Court File No. CR-21-50000276
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ABDIRAHMAN WARSAME
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE A. M. MOLLOY
on Friday, January 14, 2022, at TORONTO, ONTARIO
APPEARANCES:
S. MALIK Counsel for the Crown
R. GOLEC Counsel for Abdirahman Warsame
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Reasons for Sentencing 1
A. Introduction 1
B. Circumstances of the Offence 2
C. Circumstances of the Offender 3
D. Aggravating and Mitigating Factors 5
E. Denunciation, Deterrence and Rehabilitation 5
F. Parity in Sentencing 6
G. Consecutive Sentences, Totality and the Step Principle 10
H. The Appropriate Sentence in this Case before Credits for Time Served 11
I. Deductions for Time Served and Time on Bail 15
J. Custodial or Conditional Sentence 26
K. Conclusion 31
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically
Transcript Ordered:
JANUARY 14, 2022
Transcript Completed:
JANUARY 21, 2022
Ordering Party Notified:
JANUARY 21, 2022
FRIDAY, JANUARY 14, 2022
R E A S O N S F O R S E N T E N C I N G
MOLLOY, J. (Orally):
A. INTRODUCTION
Abdirahman Warsame was facing two sets of charges: one set from an incident on April 15, 2019 in Mississauga; and the second from September 8, 2020 in Toronto. Both sets of charges involved a loaded prohibited handgun. He was on bail in respect of the Mississauga charge when the incident giving rise to the Toronto charge occurred. Mr. Warsame entered a guilty plea to the following:
(1) Possession of a loaded prohibited firearm in Mississauga on April 15, 2019, contrary to s. 95(1) of the Criminal Code.
(2) Possession of a loaded prohibited firearm in Toronto on September 8, 2020, contrary to s. 95(1) of the Criminal Code.
(3) Breach of the house arrest term of his recognizance on September 8, 2020.
It is now my task to sentence Mr. Warsame for these offences. Notwithstanding the guilty plea, this was not a joint submission. The defence seeks a one-year conditional sentence after various credits for time Mr. Warsame has served in custody and when on bail. The Crown seeks a sentence of five years less some credit for time served. However, the Crown’s position is that even after allowing appropriate credits, the time remaining to be served is over two years making a conditional sentence unavailable. Further, even if the credits bring the sentence below two years, the Crown submits that the serious nature of the charges requires a sentence of incarceration.
The pre-sentence credits sought by the defence total 924 days. The defence submits that a further sentence of 12 months condition is appropriate. Bringing the total effective sentence to 1289 days or approximately 3.5 years.
B. CIRCUMSTANCES OF THE OFFENCES
i. The Mississauga Offence
On April 15, 2019 at approximately 11:00 p.m., police attended at an address in Mississauga in response to a report of shots being fired. As they arrived, they saw three men, one of whom was Mr. Warsame, running from the area where the shots were fired and towards a parked car. Mr. Warsame got into the rear seat. When the three men saw the police, they ran in three different directions. Mr. Warsame was caught on video placing a handgun on the ground. It was a 9mm Luger, semi-automatic and it contained eight rounds in the magazine and one in the chamber. Mr. Warsame was not alleged to have discharged the firearm that night.
ii. The Toronto Offences
On September 8, 2020 Toronto Police stopped a vehicle on a Highway Traffic Act violation. There were three men in the car, Mr. Warsame being one of them. The driver did not have a driver’s license on him. He was charged with obstruct police. Mr. Warsame and the other passenger were ordered out of the car. Police searched the vehicle and found a handgun in a satchel in the back seat. They arrested all three men for joint possession of that gun. The police then searched Mr. Warsame, incident to his arrest, and found he had a prohibited handgun in the waist band of his pants. There were six rounds of ammunition in the magazine and one in the chamber. Mr. Warsame was also charged with possession of that gun, which is the offence to which he has now pleaded guilty.
Mr. Warsame had been released on bail on April 23, 2019 in connection with the Mississauga charges. He was still subject to that bail on September 8, 2020 and in breach of a provision that he remain in his residence except when in the presence of his surety.
C. CIRCUMSTANCES OF THE OFFENDER
Mr. Warsame is now 31-years old. He has no criminal record. He was born in Somalia in 1990. His parents fled that country when he was only eight-months old. The family spent four years in a refugee camp in Yemen before making it to Canada with the assistance of a church group. Mr. Warsame has been a Canadian citizen since 1996. In 2013, he married a Somalian woman. They have three children together, now aged seven, four and three. His wife and children still live in Somalia. Mr. Warsame has been working to sponsor his family to come to Canada since before these charges arose. His older two children have been approved but the applications for his wife and youngest child are still pending.
Mr. Warsame completed high school in Rexdale. He then completed one semester at Seneca College in an accounting program. He has had a fairly solid work history since 2011 including a period of time in Fort McMurray. He has expressed an interest in taking courses on cyber security in the future. A teacher who filed a letter of support on sentencing and who has known Mr. Warsame since he was five-years old, described him as one of her most memorable students and said he was particularly gifted in mathematics.
