R. v. Banouri, 2021 ONSC 6043

COURT FILE NO.: CR-21-30000058-0000

DATE: 20210824

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ABDULRAHMAN Banouri

Defendant

Adriana Moser, for the Crown

Justin Yuen, for the Defendant

HEARD at Toronto: July 9 and August 24, 2021

Low J. (Orally)

1On April 7, 2021, the defendant pleaded guilty to counts 1, 7 and 10 of the indictment.

2Count 1 alleges that on February 7, 2020, the defendant uttered a death threat to one Michael Francis contrary to s. 264.1(1)(a) of the Canadian Criminal Code, R.S.C., 1985, c. C-46 (“CCC”).

3Count 7 alleges that on February 7, 2020, the defendant possessed a prohibited device, a 15 round magazine, without a licence to do so, contrary to s. 92(2)

4Count 10 alleges that on February 7, 2020, the defendant possessed a loaded restricted firearm, a Glock 19, without a licence to do so, contrary to s. 95(1)(a) of the CCC.

[5]

Background and Facts

The facts, which defendant has accepted as correct, are as follows:.

The complainant, Michael Francis, got off the 113 bus at the Transway Crescent bus stop east of Kennedy Road at approximately 15:50 hours. The complainant walked back to Kennedy Road and was crossing northbound across Transway Crescent on the east side of Kennedy. A motor vehicle travelling westbound on Transway Crescent toward Kennedy, drove through the crosswalk almost hitting the complainant. The driver of the motor vehicle stopped in the crosswalk at which time the complainant and driver got into a verbal altercation over who had the right of way.

During this altercation, the defendant, the driver of the motor vehicle, reached between his legs and pulled out what appeared to be a metallic silver handgun. The defendant then "cocked" the gun and held the gun against his own chest with the barrel pointed on an angle toward the ground. The defendant said to the complainant "you don't know who you're dealing with." The complainant said "are you going to shoot me in front of all these people? I have your licence plate." The defendant then pulled northbound onto Kennedy Road and pulled into the middle lane. As the motor vehicle pulled away, the complainant took a picture of the back of it capturing the licence plate and the make and model of the SUV.

On February 8, 2020, uniformed police officers located the rental vehicle parked on Eaglestone Road, near 236 Bay Mills Boulevard in the morning. Plainclothes and uniformed officers set up in the area and conducted observations of the motor vehicle. At approximately 4:00 PM, the defendant returned to the motor vehicle and got into the driver's seat. The police officers arrested the defendant without incident. Upon search of the defendant, a loaded black and silver Glock handgun was located in his left inner jacket pocket with a 17 round magazine in the firearm (the chamber was empty). A loaded 15 round magazine was located in his right jacket pocket.

The Defendant

6The defendant is now 27 years old and is one of 7 children of immigrants from Afghanistan. He was born in Canada and educated here although he did not finish high school.

7Mr. Banouri has a criminal record starting from when he was a youth. He has acquired a significant number of convictions. He has never been sentenced to penitentiary, however, and the majority of his convictions have resulted in very brief periods of incarceration.

8Predating the events leading to the convictions on the indictment before the court however, the defendant was charged by Saskatoon Police with trafficking in a controlled substance (cocaine), possession for the purpose of trafficking (cocaine), possession of proceeds over $5,000, possession of a prohibited device (9 mm high capacity magazine), and possession of a prohibited device (altered 9 mm high capacity magazine).

9The accused was released by a Judge of the Provincial Court on a recognizance of bail on December 19, 2019, with a number of conditions including the following:

• Live at 117 McGee Crescent, Saskatoon, SK or live at a residence approved by the probation officer and not change that residence without the prior [written] permission of the probation officer or designate or the court

• Not possess any weapons as defined by the Criminal Code

10On January 12, 2020 Saskatoon Police conducted a bail compliance check on the above address. It was discovered that the accused was not residing there and had left the province. A warrant was sought for breach of recognizance.

Joint Submission on Sentence

11Crown and Defence have made a joint submission in support of a global sentence of three years. I am satisfied that a three year sentence is a fit and proper sentence in respect of each of the firearms offences. The range for such offences is 2 to 3 years in the absence of other accompanying offences. Here, the firearms offences are aggravated in that the firearm was used to intimidate a member of the public and in the context of making a death threat. Further, all three offences occurred in the context of breach of conditions imposed on a recognizance of bail in Saskatchewan.

12In my view, the death threat, made with the use of a weapon, in the context of road rage on the part of a motorist against a pedestrian, properly attracts a three year sentence in itself.

13I will accede to the joint submission for a gross global sentence of 3 years, which I would characterize as three years on each count to be served concurrently. Given the totality of circumstances of the offence and the offender, I am of the view that three years global is at the bottom end of the appropriate range.

Pre-Trial Custody Credit

14There is no agreement, however, as to the quantum of credit that should be accorded to Mr. Banouri for pre-trial custody and for strict terms of bail once the defendant obtained interim release.

