R. v. Osman 2022 ONSC 648

COURT FILE NO.: CR-20-70000354-0000

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Evan Akriotis for the Crown

• and -

ADIL MOHAMED OSMAN

James Miglin for Mr. Osman

HEARD: January 14, 2022.

REASONS FOR SENTENCE

CORRICK J.

Introduction

1On December 14, 2021, Mr. Osman pleaded guilty to discharging a restricted firearm with intent to wound, contrary to s. 244 of the Criminal Code, and possession of a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code. He appears before me today for sentencing.

2Mr. Akriotis, Crown counsel, submits that the fit sentence in all the circumstances of this case is seven years for the discharge firearm offence and six months consecutive for the breach of a weapons prohibition order. Mr. Miglin, on behalf of Mr. Osman, agrees that the sentence for the prohibition order breach must be consecutive, but submits that a total sentence of 5½ to six years is the appropriate disposition. Both counsel agree that Mr. Osman is entitled to be credited with the time he has spent in pre-sentence custody in accordance with R. v. Summers, 2014 SCC 26.

3Lastly, both counsel agree that the following ancillary orders should be imposed:

a. an order pursuant to s. 487.05 of the Criminal Code that Mr. Osman provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database;

b. an order pursuant to s. 109 of the Criminal Code for life; and

c. an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Osman from communicating, directly or indirectly, with Aun Ali during the custodial portion of his sentence.

Circumstances of the Offence

4Both offences arise from the same events that occurred on September 13, 2019 at the East York Town Centre, a shopping mall in Toronto. At approximately 4:30 p.m., Aun Ali and Moosa Jogiyat entered a convenience store in the mall. Shortly thereafter, Mr. Osman, and his brother, Said Osman, entered the store. Words were exchanged between the Osman brothers and Messrs. Ali and Jogiyat. Messrs. Ali and Jogiyat left the store through a door that led to the parking lot. Said Osman left the store through the door that led into the mall, leaving Adil Osman behind making a purchase. Upon leaving the store, Mr. Ali went to his car. Mr. Jogiyat stood outside the mall’s vestibule doors. Mr. Ali returned, armed with a knife, and he and Mr. Jogiyat approached Said Osman in the vestibule. There was some sort of confrontation. Dejon Taylor, a friend of the Osman brothers, approached the three men. A fight broke out between the four men during which Mr. Ali stabbed Mr. Taylor in the arm.

5Adil Osman ran from the convenience store and joined the melee in the vestibule. He broke up the fight between Mr. Ali and Mr. Taylor, and then joined the fight between Mr. Jogiyat and Said Osman. Seconds later, the men ran from the vestibule, through the mall’s parking lot, toward a school and adjoining park. Adil Osman drew a handgun from a satchel he was wearing and fired at Mr. Ali as Mr. Ali was entering the park.

6No one was struck by the bullet. Police later recovered a .45 calibre shell casing. The events were captured by surveillance cameras.

7At the time, Adil Osman was prohibited from possessing any firearms by virtue of an order made pursuant to s. 109 of the Criminal Code on April 14, 2010.

Circumstances of the Offender

8Mr. Osman is 34 years old. He is a single man and has no dependants. He emigrated to Canada from Saudi Arabia in 1990 when he was three years old. He is a Canadian citizen. Mr. Osman has a supportive family. His eldest brother, Osman Osman, wrote a letter to the court describing Mr. Osman as diligent and hard-working. As a business owner, Osman Osman indicated in his letter that Mr. Osman will have a position with his company when he is released from prison.

9Another letter was filed on behalf of Mr. Osman from Donna Curtosi, who has known Mr. Osman for more than twenty years. She indicated that Mr. Osman was a role model for her sons when they were growing up. She described Mr. Osman as sensitive, honest, and caring. She is prepared to assist Mr. Osman in any way necessary to help him become a productive member of the community.

10Mr. Osman completed high school and a year at Seneca College in a computer technology program. Since leaving school, he has worked doing general labour, such as roofing and landscaping. He has also obtained work through a temporary agency.

11Mr. Osman has a criminal record. In 2010, he was convicted of obstructing a peace officer and possession of a Schedule II substance for the purpose of trafficking. After receiving credit for 21 days in pre-sentence custody, the sentence was suspended, and he was placed on probation for 15 months. He was also ordered not to possess any weapons for a period of ten years. He was convicted of impaired driving in 2016 and fined $1,200.

12While in custody awaiting trial, Mr. Osman attended several rehabilitative programs. The number of programs offered was limited because of the pandemic. However, he received certificates of successful completion for the following programs:

• Looking for Work

• Maintaining Employment

• Substance Abuse

• Problem Solving

• Anger Management

• It’s a Gamble

Legal Parameters

13Discharging a restricted or prohibited firearm with intent to wound, contrary to s. 244 of the Criminal Code, is punishable by a maximum term of imprisonment of 14 years, and for a first offence (as this is for Mr. Osman), a minimum term of imprisonment of five years.