Mr. Warsame has a good reputation in his community. Letters of support were filed from the Somali Canadian Association of Etobicoke, the Darul-Hijra Mosque, where he is an active member and a non-profit organization called Focus Youth. Prior to the incidents giving rise to these charges, Mr. Warsame volunteered his time with Focus Youth, working with young people on Tuesday’s and Friday evenings and had completed 60 hours as a volunteer worker from September 18, until March 2019.
While in custody, Mr. Warsame completed four educational programs as follows: October 6, Anger Management (one hour), October 8, 2020, Substance Abuse (one hour), October 13, 2020, Problem Solving (one hour), October 20, Thoughts to Action (one hour). It is very much to his credit that he was able to do any of these programs while in custody. There was very limited programming available in the institutions due to the Covid restrictions.
From the glowing references filed, it would appear that these offences were very much out of character for Mr. Warsame. On the other hand, I have been given no explanation for why he deviated from the path he’d apparently been on all his life and I have no insight whatsoever into why he was in possession of a loaded firearm on these two occasions.
While in custody, Mr. Warsame tested positive for Covid-19 in December, 2020. He was subsequently released on bail but continues to suffer side effects typical of what has been referred to as “long Covid.”
D. AGGRAVATING AND MITIGATING FACTORS
I am required under the Criminal Code, to take into account any aggravating and mitigating factors. There are strong mitigating factors. Mr. Warsame is 31-years old and has no criminal record. He had a difficult start in life as a refugee from war-torn Somalia; however, he has done well in Canada and now has strong family ties here. He appears to have been engaged in a pro-social lifestyle, working consistently and helping others within his church and his community. He has a wife and three young children to whom he appears to be devoted. Further, Mr. Warsame has pleaded guilty to these offences and demonstrated, what I consider to be true remorse for his conduct.
There are also serious aggravating factors. There are two separate firearms involved here. Mr. Warsame had possession of both while out and about in the community. Both were loaded, including having one in the chamber ready to fire. On the first offence, he abandoned the gun in a public place where it presented a grave danger to the community. It is seriously aggravating that while on bail for the possession of the first firearm, he was again found in possession of the second loaded firearm and was also in breach of the house arrest provision of his bail at that time.
E. DENUNCIATION, DETERRENCE AND REHABILITATION
Among the objectives of sentencing stipulated in the Criminal Code are:
(1) Denunciation of the conduct,
(2) Deterrence of this specific offender to encourage him not to reoffend,
(3) General deterrence to prevent others from committing similar offences; and
(4) Rehabilitation of the offender.
The goals of denunciation and deterrence on the one hand and the goal of rehabilitation on the other, often pull in opposite directions. That is very much the case here. I am well aware of the strong and consistent caselaw emphasizing the primary importance of denunciation and deterrence in sentencing for firearms cases. See, for example, R v. Danvers, (2005) 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (O.C.A); R. v. Brown, 2010 ONCA 745. I am also well aware that illegal handguns are a scourge that threatens the safety of our whole community. In this case, there were two separate firearms. Both loaded and being carried about in the community. These are factors calling for a stiff sentence.
On the other hand, the goal of rehabilitation cannot be ignored. Mr. Warsame has a strong prospect of rehabilitation. He has a good track record prior to these offences, excellent supports in his community and is highly incentivized to get his life back on track so that he can bring his wife and children here from Somalia. He is motivated to find work so that he can demonstrate his ability to support his family. He will need to regain his health to do that and perhaps pursue further education or training. It appears to me he has the background and the on-going support to make this a realistic and achievable goal. A prison term would not advance that goal and might, in fact, undermine it.
F. PARITY IN SENTENCING
As much as is possible, similar offenders should receive similar sentences for crimes committed in similar circumstances. This is an important principle to ensure consistency in sentencing. Widely divergent sentences for seemingly similar offences would not tend to promote public confidence in the administration of justice. It is therefore important to look at judicial precedent in determining an appropriate range for a particular offence. Having said that, I hasten to add that no two offenders will ever be exactly alike. The variety of circumstances in which crimes are committed is infinite.
The Ontario Court of Appeal has emphasized the importance of prison sentences for possession of firearms that fall within the “true crime” end of the spectrum of circumstances in which the offence of possession of an illegal firearm might fall. Mr. Warsame’s possession of these two handguns falls within the “true crime” end of that continuum. It is worth noting, however, that apart from being in possession of the firearm, there is nothing to indicate Mr. Warsame was committing other crimes such as, dealing in drugs or engaging in robberies.
The Court of Appeal has also established that three to five years is the normal range of sentence for possession of a loaded firearm that falls within the “true crime” category of possession. See R.v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82; R. v. Mansingh, 2017 ONCA 68, at paras. 21-24; R.v. Crevier, 2015 ONCA 619, at paras. 128 - 129; R. v. Kandhai, 2020 ONSC 3580, at para. 95.
There are some parallels here between Mr. Warsame’s and the circumstances in R. v. Nur. Mr. Nur was also a Somalian refugee with a supportive pro-social family here in Canada. He also had no criminal record. He was in the vicinity of a community centre when police arrived in response to a call. There was no evidence that the circumstances prompting the police presence had anything to do with Mr. Nur. However, when the police arrived, Mr. Nur ran and discarded a handgun under a car in the course of that flight. These circumstances are strikingly similar to the offence committed by Mr. Warsame. The main distinguishing feature between the two is that Mr. Nur was only 19-years old at the time of his offence and still in high school. His extreme youth was a mitigating factor. At 31, Mr. Warsame is still a young man but does not get the same mitigating effect as for a 19-year-old high school student.
