COURT FILE NO.: CR-20-10000309-0000
DATE: 20211210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ABDULRAHMAN AHMED
S. Husband, for the Crown
G. Haskell, for Mr. Ahmed
HEARD: November 30, 2021
REASONS FOR SENTENCE[^1]
SCHRECK J.:
[1] One evening in May 2020, Abdulrahman Ahmed approached a man he did not know on a street in Toronto and without any provocation, punched him in the face. A short while later, he did the same thing again to another man who was also a stranger to him. When the police arrived, Mr. Ahmed attempted to flee. The police caught up with him and a struggle ensued during which Mr. Ahmed dropped a loaded handgun that had been somewhere on his person. At the time, Mr. Ahmed was bound by three court orders prohibiting him from possessing firearms.
[2] Following a jury trial, Mr. Ahmed was convicted of two counts of assault (Counts 1 and 2), carrying a concealed weapon (Count 3), possessing a weapon for a purpose dangerous to the public peace (Count 6), possession of a loaded prohibited firearm without authorization (Count 10), possessing a firearm with a defaced serial number (Count 11), and three counts of possessing a firearm while prohibited from doing so (Counts 12, 13 and 14).[^2]
[3] Mr. Ahmed is 40 years old. While he has a fairly substantial criminal record, his last conviction was in 2013. He has been in custody since his arrest in May 2020 and was subjected to lockdowns on more than half of the days he has spent there.
[4] The Crown submits that a sentence of imprisonment of seven to eight years is appropriate. Counsel for Mr. Ahmed submits that two to three years is appropriate. Both counsel agree that Mr. Ahmed should receive the usual credit for time spent in presentence custody and both agree that he is entitled to some credit because of the conditions in which he was incarcerated, although they disagree as to the amount.
[5] For the reasons that follow, Mr. Ahmed is sentenced to a total of three years and four months. This sentence was arrived at following a consideration of all the relevant aggravating and mitigating factors, including the numerous unjustified lockdowns Mr. Ahmed was subjected to while in custody. Mr. Ahmed is entitled to a credit of 28 months for time spend in presentence custody, leaving the sentence that remains to be served at 12 months. In addition to this, Mr. Ahmed will be placed on probation for 12 months.
I. FACTS
A. The Offences
(i) The Assaults
[6] On the evening of May 23, 2020, Emanuel Chasi was standing on the street talking to some friends when Mr. Ahmed, whom he did not know, walked by and called him and his friends a “bunch of fucking faggots.” Mr. Ahmed then bumped into one of Mr. Chasi’s friends, after which he came up to Mr. Chasi and asked him if he had something to say. He then “sucker-punched” Mr. Chasi on the cheek, after which he left the area.
[7] Some time later that evening, Ervin Kink was leaving his apartment building when he was approached by Mr. Ahmed, whom he had never met before. Without provocation, Mr. Ahmed punched him in the face. Following a brief exchange of words between them, Mr. Ahmed ran away. The assault was witnessed by a security guard in the building and by Mr. Chasi.
[8] A short while later, Mr. Ahmed returned to the area. Mr. Kink confronted him, but the security guard intervened and advised Mr. Kink to back away. Mr. Ahmed then left the scene while the security guard called 911.
(ii) Firearm Possession Offences
[9] Two police officers arrived on scene. They, Mr. Chasi, Mr. Kink and the security guard walked around looking for Mr. Ahmed and located him a short distance away. Mr. Ahmed tried to run away, but the police officers caught up to him and took him to the ground. Immediately after Mr. Ahmed was subdued, the police and the other witnesses noticed a handgun on the ground. The jury was clearly satisfied that the handgun had been on Mr. Ahmed’s person. It was later discovered that the handgun was loaded and had a round in the chamber. Mr. Ahmed was not authorized to possess it and was in fact subject to three separate prohibition orders at the time.
B. The Offender
(i) Criminal Record
[10] Mr. Ahmed has a criminal record with several convictions for serious offences. He was first convicted of aggravated assault, possession of a weapon, dangerous operation of a motor vehicle and possession of property obtained by crime in 2002, for which he was sentenced to imprisonment for four months. In 2003, he was convicted of possessing a prohibited or restricted firearm with ammunition and threatening, as well as failing to comply with various court orders, for which he received a total of 16 months. He obtained further convictions in 2004, 2005, 2007 and 2008 for numerous offences, including drug trafficking offences, break and enter and several offences against the administration of justice. All these convictions resulted in short reformatory or non-custodial sentences.