14Possession of a weapon while prohibited by a s. 109 order, contrary to s. 117.01 of the Criminal Code, is punishable by a maximum of ten years in prison.

Governing Sentencing Principles

15In determining the fit sentence for Mr. Osman, I am governed by the sentencing principles set out in the Criminal Code.

16The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to “contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,

2. deterring the offender and others from committing crimes,

3. separating offenders from society where necessary,

4. assisting in the rehabilitation of the offender,

5. providing reparations for harm done to the victim or to the community,

6. promoting a sense of responsibility in the offender, and

7. acknowledging the harm done to victims and the community.

17The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

18I am also required by s. 718.2 to consider the following when determining the appropriate sentence:

❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and

❏ all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.

Sentences Imposed in Other Cases

19To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I am mindful, however, of Chief Justice Lamer’s caution that, “… the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction:” R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 SCR 500, at para. 92.

20Mr. Akriotis submits that the range of sentence for this crime was set out by the Ontario Court of Appeal in the case of R. v. Bellissimo, 2009 ONCA 49. In that case, the defendant fired several gun shots into a restaurant, seriously injuring one person, injuring another, and nearly killing a third person. The endorsement of the court does not indicate the offences of which the defendant was convicted. At para. 3 of the endorsement, the court held that, “…the range of sentence for these kinds of serious gun related offences is between seven and eleven years.”

21This range has been applied in cases involving intentional shootings that have resulted in injury to someone: R. v. Jefferson, 2014 ONCA 434; R. v. Weeden, 2019 ONSC 773. In Jefferson¸ the defendant was sentenced to ten years after shooting the complainant through a car window, striking his arm. In Weeden, the defendant fired a gun toward a group of people outside a downtown bar. The bullet missed the group but struck an Uber driver waiting nearby.

22In R. v. Haque, 2019 ONCJ 466, at para. 48, Justice Pringle surveyed several cases involving firearm offences and found that the Bellissimo range had been applied to facts where the discharge of a firearm had injured someone.

23Similarly, Justice Schreck, in R. v. Ferdinand, 2018 ONSC 7476, at para. 48, reviewed fourteen decisions in which the range in Bellissimo had been applied. In most of those cases, someone was injured by the discharge of a firearm.

24In cases involving intentional shootings where no one was injured, sentences below seven years have been imposed: R. v. Dhaliwal, 2019 ONCA 398; R. v. Haque; R. v. Jama et al., 2021 ONSC 4871. In Dhaliwal, the Court of Appeal reduced a seven-year sentence to six years for a defendant who fired a bullet into the ceiling of a strip mall, injuring no one. The defendant in Haque participated in a gun fight on a busy Toronto street corner in the middle of the night. He was the only person injured. He was sentenced to 5½ years. Finally, in Jama, two defendants drove into the parking lot of an apartment complex and opened fire on two men sitting in a parked car. At least three shots were fired. No one was injured. Both defendants were sentenced to five years in prison for recklessly discharging a restricted firearm.

25This brief review of the cases indicates that courts consider a number of factors to determine the fit sentence for offences involving the discharge of a firearm: the seriousness of the injury, the number of shots fired, the amount of planning or premeditation, and the offender’s criminal record.

26The circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the governing principles that must guide my decision.

27No matter what the aggravating or mitigating factors are in any one case, the jurisprudence is clear that offences involving the discharge of a firearm merit sentences that emphasize deterrence, both general and specific, and denunciation.

Aggravating and Mitigating Circumstances

28I turn now to consider the aggravating and mitigating circumstances.

29The time and place of this shooting significantly aggravate the seriousness of this offence. I agree with Mr. Miglin that the fact that this shooting occurred in public does not make it unique. These types of offences typically occur in public. However, I do not agree that a shooting outside of the East York Town Centre at 4:30 on a Friday afternoon near an elementary school is the same as a shooting outside a night club at 1:00 in the morning or a shooting at the corner of Bloor and Bathurst at 3:00 a.m. as in the Haque case. One would not expect to see children outside of a night club or on a street corner at 3:00 in the morning. Children are less able to fend for themselves in an emergency and deserve to have the adults around them protect them, not put their lives at risk from stray bullets.

30The shooting caused fear and panic among the bystanders. The video shows people running to the shopping mall to take cover, and others pulling their children close to shield them.

31It is difficult to overstate the risk to public safety created by Mr. Osman’s dangerous actions that afternoon.

32There are also mitigating circumstances that I have considered. Mr. Osman did not initiate the physical altercation with Messrs. Jogiyat and Ali, nor was he the first person to use a weapon. Mr. Osman used the firearm in response to Mr. Ali’s stabbing of Mr. Taylor. There was no planning or pre-meditation involved. It was Mr. Osman’s spontaneous reaction to Mr. Ali’s aggression.