At trial, Mr. Nur was sentenced to 40 months. That sentence was upheld by the Court of Appeal and subsequently, the Supreme Court of Canada. Mr. Warsame was more than a decade older and he committed two separate offences with two different guns and committed the second offence while on bail for the first. Those circumstances warrant a sentence beyond 40 months imposed on Mr. Nur and point to the upper end of the range, if not beyond it. A range for an offence is a useful approach in order to respect the principle of parity in sentencing. However, the existence of a recognized range does not mean that individual sentences cannot go above or below that range depending on the applicable aggravating and mitigating circumstances.
The Supreme Court of Canada held in R. v. Lacasse, 2015 SCC 64, at paras. 57-58:
“Ultimately, whatever mechanism or terminology is used, the principle on which it is based remains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered averages, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:
Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decision that the “range,” as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.
[emphasis added]
G. CONSECUTIVE SENTENCES, TOTALITY, AND THE STEP PRINCIPLE
Usually, offences that are separate events in time and or place, rather than part of a continuous chain of conduct, will warrant separate sentences. Therefore, in the normal course, I would impose one sentence for the gun possession in Mississauga, and a consecutive sentence for the gun possession in Toronto, just over a year later. Further, because there must be consequences for the breach of bail, I would impose a further consecutive sentence for the breach, likely at about three to six months. Each of the firearm sentences, would attract a similar sentence, which in light of all the mitigating factors I have mentioned so far, I would put at three and a half to four years. That would bring the total sentence, before any reductions, to between seven years, three months and eight and a half years. However, in all of the circumstances of this case, I find either seven years or eight and a half years would be unduly harsh.
There are important principles of sentence which apply to alleviate such circumstances. First, as I’ve already mentioned, the sentencing ranges are merely guidelines, not straitjackets that prevent tailoring a sentence to the circumstances of a particular offence. Second, an initial sentence for a first offender, particularly in light of the mitigating factors here, should not be so long that it would be crushing in its impact. Apart from his pre-trial detention on these charges, Mr. Warsame has never been to jail. Seven or eight and a half years in a federal penitentiary, would, in my view, be crushing, particularly for a devoted father with young children. In my view, such a sentence would undermine the very realistic prospect of rehabilitation here. The principle of totality requires that the total amount of the sentences we looked at globally and reduced, if the effect would be unduly harsh. Third, s. 718.2(b) of the Criminal Code specifies that:
“Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.”
Fourth, the Criminal Code also provides in s. 718(2)(d) that an offender should not be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances. In my opinion, a sentence of eight and a half years, is far more than is necessary to achieve the objectives of sentencing in this case.
H. THE APPROPRIATE SENTENCE IN THIS CASE BEFORE CREDITS FOR TIME SERVED
Giving the unduly harsh result of sentencing, each offence consecutively, I turn to considering what would be a fit sentence if considered globally. Indeed, this is the approach taken by Crown counsel in coming to her position that the appropriate sentence in total would be five years. To reach that point, she contemplated a sentence of four to six months for the breach of recognizance as consecutive to the sentence for the two firearms. I find myself, essentially, in substantial agreement with the position taken by the Crown. However, in my view, a sentence of four and a half years is an appropriate global sentence in all of the circumstances, which is just slightly less than what the Crown was suggesting.
I would allocate four years, three months for the gun offences concurrent to each other and a further three months consecutive for the breach of the bail conditions. That is the equivalent of 54 months. In my view, as was conceded by the Crown, Mr. Warsame’s guilty plea during a pandemic, particularly knowing that the Crown would be seeking a further term of imprisonment is a significant mitigating factor. When this is added to the other mitigating factors, a sentence close to the 40-month sentence imposed in Nur, is not out of line, notwithstanding the difference in the ages of the two offenders. However, there were two guns, which has to move the global sentence up close to the top of the range.
The Crown filed a helpful chart of sentences in which the offender was found in possession of multiple illegal firearms. Some of those cases had circumstances more serious than the one now before me. For example, in R v. Rogers, (unreported decision of Maylor, J., dated, July 9, 2021) the offender was sentenced to 7.5 years, but this was after trial. The offender had a criminal record and there were four loaded handguns involved.
I would also distinguish R. v. Lambert, which had none of the mitigating factors influencing Mr. Warsame’s sentence, and in which the offender had three loaded handguns, two loaded sawed-off shotguns and two rifles along with ammunition and in combination with crack cocaine, which he was selling.
The Crown also relied on the case of R. v. Ward-Jackson, 2018 ONSC 178, in which Kelly, J. imposed a global sentence of 11 years. Mr. Ward-Jackson was 30 years old and pleaded guilty, factors he has in common with Mr. Warsame. However, the other circumstances are remarkably different. Mr. Ward-Jackson was not merely in possession of illegal firearms, he trafficked in them. He sold three separate handguns to Dellen Millard, two of which were used in murders committed by Mr. Millard. Mr. Ward-Jackson was also found in possession of an AK47 assault rifle, over 100 rounds of ammunition and 13 grams of cocaine. He had a prior related criminal record and was found to be in breach of both a s. 109 prohibition order and a recognizance. Again, these circumstances are manifestly far more aggravating than the circumstances of Mr. Warsame’s offences.
