COURT FILE NO.: CR-19-10000598-0000
DATE: 20210708
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KHALID JAMA and JABRIL FARAH
S. Scratch, for the Crown
J. Penman, for Mr. Jama
A. Monaco and M. Fisico, for Mr. Farah
HEARD: June 14-15, 2021.
REASONS FOR SENTENCE
SCHRECK J.:
[1] Following a lengthy trial involving several defendants, Khalid Jama and Jabril Farah were each convicted of one count of recklessly discharging a restricted firearm, contrary to s. 244.2(1)(a) of the Criminal Code.
[2] In addition to the discharge firearm offence, which was Count 6 in the Indictment, Mr. Farah was also convicted of possession of a loaded restricted firearm (Count 8) and possession of a firearm knowing he had no licence (Count 9) arising out the same events. Mr. Farah was also convicted of several offences arising from the seizure of a firearm during the execution of a search warrant: possessing a firearm with readily accessible ammunition (Count 21), possession of a firearm knowing he had no licence (Count 22) and possession of a firearm with an altered serial number (Count 23).
[3] Mr. Farah was also convicted of a number of drug offences: possession of oxycodone for the purpose of trafficking (Count 25), possession of heroin for the purpose of trafficking (Count 26), possession of fentanyl for the purpose of trafficking (Count 27), possession of cocaine for the purpose of trafficking (Count 28), conspiracy to traffic cocaine (Count 30), conspiracy to traffic oxycodone (Count 31) and trafficking cocaine (Count 39).
[4] Both defendants are now before the court for sentencing. They have both challenged the mandatory minimum penalties for reckless discharge of a firearm in s. 244.2(3) of the Criminal Code on the basis that they violate the s. 12 Charter guarantee against cruel and unusual punishment. Section 244.2(3)(a)(i) provides that the mandatory minimum penalty is five years for a first offence if the firearm in question is restricted or prohibited. Otherwise, it is four years according to s. 244.2(3)(b). Both defendants submit that they are subject to the four-year minimum, but submit that both minimum penalties are unconstitutional. I have concluded that the five-year mandatory minimum penalty applies to both defendants.
[5] Mr. Jama is sentenced to imprisonment for a term of four years, three months and three weeks, beginning today, which represents a sentence of five years less credit for presentence custody.
[6] Mr. Farah is sentenced to imprisonment for a period of two years less a day, which represents a sentence of six years and 22 and a half months less credit for presentence custody. He is also placed on probation for a period of 12 months.
[7] As I have concluded that the appropriate sentence for both defendants on the discharge firearm count does not fall below the mandatory minimum, it is unnecessary for me to consider the constitutional issue and I decline to do so.
[8] Following are the reasons for my conclusions.[^1]
I. FACTS
A. The Offences
[9] The facts underlying the convictions are set out in detail in my reasons for judgment, reported as R. v. Donison, 2021 ONSC 2297.
[10] With respect to the firearm offences in Counts 6, 8 and 9, on the evening of March 24, 2018, Mr. Jama drove Mr. Farah in a van to the parking lot of an apartment complex. They drove through the parking lot, drove away, and returned a short time later. They then drove through the parking lot again and stopped behind a parked sedan in which there were two men. Mr. Farah, who was in the passenger seat, then fired at least three shots from a handgun in the direction of the sedan. Mr. Jama then quickly drove away, as did the sedan. The inhabitants of the sedan were never identified. There is no evidence as to whether they suffered any injuries or whether the sedan was damaged.
[11] The additional firearm offences Mr. Farah was convicted of in Counts 21, 22 and 23 are based on the seizure of an STI Trojan handgun during the execution of a search warrant on May 3, 2018 at an apartment unit referred to during the trial as “Upti’s.” It was the Crown’s theory that this apartment unit was used as a stash house by several of the defendants and that the items found in it were jointly possessed by them. While it was the Crown’s theory that the STI Trojan was the same handgun that was used on March 24, 2018, I was not prepared to conclude that it was based on the evidence at trial.
[12] Mr. Farah’s drug offence convictions are based on seizures from Upti’s as well as intercepted telephone communications which show that Mr. Farah and others were engaged in street-level trafficking of a variety of controlled substances on an ongoing basis.
