COURT FILE NO.: CR-22-30000519-0000 DATE: 20230404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – OMAR MANSOUR

Counsel: Melissa Mandel, for the Crown Rupinjit Singh Bal, for Mr. Mansour

Heard: March 1, 15 and 23, 2023

R.F. GOLDSTEIN J.

1. Overview

[1] Omar Mansour pleaded guilty to one count of possession of a loaded prohibited firearm contrary to Section 95(1) of the Criminal Code and one count of breaching a bail condition, contrary to Section 145(5)(a) of the Criminal Code. He now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] Mr. Mansour and LaChante Williams have a child together. On October 16, 2021, the accused had been in a dating relationship with the Complainant for approximately 2 years. They did not reside together. On Saturday October 16, 2021 the two were in a cab heading to the Ms. Williams’ apartment when they got into an argument. When they arrived at Ms. William's apartment, Mr. Mansour went through her phone. Ms. Williams observed that Mr. Mansour possessed a firearm. As the argument continued, a round fell on the floor and rolled under the bed. Ms. Williams retrieved round.

[3] A short time later, Mr. Mansour fell asleep. Ms. Williams then called 911. Police officers arrived. Ms. Williams let them into the apartment. They found Mr. Mansour asleep. He was in possession of a loaded prohibited firearm and $4102.50 Canadian currency. Ms. Williams was uninjured.

[4] At the time Mr. Mansour was on bail. His bail order contained a condition that he was to be under house arrest and remain in his residence at all times except when in the presence of a surety or for certain other conditions (such as medical emergencies). Ms. Williams was not his surety. The bail order also contained a condition that he was not to possess any weapons.

Circumstances of the offender

[5] Mr. Mansour is now 22 years old. He is the youngest of five children. He has four older sisters. He comes from a family of immigrants. His father is an Ahmadi Muslim. He fled the persecution of members of that sect in Pakistan. The rest of the family followed. They struggled in this country, as many immigrant families do, but became part of the community. Mr. Mansour grew up in Toronto, but in his later years the family moved to Oshawa. The family was involved in Muslim charities and with their mosque. His sisters have done well. All four sisters have responsible jobs. He is the only child to have collided with the criminal justice system. He had not completed high school at the time of his arrest. Frankly, it is unclear whether he was doing anything productive when he was arrested. At the time of this offence he was on bail for drug trafficking charges. Those charges remain outstanding.

3. Legal Parameters

[6] Possession of a loaded prohibited firearm is punishable by up to ten years imprisonment. Breach of a bail condition is punishable by up to two years.

4. Positions of the Crown and Defense

[7] Ms. Mandel, for the Crown, argues that Mr. Mansour should receive a fairly standard exemplary sentence. He should be sentenced to three years for possession of the gun, and a further three months for breaching his bail condition. Thus, he should be sentenced to a global sentence of three years and three months, or 39 months.

[8] Mr. Bal, for Mr. Mansour, argues that Mr. Mansour should receive a sentence in the range of 18-24 months. When credit for harsh conditions of custody are factored in, he argues that Mr Mansour should receive a sentence of time served.

5. Case Law

[9] Ms. Mandel, for the Crown, relied on a previous case of mine, R. v. Johnson, 2022 ONSC 2688, where I recently summarized the cases that were placed before me at paras. 29-32. For the same of simplicity, I will simply repeat that summary:

The Crown relied on R. v. Nur, 2013 ONCA 677, upheld by the Supreme Court: R. v. Nur, 2015 SCC 15. As Doherty J.A. observed at para. 50 possession is criminal, "even if it is entirely untainted by any other unlawful activity." Nur was a young first offender. He pleaded guilty. He was sentenced to 40 months in prison.

In R. v. Marshall, 2015 ONCA 692 the accused was a young first offender. He was found guilty after trial of possession of a handgun. He candidly acknowledged his involvement in the drug trade. The Court of Appeal upheld a sentence of 3 1/2 years. In doing so, Cronk J.A. stated: There can be no doubt that this type of crime, in the circumstances described above, is an offence at the "true crime" end of the s. 95 spectrum of offences described by this court in Nur. Denunciation, deterrence and protection of the public are unquestionably the paramount principles of sentencing implicated for such a crime.

In R. v. Mansingh, 2017 ONCA 68 the offender was involved in low-level commercial marijuana trafficking in a neighbourhood plagued by guns and drugs. During the course of a police investigation the offender ran away and discarded an illegal handgun in a public place. Mr. Mansingh was a 26-year old first offender. The Court of Appeal upheld a 43 month sentence. (Note: I was the trial judge in that case.) In upholding the sentence, the Court stated:

... this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15 (S.C.C.). Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender. We observe, as did the trial judge, that the appellant not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child.