R. v. Fletcher, [2008] O.J. 697, is also distinguishable because of Mr. Fletcher’s prior criminal record including robbery with violence, possession of cocaine for the purpose of trafficking, theft, possession of a loaded or restricted prohibited firearm. At the time of his arrest for attempted murder, he was found to be in possession of a loaded handgun and a loaded sawed-off shotgun. Mr. Fletcher was acquitted of the attempted murder and related offences but convicted of possession of the two firearms. Justice Spies sentenced him to five years concurrent for possession of the two firearms and 18 months consecutive for breaching prohibition orders. The total sentence was 6.5 years. Mr. Fletcher did not plead guilty and he had a criminal record. Mr. Warsame has far more mitigating factors in his favour. However, Mr. Fletcher was found in possession of both firearms in his apartment, not out in the community and in two separate incidents, as was the case for Mr. Warsame.
R. v. Taylor, 2013 ONSC 4306, is also somewhat similar in that the offender was 32 years old, had no criminal record, had a positive employment history and was found to have good prospects for rehabilitation. Mr. Taylor did not plead guilty. He testified at trial that he was told to hold on to two firearms by a man he knew to be a criminal. He said he was afraid for his life if he refused to hold the guns for this man and afraid to call the police. The trial judge, Thorburn, J. (as she then was), held that the defence of duress did not apply and convicted Mr. Taylor of possession of two loaded firearms and an over capacity magazine. Mr. Taylor had both firearms in his possession in a public place when he was arrested. He was sentenced to a global sentence of four and a half years. With Mr. Taylor, there was only one incident and no bail violation. However, he did not have the mitigating influence of a guilty plea.
I have also considered the case authorities submitted by the defence in which sentences of two years or less were imposed for possession of a firearm.
• R. v. Filian-Jiminez, 2014 ONCA 602 (18 months)
• R. v. Campbell, 2017 ONSC 26 (2 years)
• R. v. Egonu, [2007] O.J. No. 5607 (23 months)
• R. v. Shomonov, 2016 ONSC 4015 (21 months)
In Filian-Jiminez, the Ontario Court of Appeal, in a very brief endorsement, held that although the 18 months sentence was “very low”, the trial judge had not erred in principle and the sentence was not manifestly unfit. The offender had repudiated his membership in a gang, changed his lifestyle and had obtained full-time employment. The trial judge accepted that his sole purpose in having the gun was for self-protection after an incident when shots were fired at the home he shared with his mother and girlfriend. Only one gun was involved and it was not being carried in public.
The other cases cited by the defence also involved only one gun and that gun was not being carried around in the community (although in Egonu, the gun was in a backpack, which the sentencing judge found lead to the inference that it was intended to be carried outside the home). I note as well that Egonu preceded the Court of Appeal focus on the three-to-five-year range for true crime possession of a firearm beginning with the decision in Nur in 2013, and in several other subsequent cases. Accordingly, I find that the appropriate global sentence for Mr. Warsame in all of the circumstances is four and a half years. As mentioned, I have allocated this as four years and three months concurrent on each of the s.95(1) weapons offences and three months consecutive for the breach of recognizance.
I. DEDUCTIONS FOR TIME SERVED AND TIME ON BAIL
i. Summers Credit for Time Served
The Crown does not dispute that Mr. Warsame should be credited for time served on a 1.5 to one basis pursuant to the decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Mr. Warsame served eight days in custody in relation to the first set of charges in Peel. He is entitled to 12 days credit for those days.
Mr. Warsame served a further 197 days at the Toronto South Detention Centre after his arrest on the Toronto charges and before again being released on bail. For this time, he receives a Summers credit of 295.5 days which I have rounded up to 296. The total Summers credit is 208 days.
ii. Downes Credit for Time on Bail
Mr. Warsame was on a strict form of bail from April 23, 2019 to September 18, 2020. A period of approximately 16 and a half months. That bail included a house arrest provision, although this was relaxed somewhat in July 2019, to allow Mr. Warsame to work with his brother at his travel agency. Needless to say, Mr. Warsame breached that provision at least once as he was arrested in September 8, 2020 while nowhere close to his residence and not in the presence of a surety. Mr. Warsame was then held in custody for the period from September 8, 2020 to March 24, 2021. While at the Toronto South Detention Centre, he contracted Covid and had lingering effects. He was again released on bail on March 24, 2021 and has been on that bail ever since.
In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), the Ontario Court of Appeal recognized that it was appropriate to give some credit in sentencing for time spent under strict bail terms. In that case, Mr. Downes was not permitted to be outside his residence for 18 months unless in the presence of his surety. The Court of Appeal held that five months credit was appropriate. The Court emphasized that there is no mathematical formula to be applied. The amount of the credit depends on factors such as: the length of time spent on bail; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment, and activity; and any particular impact on the offender. In this case, the total time on bail with respect to the first charges from Peel is 16 and a half months and the period of time on bail for the second period of bail, as of today, is approximately 10 months.