[11] After a break and enter conviction in 2008 for which he received 30 days in addition to 17 days of presentence custody, Mr. Ahmed was not convicted again until 2013, when he was found guilty of impaired driving, failing to provide a breath sample and obstructing a police officer, for which he received 60 days and a $1000 fine. This was his last conviction until the charges now before the court.
[12] The 16-month sentence in 2003 is the longest sentence Mr. Ahmed has received.
(ii) Personal History
[13] While a presentence report (“PSR”) was ordered, Mr. Ahmed declined to speak to the author of the report because he was concerned that doing so would harm his ability to appeal his convictions. However, the PSR did contain some biographical information from probation files.
[14] At the sentencing hearing, Mr. Ahmed changed his mind and asked for permission to provide the court with more information about himself. The Crown did not object or take issue with the accuracy of anything Mr. Ahmed said. Based on the information in the PSR and what Mr. Ahmed told me during the hearing, I was able to get some sense of his personal history.
[15] Mr. Ahmed is 40 years old. He was born in Somalia and is the oldest of six children. His family left Somalia because of the civil war when Mr. Ahmed was very young and lived for a time in Yemen. In 1989, Mr. Ahmed, his siblings and his mother came to Canada as refugees while his father remained in Yemen, where he worked to support the family. Mr. Ahmed’s father joined the rest of the family in Canada in 1995. Although Mr. Ahmed’s father is well-educated, he was unable to find any work beyond menial labour in Canada. As a result, he went to the United States, where he obtained work as a truck driver which allowed him to continue to support the family.
[16] After coming to Canada, Mr. Ahmed lived in Ottawa in what is described in the PSR as an “impoverished community.” Mr. Ahmed was the victim of bullying in school, which led him to develop negative coping skills. He lived for a time with his father in the United States, but then returned to Canada. He began to associate with a negative peer group and engage in criminal activity, which is reflected in his criminal record. Because of this record, he was unable to return to the United States to live with his father.
[17] Mr. Ahmed advised me that in the late 2000s, he decided that in order to change his life, he had to leave Ottawa and the negative influences there, so he moved to Québec. As noted earlier, apart from the 2013 convictions, Mr. Ahmed’s record stops in 2008.
[18] After leaving Ottawa, Mr. Ahmed worked in a variety of jobs, mostly in the restaurant business. He was laid off about six months before his arrest because of the pandemic and collected employment insurance.
[19] Mr. Ahmed remains close to his family. All his siblings are university educated and live in various places across Canada.
[20] Mr. Ahmed advised me that he rarely consumes alcohol, but when he does, he is unable to stop and drinks to excess. It was during such a binge that he committed the offences resulting in the 2013 convictions. Mr. Ahmed advised me that he was on a similar binge when he committed the assaults on Mr. Chasi and Mr. Kink.
II. ANALYSIS
A. General Sentencing Principles
[21] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently observed in R. v. Morris, 2021 ONCA 680, at para. 58:
Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.
[22] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.
B. Gravity of the Offences
[23] The gravity of an offence is a function of the type of offence and the circumstances in which it was committed. Assessing the gravity of the offence will require a consideration of a number of factors, including the blameworthiness of the requisite mens rea, the normative wrongfulness of the conduct, the harmfulness of the conduct and the penalties set out in the Criminal Code: Morris, at paras. 67-68; Friesen, at paras. 75-76. As a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases: Morris, at para. 69. However, this does not mean that other objectives such as rehabilitation should become unimportant or should be ignored.
[24] The gravity of the offences committed by Mr. Ahmed is significant for the reasons explained in Morris, at para. 68:
Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees …. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA) 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 82, 206; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214–15.