The Crown relied on other cases. I need not analyze them all, but will mention some: R. v. Harutyunyan, 2012 ONCA 637 (four year sentence upheld); R. v. Griffith, 2019 ONSC 358 (Global sentence of six years for possession of a firearm, breaching a firearms prohibition order, and possession of cocaine for the purpose of trafficking); R. v. Dehaney, 2012 ONSC 3014 (global sentence of 7 years for possession of a firearm and drug trafficking in association with a criminal gang).

[10] Mr. Bal, for Mr. Mansour, relied on a series of cases.

[11] In R. v. Lewis, 2022 ONSC 1260, the offender pleaded guilty to possession of a loaded prohibited weapon (a revolver with 2 rounds of ammunition) and simple possession of cocaine. The police executed a search warrant and seized a safe containing the firearm. The police also found 49 grams of cocaine – not an amount consistent with personal use, but Boswell J. accepted that the simple possession was part of a negotiated plea. The offender was a young first offender with an unrelated criminal record. He spent time at the Toronto East Detention Centre under harsh conditions, although there was no specific evidence about the effect on him. He also spent time on house arrest. Boswell J. sentenced Mr. Lewis to two years on the firearm, and four months concurrent for the cocaine. He credited Mr. Lewis with a modest amount for time spent in custody and time on house arrest. Mr. Lewis was a young Black man with a mother who had serious physical, emotional and mental health problems. Since, at the end of the day, Mr. Lewis had only six months left to serve, Boswell J. sentenced him to a conditional sentence: R. v. Morris, 2021 ONCA 680 at para. 180.

[12] In R. v. Hassan, 2017 ONSC 4570, a 9mm handgun hidden in the offender’s pants slipped out. He was arrested. The police found 6 9mm rounds of ammunition in his pocket. The offender had had a difficult upbringing with an unstable family life and some physical and mental health problems. The offender had made great strides towards rehabilitation, as noted by his probation officer, municipal counsellor, arrested officer, and others. He had a minor criminal record. Backhouse J. said that in her experience she had never seen such a dramatic and sustained effort at rehabilitation by the accused and by others on his behalf. Backhouse J. imposed a conditional sentence after accounting for time spent in custody and time spent on a strict house arrest.

[13] In R. v. Marsan, 2020 ONCJ 638, the offender was driving a rental car when he collided with an unmarked police vehicle. The offender then lied to the police about his identity, claiming to be his twin brother. The rental car was searched for unrelated reasons. Mr. Marsan had a satchel in the trunk. The satchel contained a handgun and an overcapacity magazine with 13 rounds. Mr. Marsan pleaded guilty to the possession of the weapon. He had rather unusual criminal antecedents: he was quite young, only 20 at the time of the offences, but had started successful businesses. Unfortunately, he had suffered something of a breakdown due to overwork and exhaustion. He developed a substance abuse problem. Pringle J. found that the plea was quite meaningful, as there were triable issues in the case but Mr. Marsan wanted to address his issues, take responsibility, and move forward. While on bail he volunteered and too counselling for substance abuse. Because of Mr. Marsan’s early, remorseful plea Pringle J. sentenced him to 18 months – in the midst of the Covid-19 pandemic – and three years probation. She specifically refused to impose a conditional sentence. She found that a conditional sentence would not meet the objectives of denunciation and deterrence in the circumstances of the case.

6. Mitigating and Aggravating Factors

[14] There are important mitigating factors in this case. Mr. Mansour pleaded guilty. He apologized and expressed remorse for his poor decisions and bad choices. He comes before the court as a very youthful first offender. He has family support – his sisters all wrote letters of support. He has a part-time job waiting for him when he is released. He has been involved in charity and community work and remains very connected to his community and his mosque.

[15] Mr. Mansour has described harsh conditions of custody. Mr. Bal has suggested that he receive a mathematical credit for those harsh conditions. The Court of Appeal has signalled that this approach, while not necessarily wrong, is not the preferred method. Rather, harsh conditions of custody should be dealt with as a mitigating factor such that the overall sentence is a fit one: R. v. Duncan, 2015 ONCA 928; R. v. Marshall, 2021 ONCA 344.

[16] Although Mr. Mansour has encountered harsh conditions in custody, it is to his credit that he has used the time productively. He described his accomplishments and his plan. Although it was challenging, he completed high school. He also took a number of Ministry courses related to life skills, anger management, and maintaining healthy relationships. He has applied to college to take business courses, and is on the waitlist for Centennial college. He has a very specific plan to start a business. He plans to resume involvement with his community and his mosque. He hopes to become a role model for his child.