B. The Offenders
(i) Mr. Jama
(a) Background
[13] Mr. Jama is 26 years old and was born in Toronto. He and his older sister were raised by their mother alone, the father having left the family when Mr. Jama was very young. Mr. Jama grew up in the Weston Road and Lawrence Avenue West area of Toronto, an area with a significant racialized population. Like many of the people in the area, Mr. Jama’s family lived in relative poverty. The area is plagued by criminal activity, some of which is violent.
[14] Mr. Jama dropped out of high school when he was 14 years old. He began to associate with peers who were a negative influence on him and began to drink alcohol and smoke marijuana on a regular basis.
[15] In 2014, Mr. Jama went to Somalia to stay with his father. Somalia was in the midst of a longstanding civil war and Mr. Jama witnessed the effects, including seeing dead bodies in the streets.
[16] While in Somalia, Mr. Jama had significant conflicts with his father and grandfather because of his inability to adapt to the local culture and adhere to the dictates of their religion. Mr. Jama was beaten by family members and had his passport taken from him by his grandfather. At one point, Mr. Jama spent four months in a Somali jail, which had somehow come about as the result of actions by his grandfather.
[17] Mr. Jama returned to Canada in 2017. He was, as his counsel put it, a “lost soul” by then. It was then that he became involved in criminal activity.
(b) Other Convictions
[18] In August 2017, Mr. Jama robbed a taxi driver while using a firearm. On May 14, 2019, in reasons reported as R. v. Jama, 2019 ONSC 3096, Roberts J. of this court sentenced him to a term of imprisonment of two and a half years (four and a half years less credit for presentence custody and stringent bail conditions). Mr. Jama was on bail in relation to that offence when he committed the offences he is being sentenced for today. Earlier in 2019, Mr. Jama was convicted of obstructing a police officer and failing to comply with a recognizance, for which he received a suspended sentence.
(c) Conditions of Incarceration
[19] Because he was awaiting trial on these charges, Mr. Jama served his sentence for the robbery conviction at the Toronto South Detention Centre (“TSDC”). The conditions at that institution are notorious, and were even worse during the COVID-19 pandemic. Records from the TSDC show that between July 20, 2019 and April 11, 2021, he was subject to full or partial lockdowns 292 times. This represents almost half of the time. During lockdowns, Mr. Jama had almost no exposure to sunlight and very limited opportunities to use the telephone to contact his family or his lawyer.
[20] While at the TSDC, Mr. Jama enrolled in a three-year Business Administration Program through Centennial College. He also managed to complete six institutional programs on a variety of topics, including anger management and goal setting. After the beginning of the COVID-19 pandemic, programs were no longer available at the TSDC. Mr. Jama only completed the first semester of the Centennial College Program.
[21] Mr. Jama contracted COVID-19 while at the TSDC, but fortunately recovered.
[22] I am told that Mr. Jama would have been entitled to be released on the robbery sentence as of January 22, 2021. The parties agree that the period between that date and the date of sentence should be considered as presentence custody.
(d) Letters of Support
[23] The court was provided with letters of support for Mr. Jama from his mother, Omar Fardowsa, his brother, Faiza Jama, his cousin, Mohamed Ali Jama, A. Hassan, the director of the Dar Ul Hijra Islamic Centre, Faisal Hassan, the Member of Provincial Parliament for York South-Weston, and Kimberley D’Cunha, the Director of Programs at an organization called Amadeusz, which provides programs at the TSDC. These letters all state that Mr. Jama has expressed a willingness to change his life and that there are supports available to him.
[24] Mr. Jama also wrote a letter to the court expressing remorse and an intention to change his life. I accept that he is being sincere.
(ii) Mr. Farah
(a) Background
[25] Mr. Farah is 22 years old and was 19 when the offences were committed. His parents separated when he was 13 and he was raised primarily by his mother. He had little contact with his father until he was incarcerated on these charges. He grew up in community housing in a racialized neighbourhood with a high crime rate.
[26] When Mr. Farah was in high school, his cousin died as a result of gun violence. This had a profound effect on Mr. Farah. He began to skip school regularly and associate with negative peer influences. He began to self-medicate with marijuana and then opioids and later turned to drug trafficking to help support his habit.