[25] I would add that the gravity of the offence in this case is increased by Mr. Ahmed’s unprovoked assaults on Mr. Chasi and Mr. Kink. It is not difficult to imagine how conduct such as this could lead to a situation which quickly escalates to the point that a readily accessible and loaded firearm is used. Quite apart from the assaults, the mere fact that the firearm was possessed in public increases the gravity of the offence: R. v. Wright, 2018 ONSC 4209, at para. 39; R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 15; R. v. Brown, 2013 ONSC 4230, at para. 51; R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.), at para. 25.
C. Degree of Responsibility of the Offender
[26] The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness in the context of the offender’s background, life experiences and personal characteristics: Morris, at para. 88; Friesen, at para. 91.
[27] Mr. Ahmed is from Somalia and is a Black Canadian. Both counsel made extensive submissions about the impact of the recent decision in Morris on the sentencing in this case. Counsel for Mr. Ahmed submits that the fact that Mr. Ahmed is a Black Canadian is of great significance to his degree of responsibility. Crown counsel takes a different view. While he accepts that Mr. Ahmed has experienced anti-Black racism, he submits that the record in this case does not establish a sufficient connection between those experiences and any circumstances said to mitigate Mr. Ahmed’s criminal conduct: Morris, at para. 97. According to the Crown, this case is distinguishable from Morris, where there was evidence that the accused carried a firearm because of his fear of people around him, including the police, and that fear was partly the result of systemic racism.
[28] I agree that the type of causal connection described in Morris has not been established in this case. However, no such causal connection is required in order to make the consideration of systemic racism relevant to an offender’s degree of responsibility: Morris, at para. 96. An offender’s background is always a relevant factor on sentencing: Morris, at para. 94. In this case, Mr. Ahmed had a disadvantaged background. He was born in a war-torn country, came to Canada as a refugee, grew up in poverty, was bullied in school, and did not complete his education. Many of these types of disadvantage can be directly linked to systemic anti-Black racism, as was described in a report filed in Morris entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario.”[^3] Although no such report was filed in this case, the Court in Morris observed at para. 42 that much of its contents are properly the subject of judicial notice. In fact, the Court stated it “bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders”: Morris, at para. 43.
[29] All of that said, it cannot be forgotten that Mr. Ahmed made the decision to arm himself with a deadly weapon. The Crown did not challenge Mr. Ahmed’s assertion that he was intoxicated at the time of the offence and I accept that he was. This may explain, but certainly does not excuse, his decision to commit unprovoked assaults on two people. However, it is unlikely that his intoxication played a role in his decision to procure an illegal loaded handgun.
D. Social Context and the Gap Principle
[30] In Morris, at para. 102, the Court stated:
Social context evidence can also be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. As indicated earlier, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.
In my view, the social context evidence respecting Mr. Ahmed’s background is relevant in this way.
[31] In this case, the Crown seeks a lengthy penitentiary sentence primarily because of Mr. Ahmed’s prior criminal record, which includes a prior conviction for a similar firearm possession offence. A prior record ordinarily results in a lengthier sentence, not because the offender is being punished again for the earlier offences, but because the record suggests that he or she has diminished prospects for rehabilitation: R. v. Hicks, 2007 NLCA 41, 268 Nfld.& P.E.I.R. 125, at paras. 14. In this case, however, the prior record appears to be directly related to Mr. Ahmed’s association with negative peer influences while residing in an impoverished area, both factors commonly seen in sentencing cases involving Black Canadian men. Once Mr. Ahmed left this environment, he stopped amassing convictions with the same frequency. This suggests that the prior record does not necessarily mean that there are diminished prospects for rehabilitation. Rather, it suggests that Mr. Ahmed’s behaviour is affected by a negative environment that can be linked to systemic factors.
[32] The same principles animate what is sometimes referred to as the “gap principle”, which was recently described in R. v. Milani, 2021 ONCA 567, at para. 68:
The trial judge’s treatment of this issue also ignores another principle of sentencing; the “gap” principle. The gap principle is said to be “a foundational consideration in sentencing. Where the principle is relevant, it is [an] error for the sentencing court to fail to apply it”: R. v. Singh, 2012 ONSC 30, 286 C.C.C. (3d) 204, at para. 182. In that case, Hill J. helpfully set out the rationales behind the principle:
a gap in an offender’s criminal record is relevant to future risk and to rehabilitative potential;
a person who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation;
if someone with a criminal record has not had any convictions for several years, they are to be treated if not as a first offender, then almost as a first offender; and,
ordinarily, the gap should reflect a sufficient passage of time to be relevant.