33Fortunately, no one was struck by the bullet. I recognize that this was simply a product of good luck, and that someone could easily have been injured or worse, but as Justice Pringle said at para. 46 in Haque, “…in sentencing, consequences matter.”

34Mr. Osman pleaded guilty, accepted responsibility for his crime and expressed his remorse. Although his plea was not entered early in the proceedings, it has saved the time and resources that would have been necessary to conduct a trial. This is particularly significant now given the backlog of criminal trials in Toronto that has developed over the course of the pandemic.

35In his statement to the court, Mr. Osman said that he had no justifiable reason for having a firearm. He took responsibility for his actions and apologized to everyone affected. I accept his expression of remorse and acceptance of responsibility as genuine.

36Mr. Osman has support in the community to assist him in his rehabilitation. He has the support of his family. His brother is prepared to give him employment when he is released. Ms. Curtosi, who is a child and youth worker, indicated that she was prepared to assist Mr. Osman to become a productive member of the community. He successfully completed several programs when they were available to him in custody.

37There is a substantial gap in Mr. Osman’s criminal record, indicating his ability to be a law-abiding member of society. This too speaks well of his rehabilitative prospects.

38Finally, Mr. Osman has experienced very difficult conditions while in pre-sentence custody. He has been in custody at the Toronto South Detention Centre since October 29, 2019, the entirety of the COVID-19 pandemic. He has had to endure the restrictive lockdown conditions put in place by prison authorities to prevent COVID-19 outbreaks. This includes the cancellation of rehabilitative programs and family visits, and more time isolated in his cell.

39Mr. Osman tested positive for COVID-19 twice, once in December 2020, and again in December 2021. This necessitated his complete isolation for several weeks both times.

40During COVID, prison conditions have been harsher, and thus more punitive. Detainees are forced to be in congregate settings and have no ability to control their surroundings or the people in them. The toll, psychological and physical, that the pandemic has taken on everyone is more acutely felt by detainees in these conditions and is a factor to consider in mitigation of sentence.

41In addition, records from the Toronto South Detention Centre indicate that he was subjected to lockdowns for 409 days, slightly more than half of the time he has spent in pre-sentence custody due to staff shortages at the detention centre. During lockdowns, inmates are given thirty minutes out of their cells to use the telephone, shower, and get fresh air in the yard. The ability to use the shower or telephone can be curtailed by the superintendent during a lockdown, if necessary, to meet institutional needs.

42Mr. Osman described the conditions at the Toronto South Detention Centre as, “so terrible,” like “Hell on Earth.” He said that he has had three and four days pass without a shower or the ability to use the phone to speak to his family or his lawyer.

43Sadly, understaffing at the Toronto South Detention Centre has been a longstanding problem that has resulted in prison conditions described by many judges as, “shocking, deplorable, oppressive, degrading, appalling and inexcusable:” see R. v. Persad 2020 ONSC 188, at para. 31. Despite repeated judicial condemnation, the problems persist. These conditions are beyond the restrictive conditions accounted for by R. v. Summers, and I have considered them in determining the appropriate sentence: R. v. Bristol, 2021 ONCA 599, at para. 11.

Determination of a Fit Sentence

44Mr. Osman’s crime requires the imposition of a sentence that gives effect to the principles of denunciation and deterrence. However, Mr. Osman’s good rehabilitative potential cannot be overlooked.

45In my view, the mandatory minimum sentence of five years does not adequately reflect the gravity of this offence and the aggravating circumstances that I have outlined. The seven-year sentence suggested by Mr. Akriotis does not adequately reflect Mr. Osman’s rehabilitative potential and the mitigating circumstance of the conditions of his pre-sentence custody.

46I have considered the gravity of the offence, the responsibility of Mr. Osman, and the principles of deterrence, both general and specific, denunciation, rehabilitation and restraint and have determined that the fit sentence for the discharge of the firearm offence (Count 2) is six years.

47Counsel jointly submit, and I agree, that the fit disposition on the breach of a weapons prohibition order charge (Count 5) is six months consecutive, for a total sentence of 6½ years.

Credit for Pre-Sentence Custody

48As I indicated, Mr. Osman has been in custody since October 29, 2019, for 823 days. Counsel agree that he is entitled to 1½ days of credit for each day he has been in pre-sentence detention in accordance with R. v. Summers. His sentence will therefore be reduced by 1,234½ days or 40½ months.

Ancillary Orders

49I also make the following ancillary orders:

1. an order pursuant to s. 487.05 of the Criminal Code that Mr. Osman provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database;

2. an order pursuant to s. 109 of the Criminal Code for life; and

3. an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Osman from communicating, directly or indirectly, with Aun Ali during the custodial portion of his sentence.

Disposition

50Mr. Osman, on Count 2, you are sentenced to a further 31½ months in custody, and on Count 5, you are sentenced to six months in custody to be served consecutively.

Corrick J.