In R. v. Mok, [2017] O.J. No. 3758, McMahon, J. considered the appropriate Downes credit for 28 months under a strict house arrest bail with electronic monitoring. He gave a credit for one half that period of time (i.e. 14 months credit), citing, in particular, the impact of the GPS monitoring. The second period of bail for Mr. Warsame included GPS monitoring and both periods of bail involved serious restrictions on his liberty. In particular, he was separated from his wife and three children. They are unable to obtain visas to travel to Canada to visit him and he has been prevented, by his bail conditions, from visiting them. In these unusual conditions, I am persuaded to adopt the Downes formula, applied by Justice McMahon in Mok, for the second period of bail under the more stringent conditions, that being 149 days credit for approximately 10 months of this stringent bail. I will allow 168 days (a one-third credit) for the period from April 23 to September 8, 2020, for a total credit of 317 days.
iii. Duncan Reduction
The term “Duncan credit” flows from the brief Court of Appeal decision in R. v. Duncan, 2016 ONCA 754, in which the sentencing judge had refused to allow any further credit to an accused for harsh conditions during his pre-sentence custody based on the incorrect legal finding that all pre-trial credits were capped at the 1.5 to one credit allowed in Summers. The Court of Appeal held that, “in the appropriate circumstances, particularly harsh pre-sentence incarceration conditions” could warrant a credit “apart from and above” the Summers credit. The Court also stated that in considering whether any enhanced credit should be given, the Court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.
In this case, Mr. Warsame’s period of incarceration was particularly difficult. Of the 197 days he was incarcerated at the Toronto South, there were 98 days of lockdown. All 197 days were during Covid which also made serving that time more onerous. Programs were shut down for much of that time and visitors were not permitted. Being incarcerated also negatively affected Mr. Warsame’s ongoing attempts to sponsor his wife and children to come to Canada.
In early November 2020, Mr. Warsame’s mother was diagnosed with an advanced stage of pancreatic cancer. Mr. Warsame sought permission to visit her in the hospital. Tragically, she died on November 15, 2020, before he had a chance to say goodbye. He was unable to be with his family to mourn her loss during this difficult time. He also was unable to attend her funeral or visit her grave.
Then, in December 2020, Mr. Warsame, himself, fell ill and tested positive for Covid-19. It is clear he caught the virus while in custody. He was initially ill with a number of symptoms including difficulty breathing, loss of appetite and coughing. He did not require hospitalization. However, he was not one of those people who got Covid and then fully recovered. He continued to have difficulty breathing and difficulty sleeping and described a general feeling of fatigue and anxiety that continues to this day. Whether the fatigue is a direct effect of Covid, and that creates the anxiety, or if the difficulty breathing as a lingering effect of Covid interferes with sleep and that produces fatigue is difficult to say. They would appear to be interconnected. However, Mr. Warsame is still suffering the effects of Covid a year later.
I accept his evidence of that as attested to in his affidavit and as described by others in their letters of support. The Crown did not seek to cross examine on this issue but cautions against putting too much emphasis on it because it is not verified by a doctor’s report. Mr. Warsame has explained this to my satisfaction. He did not have a family doctor, even before his arrest. He has not been able to get one since his release, a fact that is no surprise. His only option for medical attention has been through walk-in clinics, which is difficult at the best of times but particularly so during a pandemic and while under house arrest. There is no medical expert evidence available that could show the progress and consistency of Mr. Warsame’s illness. However, I am satisfied on the evidence before me that Mr. Warsame does continue to experience the aftereffects of Covid although not to the degree he did when first infected in the institution. Although not verified by a medical report, I do note that any such medical report would be substantially dependent on Mr. Warsame’s self report in any event.
On March 13, 2020, Mr. Warsame discovered some small metal objects in his lunch at the Toronto South Detention Centre. He believed he had already ingested other pieces of metal in the portion of the lunch he had already eaten. The presence of a piece of metal in Mr. Warsame’s food was confirmed by a correctional officer who saw it. Mr. Warsame was taken to hospital and x-rays were taken but nothing was found. Nevertheless, Mr. Warsame’s anxiety intensified after this incident.
There is no science involved in determining the extent to which the hardship endured during pre-sentence custody can be treated as a mitigating factor reducing a sentence. The case law repeatedly refers to there being no mathematical formula. A review of the caselaw confirms that no clear formula emerges although it is also apparent from the caselaw that the repeated submission from defence counsel is that a formula of 1.5 to one should be applied to the number of days spent in lockdown. Before me, defence counsel, Ms. Schofield referred to three categories of pre-sentence custody for Mr. Warsame. She conceded that the initial eight days in relation to the first charges in Peel do not fall within the Duncan category. I agree. For those eight days, Mr. Warsame would receive only the standard Summers credit of 1.5 to one.
All of the remaining 197 days were served during Covid of which 98 days were spent in lockdown. For that period of lockdown, Ms. Schofield submits that the appropriate Duncan credit would be a further 1.5 to one, for a credit of 147 days. With respect to the remaining 99 days, she proposes a one-to-one credit of 99 days to reflect the difficulties caused by Covid within the institution, family issues, and contracting Covid. Thus, the total Duncan credit sought is 246 days. Ms. Malik, for the Crown, took no issue with the 147-day credit for time spent during lockdown but submitted that the additional Duncan credit for the circumstances should only be an additional 30 days rather than the 99 days sought by the defence.