[33] In this case, it has been eight years since Mr. Ahmed’s last conviction, which occurred after a previous gap of five years. I accept Mr. Ahmed’s assertion that the consumption of alcohol played a role in both the 2013 offences as well as the assault offences now before the court. When the entire context is considered, it suggests that Mr. Ahmed is an individual who is capable of being a law-abiding member of society provided that he makes efforts to remove himself from certain influences.
[34] Based on the foregoing, I have concluded that Mr. Ahmed’s personal history, including the social context in which it unfolded, provides a basis upon which to give “added weight to the objective of rehabilitation and less weight to the objective of specific deterrence”: Morris, at para. 81.
E. Custodial Conditions
(i) Facts
[35] Records from the Toronto South Detention Centre (“TSDC”), where Mr. Ahmed was incarcerated pending his trial, indicate that Mr. Ahmed was subjected to lockdowns on 279 occasions between May 24, 2020 and November 22, 2021. According to the records, the reason for the lockdown was described as “maintenance” on two occasions, “investigation” on one occasion, and for unspecified reasons or for reasons that have been redacted from the records on four occasions. The reason for all the remaining lockdowns was “staff shortage.” I am advised that there have been further lockdowns since the records were compiled such that the total number is now around 290.
[36] During the sentencing hearing, Mr. Ahmed described his experience while incarcerated at the Toronto South Detention Centre. He explained that during lockdowns, inmates were supposed to be given access to telephones and showers for 30 minutes on a regular basis, but this often did not happen. When it did, there was rarely enough time for all the inmates on the range to have access to the four telephones and two showers available to them. When they did get access to a telephone, they would have to choose between calling their lawyers or family members as there was not enough time to do both. Some inmates would purposely misconduct themselves in order to be placed in segregation because it was no worse than being locked down and there is better access to telephones.
[37] The “yard” that the inmates were sometimes given access to for fresh air is a walled room with a window that opens to the outdoors but which is too high for the inmates to see out of. While the TSDC has a room with exercise equipment and a library, access to both has been suspended during the pandemic.
[38] I note that on March 30, 2020, the Ontario Human Rights Commission (“OHRC”) released its “Report on conditions of confinement at Toronto South Detention Centre,” where it made the following findings:
According to the data received by the OHRC, TSDC management and front-line staff routinely use segregation, restrictive confinement, lockdowns and “time in cell” sanctions to manage the prison population, which raises serious human rights concerns.
First, given the high proportion of Indigenous and Black prisoners at TSDC, and the high prevalence of mental health disabilities and addictions among the provincial remand population, the OHRC is concerned that groups protected the Code are disproportionately negatively impacted by TSDC’s routine use of lockdowns, segregation, restrictive confinement and “sanctions.”
Second, the OHRC is concerned that segregation, which is currently subject to strict limits and oversight, is being replaced by correctional practices that result in substantially similar conditions of confinement without associated legal and policy protections. These practices include lockdowns, restrictive confinement and imposition of “time in cell” as a sanction. This is highly problematic because there is no evidence to suggest that the serious harms associated with solitary confinement are mitigated based on how the placement is labelled, classified or justified.
Third, extensive use of lockdowns, segregation and restrictive confinement, as well as the imposition of arbitrary sanctions that result in significant deprivations of liberty, raise serious human rights concerns under the Charter of Rights and Freedoms. These could have an impact on a range of protections including the right to liberty and security of the person (s. 7), the right to be free from arbitrary detention or imprisonment (s. 9), the right not to be subjected to cruel and unusual treatment or punishment (s. 12) and the right to equality (s. 15).