[27] Mr. Farah has renewed his relationship with his father since his incarceration. His father currently lives in Fort McMurray, Alberta, and it is Mr. Farah’s intention to move there when he is released, complete his education, and obtain work with his father. Mr. Farah is of the view that he needs to leave his old neighbourhood and the negative influences there to change his life. The Crown accepts that Mr. Farah has good prospects of rehabilitation.
[28] Mr. Farah has no prior criminal record.
(b) Conditions of Incarceration
[29] Mr. Farah has been in custody on these charges since May 3, 2018. He has been at the TSDC, where he was subject to lockdowns approximately 38% of the time because of staff shortages. During lockdowns, he had limited access to exercise, showers or the telephone.
[30] In addition to this, there were other restrictions on Mr. Farah’s liberty because of the pandemic. On three occasions, Mr. Farah was placed on “droplet protection” for 14 days. During these periods, he was only allowed out of his cell for 30 minutes every other day.
[31] Mr. Farah was concerned about contracting COVID-19 while at the TSDC. He was not permitted to wear a mask, apparently for security reasons. While guards were supposed to wear masks, many did not do so or did so improperly.
[32] In October 2019, Mr. Farah was placed on what was described as an experimental “gang management unit” where inmates who were usually kept separate because of affiliations with rival gangs were housed together. Mr. Farah was threatened by another inmate and was unable to sleep during his time on the unit because of fear that he might be harmed. The Crown initially challenged Mr. Farah’s evidence that any such unit existed, but later accepted his evidence when he produced newspaper articles about it.[^2]
[33] Mr. Farah completed a number of programs at the TSDC for which he received certificates.
(c) Letters of Support
[34] The court was provided with letters of support for Mr. Farah from Abdihamid Farah, his father, who attests that Mr. Farah will have a position as an apprentice scaffolder in Fort McMurray. Letters were also provided from Sumaya Cowke, a teacher and family friend, and Iqra, a friend.
[35] Mr. Farah also wrote a letter to the court expressing remorse and an intention to change. I accept that he is being sincere.
II. ANALYSIS
A. Count 6 -- Discharge Firearm (Mr. Jama and Mr. Farah)
(i) The Applicable Mandatory Minimum Penalty
[36] Mr. Jama and Mr. Farah have both challenged the mandatory minimum penalties in s. 244.2(3) of the Criminal Code, which they submit violates s. 12 of the Charter. Before considering that challenge, I must first determine which mandatory minimum penalty applies. Section 244.2(3)(a)(i) provides that the mandatory minimum for a first offence is five years if a restricted or prohibited firearm is used in the commission of the offence or if the offence involves a criminal organization. Otherwise, the mandatory minimum is four years (s. 244.2(3)(b)).
[37] In this case, I found that a handgun was used in the commission of the offence, but made no other findings with respect to the nature of the firearm. Count 6 in the indictment is particularized to charge that the offence was committed with a restricted weapon. Mr. Jama and Mr. Farah argue that as a result, the Crown must prove that the firearm was restricted. According to them, since a handgun can be either restricted or prohibited and the Crown cannot prove which this was, the charge as particularized cannot be proven and the four-year minimum therefore applies.
[38] I would not give effect to this argument. In my view, the mention of a “restricted firearm” in the indictment was surplusage: R. v. Vézina, [1986] 1 S.C.R. 2, at paras. 49, 54; R. v. Appleyard, 2007 MBCA 65, 214 Man. R. (2d) 245, at para. 25. The Crown needed only to prove that a firearm was used to obtain a conviction. The issue of whether the firearm is restricted or prohibited only arises with respect to classifying the offence for sentencing purposes in s. 244.2(3)(a). For those purposes, it does not matter if the firearm was prohibited or restricted. If it was either, the higher minimum applies.
[39] If I am wrong about this, I would grant the Crown leave to amend the indictment. In my view, no prejudice to the defence would result from such an amendment as it would have had no effect on how the case was defended.
[40] Having determined that it is the five-year minimum which applies, I intend to proceed in the manner outlined in R. v. Delchev, 2014 ONCA 448, at para. 5. That is, I will determine the appropriate sentence without reference to the mandatory minimum and only consider the constitutionality of the mandatory minimum if the appropriate sentence is lower than that minimum.