15Mr. Banouri spent 68 days in pre-trial custody. He was released on April 15, 2020.

16Under Regina v. Summers, Mr. Banouri is to be credited with 1.5 times 68 days on account of pre-trial custody. This amounts to 102 days.

17On behalf of Mr. Banouri, it is argued that he should be accorded credit of an additional 1 day for every day between March 14 and April 15, 2020 because of the added stress of being in custody during the COVID pandemic (33 days) and an additional 1 day for every day during which Mr. Banouri says there was a lockdown at the detention centre (an additional 32 days of which 24 were in March and April).

18Sgt. McGarrell of the Toronto East Detention Centre security records 7 days of partial lockdown of 3 hours during the time Mr. Banouri was in pretrial custody and no days of all day lockdown. Mr. Banouri states that the gaol records are not accurate and that he kept his own records. He deposes in his affidavit that there were 32 days of lockdown. He does not distinguish among lockdowns for differing lengths of time. The writings that constitute his records were not adduced in evidence.

19There was no cross-examination on the issue and accordingly the court is hard put to make a definitive determination whether the gaol’s records or Mr. Banouri’s statement is more reliable. As the goal routinely keeps these records in the ordinary course of its operations, however, and as Mr. Banour has an interest in maximizing the number of days engaged in consideration of a credit under Duncan (now under Marshall), I am inclined to believe the gaol’s records more likely to be accurate.

20Thus the result of the defence position is that for those days that fell within the pandemic period, that is March 14 and April 15, 2020, a lockdown of any duration would result in credit being given for the day at the rate of 3.5 to 1—the accumulation of 1.5 to 1 under Summers and 1 day because of the pandemic and an additional 1 day for 1 on account of lockdown..

21The Crown position is that of the days from arrest to March 14, (35 days), credit should be given at the rate of 1.5 to 1 under Summers, and for the 33 days from March 14 to April 15, credit should be given effectively at the rate of 2:1 in consideration of the harsh conditions of custody. The effect under Marshall, would be a mitigative factor of 33 half days or 17 days.

22I am satisfied that the gaol conditions during the 33 days of custody under pandemic conditions was harsher than the norm and that using a factor of half a day per day under those conditions as a mitigative factor does not do violence to the fitness of the global sentence of 3 years.

23I am not on balance persuaded that the numbers of days of lockdown were as alleged by Mr. Banouri. Nor am I persuaded that days of lockdown should attract a credit of an additional day per day of lockdown regardless of the duration of the lockdown. There is no principle of arithmetic equivalency in taking the consequences of lockdown into consideration when granting pretrial custody credit.

24Acknowledging that there were at least 7 days when there were lockdowns of 3 hours, and that the conditions of detention were harsher under pandemic conditions, I would mitigate the global sentence by 21 days.

Credit for Bail Conditions

25It is also argued that under Regina v. Downes, Mr. Banouri should be credited under R. v. Downes with one day for every four days that he passed while on strict bail terms following his release on April 15, 2020, a total of 112 days for the 450 days which have passed since he was granted interim release.

26The evidence as to impact on his ability to work is both vague and unconvincing as there are no particulars and no evidence that he was employed prior to arrest. I put no weight on the allegation that bail terms prevented or impeded his ability to work. In any case, had employment been a genuine prospect, Mr. Banouri was at liberty to apply for a bail variation to permit his employment.

27That the period of strict bail terms coincides with pandemic related restrictions on the population of the whole province diminishes, to a substantial degree, the effect of the bail terms on Mr. Banouri. That said, there is a significant difference between being kept on a short leash by conscience and provincial order of general application and being subject to bail conditions which, if breached, could result in a criminal conviction. Crown counsel has drawn my attention to the decision of the court of appeal in R. v. Panday, 87 O.R. (3d) but as no mandatory minimum sentence is engaged here, I am not persuaded that I have no power to allocate some credit against sentence in respect of the strict terms of bail imposed on Mr. Banouri.

28In my view, in light of the fact that Mr. Banouri would, as a citizen of this country and a resident of this province and municipality, have had his freedoms and abilities to associate with others significantly curtailed by pandemic related provincial order, a reasonable credit would be 1 day for 7, or 64 days, rounding down to the nearest integer.

Net Sentence

29The gross global sentence is 2 years 11 months 10 days. (net sentence applying Marshall)

30There will be a credit under Summers for 102 days against sentence and under Downes an additional 64 days, or a total of 166 days.

31The net sentence to be served will therefore be 2 years 178 days

Ancillary Orders

32The Crown and defence are ad idem and make a joint submission that there should be the following ancillary orders which are hereby made:

• A lifetime weapons prohibition under s. 109 of the Criminal Code.

• An order for harvest of DNA

• A forfeiture order in respect of the firearm and device.

___________________________ Low J.