My own review of some of the more recent caselaw shows a little consistency with respect to the Duncan credit during Covid. That is not surprising because the impact on the individuals involved varies greatly. What is clear from the case law, however, is that both Covid and periods spent in lockdown are relevant factors to take into account. In R. v. Ashton, 2021 ONSC 3994, Leibovitch, J., provided a useful summary of the credits given in other cases as follows at paragraph 63,
• R. v. Inniss, 2017 ONSC 2779, per Forestell, J. - a one year reduction in sentence for approximately one year of lockdowns (one third of the time in lockdown)
• R. v. Persad, 2020 ONSC 188, per Schreck, J. (1.5 days credit for each day spent in lockdown for a total of 300 out of 405 days)
• R. v. Studd, 2020 ONSC 2810, per Davies, J. (189 days credit was given for 198 lockdown days and there was a four-month reduction in the sentence for Covid-19)
• R. v. M. W., 2020 ONSC 3513, per Boswell, J. (three months credit for 29 days lockdown and pre-sentence Covid factors)
• R. v. Tsegazab, 2020 ONSC 7708, (201 days credit given for 198 days of full and partial lockdowns in addition to one day credit given for every day in custody since the pandemic)
• R. v. Omoragbon, the Court of Appeal stated the trial judge gave .36 years credit for 113 days in lockdown
• R. v. Prince, 2020 ONSC 6121, per Cavanaugh, J. (a further credit of 16 months given for 321 days of lockdown and to take into account the Covid-19 pandemic)
• R. v. Illunga, 2021 ONSC 265, per Smith, J. (20 days credit for the hardship suffered during 42.5 days of lockdown)
• R. v. McNicholls, 2020 ONSC 6499 (two months credit for approximately 200 days lockdown)
• R. v. Nazir, 2020 ONSC 4991, per Lowe, J. (75 days credit for 381 lockdown days).
In addition to those cases, cited in Ashton, I would add the following,
• R. v. Clarke, 2020 ONSC 3878, per Kelly, J. - 530 days in custody of which 224 days were in lockdown and 88 days during Covid. A credit of 10 months (approximately one-to-one for days in lockdown and Covid)
• R. v. Baldwin, 2021 ONSC 7025, per Maxwell, J. - 512 days in total, all during Covid, of which 124 days were in lockdown (one year credit)
• R. v. Steckley, 2020 ONSC 3410, per Kelly, J. - 645 days in custody of which two months were during Covid, 540 days at the Toronto East and 105 at Toronto South of which 25 percent of the Toronto East days were in lockdown and 69 percent of the Toronto South days were in lockdown. (The total Duncan credit was 10 months which is approximately 1.5 to one for the lockdown days.)
• R. v. Bernard, 2021 ONSC 5817, per Forrestell, J. - 1175 days in custody with 536 in Covid and 456 days in a lockdown. A credit of two years (the equivalent of one-to-one for lockdown and approximately half for days in Covid)
• R. v. J. G., 2021 ONSC 1095, per Barnes, J. - 1299 days in custody of which 203 days were in lockdown because of the effects of Covid (1.5 to one for lockdown days)
Of all of the cases I have reviewed, both on my own and as cited by counsel, no offender has had the same level of problems associated with Covid as has Mr. Warsame. The closest case to this one is a recent decision relied on by Ms. Schofield in R. v. Doan, 2021 ONSC 4871, [2021] O.J. No. 3784. In that case, Mr. Doan had been in custody for 864 days prior to sentencing. During that time, he was under full lockdown on 33.6 percent of the days and partial lockdown for five percent of the days (290 full lockdown and 43 partial). All of this time was during the Covid-19 pandemic. Further, Mr. Doan contracted Covid while in custody and testified that he still had lingering effects.
The sentencing judge, Bird, J. did not assign a specific credit in terms of the number of days. She held that apart from mitigating factors, she would have sentenced Mr. Doan to 11 years, but after taking into account all mitigating factors including the Duncan circumstances, she reduced that sentence to five years less one day in addition to time served of 864 days, credited at three years and 6.7 months. It is difficult to determine the extent to which the Duncan credit is reflected in the total reduction of six years for mitigating factors. However, the Crown sought 12 years. Working backwards, the effective sentence prior to credit for mitigating factors would be five years plus three years and 6.7 months, so, approximately eight and a half years. That means the mitigating factors resulted in a reduction of approximately two and a half years, but I have no way of knowing how much of that is a Duncan credit.
The Court of Appeal in R. v. Marshall, 2021 ONCA 244, while stressing that this a mitigating factor and not a credit per se, nevertheless recognized that it is acceptable to do the calculation as a numerical deduction. In my view, this is a preferable approach for three important reasons. One, it is useful as a guide for other judges promoting consistency in sentencing. Two, it sends a direct message of judicial disapproval with respect to unacceptable conditions in the correctional institutions. And three, it provides transparency for the purposes of appellate review.
It is well recognized that collateral consequences of imprisonment can be taken into account in determining an appropriate sentence. As stated by Schreck, J. in R. v. Persad, 2020 ONSC 188, (at para. 27)
It is now well established that particularly harsh presentence incarceration conditions can justify beyond the ordinary credit for presentence custody: R. v. Duncan, 2016 ONCA 754, at para. 6. This follows from the principles of individualization, parity and proportionality. Where an offender has been subject to particularly harsh presentence custody, he has been subject to consequences resulting from the offence that have a more significant impact on him. Like collateral consequences such as immigration consequences, this additional impact must be considered to ensure that the sentence is proportionate and tailored to the individual circumstances of the offender: R. v. Suter, 2018 SCC 34, at paras. 46 to 50; R. v. Nasogaluak, 2010 SCC 6, at paras. 40 to 43; R. v. Doyle, 2015 ONCJ 492, at paras. 33 to 48.
