arrest)
[^21]: See R. v. Stewart, 2017 ONSC 5613 at para. 44; R. v. Graham at para 49.
[^22]: R. v. Lariviere, 2020 ONCA 324, at para. 17.
[^23]: R. v. Audet, 2020 ONSC 5039, at para 42. See also the thoughtful analysis of this issue by Spies J. In R. v. Niyongado, 2020 ONSC 4752, at paras 76 to 84.
[^24]: See R. v. Hearns, 2020 ONSC 2365.
[^25]: 1974 CanLII 14 (SCC), [1975] 1 SCR 729.