(ii) The Appropriate Range
[41] This was a serious offence. This was not a sporadic decision to discharge a firearm made in the heat of the moment or in circumstances which had elements of self-defence. Rather, the discharge of the firearm was planned and deliberate. Mr. Farah and Mr. Jama drove to the location where they believed their targets to be. When they did not find them, they departed and then returned later. When they located the targets, the firearm was discharged at least three times. This occurred in a parking lot where there were numerous vehicles, any one of which may have been occupied. The inherent dangerousness of this conduct cannot be overemphasised.
[42] Crimes involving handguns are far too common in the Greater Toronto Area. Handguns have but one purpose: to kill or seriously injure human beings. Because of the prevalence of these types of offences, courts have repeatedly emphasized the need for sentences designed to meet the objectives of general deterrence and denunciation. I am well aware that there are questions about the efficacy of general deterrence. However, that does not change the fact that there is clear appellate direction requiring sentencing courts to impose “exemplary” sentences: R. v. Nur, 2015 SCC 15, 205 SCC 15, [2015] 1 S.C.R. 773, at para. 82; R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52, at para. 8; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 13: Delchev, at para. 20.
[43] Had the defendants simply possessed a loaded handgun, they would have been liable to a sentence in the range of three to four years. Had they used the handgun to threaten another person, the sentence would have been higher. Had they discharged the handgun once in the heat of argument, it would have been even higher. But they did more than that. They discharged it at least three times. This was not a momentary lapse in judgment. It was a planned and deliberate act.
[44] The Crown relies on R. v. Bellissimo, 2009 ONCA 49, at para. 3, where the Court referred to a range of seven to 11 years for “serious gun-related offences.” Bellissimo is a short endorsement and it is unclear what offence the accused had been convicted of, although it is clear that he fired several shots inside a restaurant and injured two people, one significantly. The range in that decision has been applied in discharge firearm cases: R. v. Campbell, 2021 ONSC 4193, at paras. 10-14; R. v. Charley, 2019 ONSC 45, at para. 45. However, it is most often applied in cases involving injuries or attempts to cause injuries, such as cases of aggravated assault or attempted murder: R. v. Johnston, 2021 ONCA 331, at para. 19, aff’g 2020 ONCJ 272, at paras.116-117; R. v. Hanan, 2020 ONSC 1209, at para. 141; R. v. Abdirahim, 2019 ONSC 2617, at para. 31; R. v. Weeden, 2019 ONSC 773, at para. 41; R. v. Reis, 2017 ONSC 1961, at para. 29; R. v. Ali, 2016 ONSC 8190, at para. 4; R. v. Nadon, 2016 ONSC 3518, at para. 33; R. v. Murphy, 2016 ONCJ 67, at para. 15; R. v. Persaud, 2014 ONCJ 322, at para. 16; R. v. Jefferson, 2014 ONCA 434, at para. 14. In my view, the Bellissimo range may be properly applied only to cases of intentional shootings where someone is injured or there was an attempt to injure someone: R. v. Dhaliwal, 2019 ONCA 398; R. v. Haque, 2019 ONCJ 466, at para. 45; R. v. Larmond, 2011 ONSC 7170, at para. 26.
[45] It follows from the foregoing review that the appropriate sentencing range for discharging a restricted or prohibited firearm without causing or attempting to cause an injury to another person is higher than the three-to-four year range for possession of such a firearm and lower than the seven-to-11 year range in Bellissimo. Given the dangerousness inherent in discharging a firearm where others are present, in my view the appropriate range is closer to the Bellissimo range than it is to the possession range. I therefore conclude that the appropriate range for s. 244.2 offences using a restricted or prohibited weapon is five to seven years. I draw this conclusion without considering the mandatory minimum penalty.
(iii) The Sentences in This Case
[46] As noted earlier, the aggravating features in this case are that the offence was planned and multiple shots were fired. With respect to Mr. Jama, the fact that he was on bail at the time is an additional aggravating feature.
[47] While Mr. Jama did not actually fire the gun, he was a party to the offence and is no less culpable.