The principles established in these cases, and also in Duncan recognize that the degree of punishment imposed is often not measured merely in a number of days covered by a sentence. Because of collateral consequences, the impact of a particular sentence may be considerably harsher on one individual as compared to another. That is the rationale underlying the Duncan credit which provides a reduction in sentence based on things that have already occurred which are seen as mitigating, for example, harsh circumstances. The same rationale applies going forward as for example, imposing a somewhat lesser offence because of immigration consequences. This is always subject to the proviso that these consequences applied to mitigate the length of the sentence must never bring the sentence below what would be a fit sentence in light of the seriousness of the offence and the degree of responsibility of the offender.
In this case, given the number of lockdowns and impact of Covid restrictions on Mr. Warsame, I would easily have applied a credit of one-to-one for lockdowns and some additional credit for conditions during Covid. Indeed, a credit of one-to-one for the entire period would not be inappropriate and in line with many of the authorities. That would be a total credit of 197 days. However, that is without regard to the fact that Mr. Warsame contracted Covid-19 while in custody and is still feeling the effects of it a full year later. It is impossible to predict what the long-term effects will be as science has not yet been able to fully investigate the implications of what has become known as “long-Covid.” In addition, Mr. Warsame was unable to say goodbye to his mother before she died, unable to attend her funeral and unable to mourn with and be comforted by his family and friends in the community.
The time he has already served has been extremely harsh. Going forward, if he is now to return to prison, he would start serving that sentence in the face of what is now the fourth wave and the most contagious iteration of the Covid virus. Infections are rampant in the correctional institutions, many of which are now in full lockdown as a result. Conditions in the prisons, particularly for someone who has already been weakened by the virus will be onerous.
In all of these extraordinary circumstances, I am applying a further reduction to Mr. Warsame’s sentence, primarily due to what he’s already been through but also to a lesser extent because of the perspective impact of serving further time under Covid which I set at 300 days.
I have determined that four and a half years is a fit sentence. That is the equivalent of 1,642.5 days. After deducting 300 days for the Duncan factor, that leaves 1,342.5 days or approximately 3.7 years, which in my view remains a fit sentence.
iv. Time Remaining after Credits and Reductions
I have determined that a fit global sentence in all the circumstances is four and a half years. That is the equivalent of 1,642.5 days. From this, I would deduct the following: 300 days, pursuant to Duncan; 308 days, Summers credit; 317 days, Downes credit. The total credits are 925 days. That leaves 717.5 days left to serve, which is the equivalent of 1.97 years. For east of computation, I will consider that to be two years less a day.
J. CUSTODIAL OR CONDITIONAL SENTENCE
Given that the remaining sentence is two years less a day, Mr. Warsame meets all of the requirements under s. 742.1 of the Criminal Code and is eligible for a conditional sentence. The main obstacle to a conditional sentence is the emphasis on denunciation and deterrence for crimes involving handguns. Apart from that issue, I find Mr. Warsame would be an excellent candidate for a conditional sentence. He is generally remorseful for this conduct and for the conduct underlying these charges and has excellent prospects for rehabilitation. These offences are out of character for him by all accounts I have heard. He has a supportive family and a network of other supports in the community. I do not consider him to be a threat to the safety of the community. The question then is whether a conditional sentence is appropriate given the gravity of the offences and the principles of denunciation and deterrence.
I start from the premise that if a conditional sentence is adequate to meet the fundamental purposes and principles of sentencing, then it is appropriately imposed. That is particularly so for a first offender. Non-custodial options should always be preferred if they are adequate to fulfill the principles of sentencing. Clearly, the goal of rehabilitation is served by a conditional sentence. Indeed, that goal would be seriously compromised if Mr. Warsame were to be required to serve the remainder of his sentence in custody. Specific deterrence also does not require a jail term. As I have already said, I do not believe the safety of the community is in jeopardy if a conditional sentence is imposed.
It comes down then to whether the requirements of general deterrence and denunciation require a custodial sentence. In R. v. Smickle, I convicted a first-time offender of possession of a loaded handgun. He had been taking selfies while posing with the gun. When the police tactical squad burst through the door of the apartment in which he was staying, literally catching him red-handed with the gun. He did not plead guilty but had many mitigating factors not unlike Mr. Warsame. At the time, there was a mandatory three-year minimum sentence for this offence. I found that mandatory minimum to be unconstitutional and sentenced Mr. Smickle to a one-year conditional sentence. (See R. v. Smickle, 2012 ONSC 602) The Crown appealed. The Court of Appeal upheld my decision striking down the mandatory minimum as unconstitutional, but held that the sentence I had imposed was “manifestly unfit” and invited further submissions on sentence: R. v. Smickle, 2013 ONCA 678.