SOLGEN has been aware of the human rights issues associated with its over-reliance on segregation, restrictive confinement and lockdowns for many years. The OHRC has raised these concerns in litigation before courts and tribunals, as well as in letters highlighting findings from tours of other Ontario correctional institutions. These concerns have also been noted by Ontario’s previous Independent Reviewer of Ontario Corrections, the Ombudsman, the Auditor General, Courts and tribunals, and by the media. The OHRC and many others have made several recommendations over the years to help SOLGEN address these human rights concerns, but progress has been negligible.^4
(ii) How Custodial Conditions are to be Considered
[39] Crown counsel correctly points out that although some of the conditions of Mr. Ahmed’s presentence custody engage concerns about his Charter rights, there has been no Charter application and it is not open to this court to exercise its broad remedial powers under s. 24(1) of the Charter. As a result, I am only considering the conditions of Mr. Ahmed’s presentence custody as a factor to be considered in arriving at an appropriate sentence in accordance with R. v. Duncan, 2016 ONCA 754 and the cases that followed it. I express no opinion on whether any of the conditions at the TSDC violate the Charter and, if so, what remedy is appropriate. That said, it is well established that “a sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach”: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 53.
[40] The conditions at the TSDC have been the subject of frequent judicial criticism. I reviewed a number decisions on this issue in R. v. Persad, 2020 ONSC 188, at paras. 28-34. Since then, courts have continued to condemn the deplorable conditions at the TSDC: R. v. Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at paras. 30-31; R. v. Brown, 2020 ONCA 196, at para.12; R. v. Lee, 2021 ONSC 7672, at para. 51; R. v. Baldwin, 2021 ONSC 7025, at para. 65; R. v. Bernard, 2021 ONSC 5817, at paras. 27-28; R. v. Fronczak, 2021 ONSC 219, at para. 56; R. v. McLaughlin, 2020 ONCJ 566, at para. 37; R. v. Studd, 2020 ONSC 2810, at para. 34; R. v. Behm, 2020 ONCJ 133, at para. 40; R. v. McLean, 2020 ONSC 633, at para. 26-27. And yet, nothing seems to change. In my view, the Ministry of the Solicitor General’s refusal to ameliorate the conditions at the TSDC in the face of a mountain of judicial criticism and the findings of the OHRC is an affront to the administration of justice.
[41] As the Ontario Court of Appeal recently explained in R. v. Marshall, 2021 ONCA 344, at paras. 51-52, a “Duncan” credit is conceptually different than the usual credit given for presentence custody, which is often referred to as a “Summers” credit after the decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. The latter is a deduction for the amount of the sentence the offender has already effectively served while the former is a mitigating factor to be taken into account together with all other mitigating and aggravating factors. In this sense, a “Duncan” credit is treated like any other collateral consequence. It is relevant to the offender’s personal circumstances and must be taken into account to ensure proportionality, but cannot be used to reduce a sentence to the point that it becomes disproportionate: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 48, 56.
(iii) Quantifying “Duncan” Credit
[42] Prior to Marshall, courts usually specified a specific amount of time when giving a “Duncan” credit. More recently, some courts have read Marshall to mean that this practice should be discontinued: R. v. Lee, 2021 ONSC 7672, at para. 36; R. v. Suppiah, 2021 ONSC 3871, at para. 26. However, in Marshall, at para. 53, Doherty J.A. explained that quantifying the amount of “Duncan” credit is “not necessarily inappropriate” provided that doing so does not “skew the calculation of the ultimate sentence” and provided that the “Duncan” credit is treated as but one of several factors. Unlike with most mitigating factors such as youth or remorse, the mitigating effect of harsh presentence conditions can be easily quantified as it is directly related to the amount of time the offender has spent subject to such conditions. Quantifying the amount of “Duncan” credit promotes transparency in the sentencing process and also allows the state to know what effect its failure to maintain appropriate custodial conditions has on a sentence. However, in light of Marshall, there is no need for a court to adopt any specific formula.
[43] In this case, both counsel agree that the amount of “Duncan” credit can be quantified but disagree on the actual quantity. The Crown submits that Mr. Ahmed should be given a credit of one day for each day in lockdown while counsel for Mr. Ahmed submits that it should be two days. In my view, the appropriate amount is somewhere in between, but in keeping with Marshall I will consider the issue when I consider the appropriate sentence in light of all the aggravating and mitigating factors and the relevant sentencing objectives.