[48] The mitigating factors in this case are that both defendants are young. Mr. Farah has no prior criminal record. While Mr. Jama has a conviction for robbery, that conviction post-dated this offence, although the commission of the robbery pre-dated it. In these circumstances, the common law rule known as “Lord Coke’s principle” suggests that he should be treated as a first offender. That principle was explained in R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 61:
“Lord Coke's principle” makes sense. A repeat offender who has already been sentenced for offending may require increased punishment to achieve specific deterrence since they have not learned from their earlier sentence. Their degree of responsibility is heightened by the contempt their subsequent conduct may show for the sentencing process: R. v. Cheetham (1980), 53 C.C.C. (2d) 109 (Ont. C.A.), at p. 114. These considerations do not operate where the offender committed the offence being sentenced before being punished for subsequent offences.
[49] The Crown submits that this principle only applies to situations where a penal statute imposes a harsher penalty for subsequent offences. While some courts have taken that view, the issue remains undecided in Ontario: R. v. R.M., 2020 ONCA 231, 150 O.R. (3d) 369, at paras. 6, 34. Until it is, I tend to the view that the principle is not restricted to such situations. In my view, the rationale for the principle explained in Wilson applies equally to all situations where a prior record is being considered. However, as noted in R.M., at para. 35, even where Lord Coke’s principle applies, other convictions may be relevant to an accused’s prospects of rehabilitation.
[50] Despite the robbery conviction, I am of the view that like Mr. Farah, Mr. Jama has good prospects for rehabilitation. Like Mr. Farah, he has expressed a willingness to change and has support in the community that would help him do so.
[51] Another mitigating factor in this case is the harsh conditions both defendants endured at the TSDC. As the Court of Appeal recently clarified in R. v. Marshall, 2021 ONCA 344, at paras. 51-53, what is often referred to as “Duncan credit” (after the decision in R. v. Duncan, 2016 ONCA 754) is conceptually distinct from credit given for presentence custody, or what is referred to as “Summers credit” (after R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575). The former should be taken into account with other mitigating and aggravating factors to determine the appropriate sentence, while the latter should be deducted from the appropriate sentence. While it is open to a sentencing court to specify a number of days or months given as “Duncan credit”, courts must be cautious in doing so in order to prevent skewing the ultimate sentence. For this reason, I do not intend to specify an exact number of days of credit for the conditions at the TSDC.
[52] I recognize that most of Mr. Jama’s time at the TSDC was spent serving the sentence for the robbery conviction. However, had it not been for the outstanding offence he is now being sentenced for, he would have served that time in a penitentiary with more access to programs and, more importantly, without being subject to numerous unjustified lockdowns. In my view, it is appropriate to treat his time at the TSDC as a collateral consequence of the offence he is being sentenced for.
[53] Like many of my colleagues, I have in the past been critical of the government’s intransigence in addressing these issues. Nothing has changed since then, despite courts giving significant credit as a result of the conditions at the institution. I must conclude from this that the state is content to have the poor conditions in the TSDC result in the reduction of sentences. The government would rather have offenders serve shorter sentences than remedy the problem. If that is what the government wants, the court will oblige.
[54] The conditions of incarceration are of course relevant to the sentence Mr. Farah receives for all of his convictions. However, I am considering them in relation to the discharge firearm conviction because the bearing the ultimate sentence on that conviction has on the constitutional issue and the issue of parity with the sentence imposed on Mr. Jama.
[55] Having balanced all of the aggravating and mitigating factors, I am of the view that the appropriate sentence on Count 6 for both Mr. Farah and Mr. Jama is five years. These sentences would have been significantly higher but for the conditions at the TSDC.
[56] Given my conclusion, it is unnecessary for me to consider the constitutional issue and I decline to do so for reasons of judicial economy. In doing so, I should not be taken as expressing any opinion on the constitutionality of the mandatory minimum or whether the range of five to seven years that I have identified might be grossly disproportionate in some cases.
(iv) Presentence Custody for Mr. Jama
[57] As noted, Mr. Jama was entitled to be released from custody with respect to his robbery sentence as of January 22, 2021 and the parties agree that the time since then, approximately five and a half months, should be treated as presentence custody resulting in a credit of eight months and one week. He therefore has four years, three months and three weeks left to serve.