By the time the case next came before the Court of Appeal, Mr. Smickle had already completed serving his one-year conditional sentence. Both the Crown and defence submitted at the Court of Appeal that two years less a day would be an appropriate sentence. The Crown took the position that after credit for time served, Mr. Smickle should serve the remainder of that sentence in custody. The defence submitted that there was no societal purpose in incarcerating Mr. Smickle after all the time that had passed and any further sentence should be stayed, or in the alternative that a further conditional sentence should be imposed.
As a result of the delay caused as the constitutionality issue proceeded to the Supreme Court of Canada, by the time the issue of the fit sentence came back to the Ontario Court of Appeal, five years had elapsed since the offence, three years since his conviction for the offence, and one and a half years since the completion of his sentence. In these circumstances, and in the light of Mr. Smickle’s good character in the meantime (including working, being in a stable relationship and supporting two children), the Court of Appeal held that further incarceration would not serve the principles of sentencing, imposed a further 12-month sentence of incarceration, but then stayed the execution of that sentence. The Court of Appeal held as follows at paragraphs 18 to 20:
[18] We agree with Crown counsel’s submission that the offence committed by the respondent was serious and that the principles of deterrence and denunciations must be paramount in fixing an appropriate sentence. If those principles cannot be adequately served without further incarceration, then incarceration is necessary, despite the significant hardship to the respondent and the risk it may pose to his rehabilitation and full reintegration into the community.
[19] We are satisfied that the principles of deterrence and denunciation can be fully served without reincarcerating the respondent at this time. This court has clearly indicated that that convictions under s.95 of the Criminal Code demand denunciatory sentences: see Smickle, at para. 30; and R. v. Nur, 2013 ONCA 677, at para. 206. Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand that imposition of sentences at or very near the maximum reformatory sentence, even for first offenders. Staying the execution of the appropriate sentence in this case should not dilute in any way the pronouncements in Nur and Smickle as to the appropriate sentences for s. 95 offences.
[20] Given that the principles of denunciation and deterrence can be adequately served without re-incarceration, we agree with counsel for the respondent that re-incarceration would not serve the other principles of sentencing and would undermine the fundamental purposes of sentencing set out in s. 718. The community is best protected if the respondent continues along the rehabilitative path he has followed in the five years that he has been before the court.
The crimes committed by Mr. Warsame and Mr. Smickle are not similar, although both involved a firearm. Mr. Warsame’s offences are far more serious. He had two guns, not just one, and he had them out in public in a “true crime” type of situation (not alone in an apartment). However, both men are similar in age with a blameless past and history of stable employment and with partners and children they support. By the time of sentencing at the Court of Appeal, through no fault of Mr. Smickle, five years had elapsed since the date of the offence. That is not the case for Mr. Warsame whose offences were in 2019 and 2020. On the other hand, Mr. Warsame pleaded guilty and has already spent considerable time in custody, which I have credited at 308 days for the Summers credit and 300 days for the Duncan credit which is the equivalent of 1.7 years. I rely on the Court of Appeal’s decision in Smickle for the proposition that there can be exceptional circumstances in which the principles of denunciation and deterrence, normally paramount in sentencing for firearms offences, will not require a custodial sentence.
As was the case in Smickle, I find that reincarcerating Mr. Warsame at this point “would not serve the principles of sentencing and would undermine the fundamental purpose of sentencing set out in s. 718” of the Criminal Code. Sending Mr. Warsame to prison at this point, would run the risk of undermining his rehabilitation and his ability to reunite with his family here in Canada. It would serve no useful societal purpose, particularly where the prisons are struggling to control outbreaks of the Covid-19 virus all across the province. Putting Mr. Warsame back into the prison system in which he has already contracted Covid once, and from which he still has not recovered is damaging to Mr. Warsame and adds an unnecessary burden to the correctional system which is already in crisis.
I note that in R. v. Baldwin, 2021 ONSC 7025, my colleague, Maxwell, J., came to a similar conclusion. She imposed a four-year sentence for two counts of possession of a loaded firearm but after various credits, there were 11 months remaining to be served. She imposed a conditional sentence noting in particular the conditions of the pandemic and its impact on the Toronto Detention Centres. That was on October 12, 2021. The Covid situation, particularly in the correctional institutions, is now far worse. Accordingly, I find that a conditional sentence to be served in the community would be a fit sentence in this case for a period of two years less a day.
K. CONCLUSION
I sentence Mr. Warsame to a global sentence of four and a half years which is allocated as follows:
• Four years, three months, possession of a firearm in Mississauga;
• Four years, three months concurrent, possession of a firearm in Toronto;
• Three months consecutive, breach of recognizance.
After allowing credits and reductions, at the equivalent of two and a half years and one day, the remaining time to be served is two years less a day. That sentence is to be served conditionally in the community with the usual statutory terms. The additional terms are set out in the conditional sentence order. These include: house arrest for the first 12 months; a curfew for the next six months; and the statutory terms thereafter (with certain exceptions, such as for religious observance and medical needs); and a volunteer hours requirement.
In addition, there is a DNA Order and a s. 109 Order for 20 years.
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
William Charman
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. Warsame
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
361 University Ave. Toronto, Ontario
(Court Address)
taken from Recording
4899_4-5_20220114_080729__10_MOLLOYA.dcr
, which has been certified in Form 1.
(Date)
(Signature of Authorized Person(s))