F. The Appropriate Sentences
(i) Count 10 – Possession of Loaded Restricted Firearm
[44] The following portion of the judgment in Morris applies equally to Mr. Ahmed (at paras. 151):
Section 95 criminalizes a broad range of conduct. Mr. Morris’s actions fall at the “true crime” end of the spectrum of the conduct prohibited by s. 95. As this court and, more importantly, the Supreme Court of Canada have indicated, crimes like those committed by Mr. Morris call for denunciatory sentences. In most cases, penitentiary terms will be required. In some situations, where there are strong mitigating factors, sentences at or near the maximum reformatory sentence (two years, less a day), may be imposed: see Smickle 2013 ONCA 678, 304 C.C.C. (3d) 371, additional reasons at 2014 ONCA 49, 214 ONCA 49, 306 C.C.C. (3d) 351, at para. 30; Nur (ONCA), at paras. 6, 17-23 and 206; and Nur (SCC) 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82.
[45] Mr. Ahmed’s conduct requires a sentence with a significant denunciatory and deterrent effect. However, in my view, a sentence in the range of seven to eight years as requested by the Crown fails to adequately reflect Mr. Ahmed’s rehabilitative potential. While he has a prior conviction for a similar offence, it was 18 years ago and most of his criminal record is dated. At the same time, the two-to-three-year sentence suggested by counsel for Mr. Ahmed fails to adequately reflect the gravity of the offence. As well, while Mr. Ahmed has a gap in his record, he is not a first offender.
[46] Having considered the gravity of the offence and the degree of responsibility of the offender and having balanced and blended the relevant sentencing objectives of general and specific deterrence, denunciation and rehabilitation, I have concluded that the appropriate sentence on Count 10, possessing a loaded firearm without authorization, is imprisonment for two years and nine months. In coming to this conclusion, I am guided by the principle of restraint and, as directed by the Court in Morris, I have considered the well-established over-incarceration of Black offenders: Morris, at para. 123.
[47] I have also considered the conditions of Mr. Ahmed’s presentence custody and the fact that he was subjected to lockdowns on at least 290 days. In accordance with Marshall, I have not “deducted” any specific credit because of this. However, I do consider it to be a significant mitigating factor without which the sentence would have been around four years.
(ii) Counts 3 and 6 – Carry Concealed Weapon and Weapons Dangerous
[48] The Crown accepts that the sentences for possession of a weapon dangerous to the public peace and carrying a concealed weapon should be concurrent to the sentence on Count 10. I agree and sentence Mr. Ahmed to imprisonment for one year on Counts 3 and 6, to be served concurrently with the sentence on Count 10.
(iii) Count 11 – Possession of Firearm With Defaced Serial Number
[49] Crown counsel submits that the sentence for possessing a weapon with a defaced serial number addresses a different societal ill and should be consecutive. While I agree that the offence relates to different social harms, convictions almost always occur together with other firearm possession offence convictions and sentences are usually concurrent: R. v. Whittaker, 2021 ONSC 2915, at para.129; R. v. Kabanga-Muanza, 2019 ONSC 1161, at para.126; R. v. Cadienhead, [2015] O.J. No. 3125 (S.C.J.), at para. 28; R. v. Whyte, [2014] O.J. No. 4701 (S.C.J.), at paras. 23-34; R. v. Garvin, 2021 ONCJ 496, at para. 38. That said, the fact that the serial number was defaced is an aggravating factor which I considered in determining the appropriate sentence on Count 10. In the result, Mr. Ahmed is sentenced to imprisonment for one year on Count 11, to be served concurrently with the sentence on Count 10.
(iv) Counts 12, 13 and 14 – Possession of Firearm Contrary to Prohibition Order
[50] Mr. Ahmed has been convicted of three counts of possessing a firearm while prohibited as he was subject to three different prohibition orders. The Crown submits that the sentences on these should be consecutive to the sentences for the other firearm offences and to each other.