(v) Effect of Mr. Jama’s Robbery Sentence
[58] During submissions, questions arose as to what effect the prior robbery sentence would have on the overall time Mr. Jama must serve. While he was entitled to be released as of January 21, 2021, his warrant expiry date is not until November 23, 2021. In my view, the caselaw is clear that the totality principle applies in these circumstances: R. v. Johnson, 2012 ONCA 339, at para. 19; R. v. Park, 2016 MBCA 107, at paras. 10-11.
[59] Section 718.3(4)(a) of the Criminal Code directs that a sentencing court shall consider directing “that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing.” I have considered so directing but decline to do so to give effect to the principle of totality. For the sake of clarity, this means that the sentence I am imposing today begins today and not on the date on which the robbery sentence expires.
B. Firearm Possession Offences – Counts 8, 9, 21, 22, 23 (Mr. Farah)
[60] Mr. Farah was also convicted in Count 8 of possessing a loaded restricted firearm and in Count 9 of possession of a restricted firearm knowing he had no licence. On Count 8, he will be sentenced to three and a half years imprisonment, to be served concurrently with the sentence on Count 6. Count 9 will be conditionally stayed pursuant to the rule against multiple convictions.
[61] Mr. Farah was also convicted in Count 21 of possessing a firearm with readily accessible ammunition, Count 22 of possessing a restricted firearm knowing he had no licence, and Count 23 of possessing a firearm with an altered serial number. These relate to the STI Trojan handgun seized from Upti’s. The Crown submits that the sentence for these offences should be consecutive to the sentences on Counts 6 and 8.
[62] As indicated in my reasons for judgment, I am not satisfied that the STI Trojan was the handgun that was discharged in the parking lot. But nor am I satisfied that it was not. If it was the same gun, then Count 8 and Count 21 are part of an ongoing possession of a firearm and do not constitute completely separate offences. In all the circumstances, I will give Mr. Farah the benefit of the doubt on this issue and make the sentences concurrent. As a result, Mr. Farah is sentenced to three years on Count 21 and one year consecutive (but concurrent to the other counts) on Count 23. Count 22 is conditionally stayed.
C. Drug Offences – Counts 25-28, 30-31, 39 (Mr. Farah)
[63] The evidence establishes that between March and June 2018, Mr. Farah engaged in street level trafficking of a variety of controlled substances, including oxycodone, heroin, fentanyl, and cocaine. All of these are extremely harmful drugs. Three of them are opiates. Opiate addiction is currently a very significant social problem causing untold harm to many members of our society. Profiting off of the misfortune of those who are addicted to these substances is a very serious crime requiring a high degree of denunciation.
[64] That said, I accept that Mr. Farah himself had an addiction to opiates and that his conduct was, at least in part, to finance his own habit. This is a factor that must be taken into account: R. v. Acorn, 2010 ONCJ 142, at paras. 12-13.
[65] The most harmful of the drugs in this case is fentanyl. The Ontario Court of Appeal has declined to establish a sentencing range for fentanyl trafficking offences, but has held that first offenders who traffic “significant amounts” of fentanyl “should expect to receive significant penitentiary sentences”: R. v. Loor, 2017 ONCA 696, at para. 50. In this case, the Crown seeks a sentence of three years on the possession of fentanyl for the purpose of trafficking count, which I view as reasonable.
[66] While not as harmful as fentanyl, heroin is also a very harmful drug. In my view, the appropriate sentence for possession of heroin for the purpose of trafficking is also three years.
[67] With respect to all the cocaine trafficking offences, the appropriate sentence is two years. The sentence for the oxycodone offences is 18 months.
[68] In my view, all of the sentences should be concurrent as they all arise out of Mr. Farah’s ongoing activities as a street level trafficker.
[69] Added to the previous sentence, this would result in a total sentence of eight years. However, I must also have regard for the principle of totality so as not to deprive Mr. Farah of any hope of release or rehabilitation: Johnson, at paras. 15-19. I accordingly reduce the total sentence for the drug offences to 22 and a half months, leaving a total sentence of six years and 10 and a half months. The reason for this unusual number will become apparent once credit is given for presentence custody.
[70] I recognize that this is a significant reduction to give effect to the principle of totality. In granting it, I am mindful of the overrepresentation of young black men in Canadian prisons. Many of these young men are there because of charges such as those faced by Mr. Farah. While sentencing in relation to such charges must give effect to the objectives of deterrence and denunciation, giving effect to those objectives without due regard to the need for rehabilitation exacerbates the problem of overrepresentation.