[51] I agree that the violation of a prohibition order is a distinct offence and that the sentences should be consecutive to the sentences for the other firearm offences: R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at para. 21-22. Whether the prohibition order sentences should be consecutive to each other is discretionary: R. v. Chambers, 2013 ONCA 680, 295 C.R.R. (2d) 314, at paras. 22-25. In this case, I decline to make the sentences consecutive in order to ensure that the overall sentence is consistent with the principle of restraint. I note that sentences for multiple counts of this offence were concurrent in two of the cases relied upon by the Crown: R. v. Evans, 2013 ONSC 7003, at para. 183; McCue, at paras. 17-20.[^5]
[52] The Crown submits that the sentence for each breach of a prohibition order should be six months. I agree that this is an appropriate sentence: McCue, at para. 23. Mr. Ahmed is sentenced to six months imprisonment on each of Counts 12, 13 and 14, to be served consecutively to the sentence on Count 10 but concurrently with each other.
(v) Counts 1 and 2 – Assault
[53] The Crown submits that the appropriate sentence on each assault count is 15 days and counsel for Mr. Ahmed does not appear to take issue with this. I agree that this is an appropriate sentence. Mr. Ahmed is therefore sentenced to 15 days imprisonment on each of Counts 1 and 2, to be served consecutively.
G. Credit for Presentence Custody
[54] Mr. Ahmed has been in custody since his arrest on May 23, 2020. By my count, he has spent 566 days in presentence custody, which entitles him to credit of 849 days, or approximately 28 months.
H. Probation
[55] As outlined earlier, I accept that the consumption of alcohol played a role in the commission of these offences as well as other offences on Mr. Ahmed’s record. On his own account, he has difficulty controlling his alcohol consumption when he drinks. In my view, he would benefit from some counselling in this regard. For this reason, once he completes his sentence Mr. Ahmed will be placed on probation for a period of 12 months. In addition to the statutory conditions, he is to report to a probation officer within 72 hours of being released and thereafter as directed and is to take such counselling for alcohol abuse as recommended by his probation officer. Mr. Ahmed may have his probation transferred to Montreal, where he resides.
I. Prohibition Order
[56] In accordance with s. 109(1) and (3) of the Criminal Code, there will be an order prohibiting Mr. Ahmed from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.
III. DISPOSITION
[57] For the foregoing reasons, Mr. Ahmed is sentenced as follows:
Count 1 – 15 days
Count 2 – 15 days, consecutive
Count 3 – 1 year, consecutive
Count 6 – 1 year, concurrent with Count 3
Count 10 – 2 years and 9 months, concurrent with Counts 3 and 6
Count 11 – 1 year, concurrent with Counts 3, 6 and 10
Count 12 – 6 months, consecutive
Count 13 – 6 months, concurrent with Count 12
Count 14 – 6 months, concurrent with Counts 12 and 13
TOTAL: 40 months (3 years and 4 months)
Mr. Ahmed is entitled to credit of 28 months for 566 days spent in presentence custody. The sentence that remains to be served is 12 months.
[58] Mr. Ahmed is placed on probation for a period of 12 months. In addition to the statutory conditions, he is to report to a probation officer within 72 hours of release and thereafter as directed and is to take such counselling for alcohol abuse as recommended by his probation officer.
[59] There will an order pursuant to s. 109(1) of the Criminal Code for life.
Justice P.A. Schreck
Released: December 10, 2021.
COURT FILE NO.: CR-20-10000309-0000
DATE: 20211210
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ABDURAHMAN AHMED
REASONS FOR SENTENCE
P.A. Schreck J.
Released: December 10, 2021.
[^1]: An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.
[^2]: Mr. Ahmed was also found guilty of an offence contrary to s. 91(1) of the Criminal Code (Count 4) which was stayed pursuant to the rule against multiple convictions. Counts 5, 7, 8 and 9, which charged Mr. Ahmed with offences contrary to ss. 92(1), 91(2) and 86(1) of the Code, were withdrawn by the Crown. The parties agreed that Counts 12, 13 and 14 should be severed and tried by me without a jury but based on the jury’s findings.
[^3]: The report is attached as an appendix to the trial judge’s sentencing reasons in Morris, which are reported at 2018 ONSC 5186, 422 C.R.R. (2d) 154.
[^5]: In McCue, the offender had been found guilty on two counts of possession of a firearm contrary to a prohibition order but one of the convictions had been stayed pursuant to the rule against multiple convictions: McCue, at para. 4.