D. Presentence Custody (Mr. Farah)
[71] Mr. Farah has spent 1161 days, or approximately 39 months, in presentence custody. He is therefore entitled to a credit of 58.5 months, or four years and 10 and a half months of credit. The sentence left to be served is therefore two years, from which I will deduct one day in order to keep Mr. Farah in the reformatory.
[72] As can be seen, I have arrived at this figure by attempting to properly balance all of the relevant sentencing objectives, including Mr. Farah’s rehabilitation. The final sentence does not exceed two years, which allows the court to use an additional rehabilitative tool in the form of a probation order. In order to assist in Mr. Farah’s rehabilitation, he will be placed on probation for a period of 12 months. He is to report to a probation officer forthwith upon release and thereafter as directed. He is not to possess any weapons as defined by the Criminal Code or any non- medically prescribed drugs and he is to seek and maintain gainful employment or attend school. This probation order may be transferred to Alberta.
E. Ancillary Orders (Mr. Jama and Mr. Farah)
[73] Both Mr. Jama and Mr. Farah are to be subject to orders made pursuant to s. 109(2) of the Criminal Code for a period of 10 years.
[74] Mr. Farah is ordered pursuant to s. 487.051(3)(b) of the Criminal Code to provide a sample of his DNA for inclusion in the national databank.
III. DISPOSITION
A. Mr. Jama
[75] Mr. Jama is sentenced to five years imprisonment on Count 6. He is entitled to credit of eight months and one week for five and a half months spent in presentence custody. The remaining sentence is therefore four years, three months and three weeks. The sentence begins to run on July 8, 2021.
[76] Pursuant to s. 109(2), Mr. Jama is prohibited from possessing firearms and other items described in s. 109(2)(a) for a period of 10 years, and the items described in s. 109(2)(b) for life.
B. Mr. Farah
[77] Mr. Farah is sentenced as follows:
Count 6: 5 years
Count 8: 3.5 years (concurrent)
Count 9: stayed
Count 21: 3 years (concurrent)
Count 22: stayed
Count 23: 1 year (consecutive to Count 3 but concurrent to the other counts)
Count 25: 18 months (consecutive)
Count 26: 22.5 months (concurrent to Count 25 but consecutive to Counts 6, 8, 9, 21 and 23)
Count 27: 22.5 months (concurrent)
Count 28: 22.5 months (concurrent)
Count 30: 2 years (concurrent)
Count 31: 18 months (concurrent)
Count 39: 2 years (concurrent).
Mr. Farah is to be given credit of 58.5 months for 39 months spent in presentence custody. The sentence left to be served is two years less one day.
[78] Mr. Farah is also placed on probation for a period of 12 months on the following conditions:
(1) report to a probation officer forthwith upon release and thereafter as directed.
(2) not to possess any weapons as defined by the Criminal Code.
(3) not to possess any non-medically prescribed drugs.
(4) seek and maintain gainful employment or attend school.
[79] Pursuant to s. 109(2) of the Criminal Code, Mr. Farah is prohibited from possessing firearms and other items described in s. 109(2)(a) for a period of 10 years, and the items described in s. 109(2)(b) for life.
[80] Pursuant to s. 487.051(3)(b) of the Criminal Code, Mr. Farah is ordered to provide a sample of his DNA for inclusion in the national databank.
Justice P.A. Schreck
Released: July 8, 2021
COURT FILE NO.: CR-19-10000598-0000
DATE: 20210708
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KHALID JAMA and JABRIL FARAH
REASONS FOR SENTENCE
P.A. Schreck J.
Released: July 8, 2021.
[^1]: An abbreviated version of these reasons was delivered orally in court on July 8, 2021. In the event of any conflict between the oral reasons and these written reasons, the written reasons shall be taken as correct.
[^2]: “`It’s the worst thing I’ve ever seen in my 16-year career’”: Human rights complaints detail racism, toxic culture at Toronto South jail,” Toronto Star, February 28, 2021; “NDP critic slams ‘rampant’ racism in Ontario justice system in wake of Star report on Toronto South Detention Centre,” Toronto Star, March 1, 2021.