[17] There are important aggravating factors in this case. The very nature of the offence is aggravating – possession of a loaded handgun is a serious crime in and of itself. Moreover, Mr. Mansour was carrying it in public. He was on his way to Ms. Williams’ residence with it. There is no evidence he stashed it at her place. It is an obvious inference from the agreed statement of facts that he had the handgun with him when he arrived at her residence. Carrying a loaded firearm around in public is extremely aggravating. As well, I find it aggravating that a round was somehow dropped. That shows a degree of carelessness in handling a dangerous weapon. That undoubtedly reflects a lack of knowledge of how to use and handle the weapon safely. It is very reckless to carry illegal firearms around, possibly thinking that these weapons are cool, or that these weapons are necessary to feel empowered, or that these weapons are necessary for protection. Simply having a loaded firearm in a public place makes those who carry them a danger to themselves and to others. It is a dangerous act of foolishness. Finally, although there is no evidence that Mr. Mansour used the firearm to intimidate Ms. Williams or threaten her, it is troubling and unsettling that he had the firearm with him, and Ms. Williams observed it in the course of a domestic dispute. Ms. Williams must have had some concerns, since she waited until Mr. Mansour was asleep before she called the police. Although it is not an aggravating factor, a court cannot help but be concerned – these kinds of disputes can and sometimes do escalate into something very tragic.

7. Principles of Sentencing

[18] The fundamental sentencing principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. When it comes to the possession of dangerous firearms, the courts emphasize denunciation and deterrence. The objective of s. 95 of the Criminal Code is the deterrence and denunciation of gun-related criminal activity: R. v. Nur, 2013 ONCA 677 at para. 204. As Doherty J.A. stated at para. 206 of that case:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

[19] The Supreme Court of Canada endorsed Doherty J.A.’s view: R. v. Nur, 2015 SCC 15. At para. 137 of that case, McLachlin C.J.C. stated:

Courts have repeatedly emphasized the inherent danger associated with these types of firearms. In R. v. Elliston, 2010 ONSC 6492, 225 C.R.R. (2d) 109 (Ont. S.C.J.), Aston J. rejected the argument that simple possession of a prohibited or restricted firearm, absent a harmful outcome, is insufficient to warrant an exemplary sentence:

The applicant submits that there are no actual adverse consequences that necessarily flow from the criminal conduct captured by s. 95 because the defined offence is simply the possession of the firearm as opposed to its actual use. It is true that adverse consequences do not necessarily flow from possession of a loaded handgun, but sometimes they do. And, because the risk is so grave that people will be seriously injured or killed, even when discharging the gun is not intentional, the gravity of the offence of simply possessing the weapon should not be underestimated....

8. Ancillary Orders

[20] There will be a s. 109 order for ten years. There will also be a DNA order, as possession of a loaded prohibited firearm is a secondary designated offence.

9. Sentence Imposed

[21] In Nur, the Supreme Court of Canada confirmed that for the vast majority of offenders, a sentence in the range of three years remains appropriate. In her discussion of gross disproportionality, McLachlin C.J.C. stated at para. 82 of that case:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. ... [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public" (para. 51). At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

[22] Mr. Mansour stands squarely in the middle of this range. It is aggravating that he was carrying the weapon around in public. He was on bail for drug trafficking offences. There is no evidence, however, that at that time and in that place he was carrying a loaded prohibited firearm as a tool of the drug trade. Mr. Mansour was in a domestic dispute with an intimate partner. It would be extremely aggravating if he flashed the firearm at her as a means of implied violence or as a threat. I am not satisfied beyond a reasonable doubt that he did that. At the same time, Mr. Mansour was hardly an otherwise law-abiding gun owner who simply fell afoul of the regulations. His possession of the loaded prohibited firearm was a true crime as described in Nur.

[23] In sentencing Mr. Mansour, I take into account the aggravating and mitigating factors. I take into account his youth, his guilty plea, and his status as a first offender who has expressed remorse. I listened carefully to Mr. Mansour when he apologized for his actions, described the challenges he faced in custody and the things he accomplished, and his plan going forward. As a sentencing judge, I have often observed that there are three types of people who describe to the court how they plan to move forward, become productive citizens, and stay out of trouble with the law. There are those who say it and mean it and will manage to stay out of trouble; there are those who say it and mean it but will not be able to help themselves, despite good intentions, and will still get into trouble; and there are those who say all the right things and are completely insincere about it. I accept that Mr. Mansour, in describing his plan for moving forward, is sincere when he says he plans to make better choices and lead a pro-social life. That is to his credit. It will be up to him, of course, to keep on the right path towards a better, more productive life. I certainly accept that he is sincere when he says that he does not want to return to a place like the Toronto East Detention Centre. The principles of denunciation and deterrence generally play a larger role in cases involving loaded prohibited firearms, but in this case I think that Mr. Mansour has prospects for rehabilitation and that principle must also play an important role in sentencing him.

[24] In my view, the appropriate global sentence before credit for harsh conditions of custody would have been in the range of three years or 36 months. That accounts for the principles of general and specific deterrence, denunciation, and rehabilitation. I think without applying the principle of rehabilitation, he would have been subject to a much higher penalty, given that he had the firearm out in public, wilfully breached his house arrest condition, and was on bail for drug trafficking. Those facts would have taken him closer to the 43-month sentence in Mansingh. This case is distinguishable from Lewis, where the offender had the firearm locked in a safe in his home. It also distinguishable from Hassan, where the offender came from an entirely dysfunctional home and had made exceptional strides to rehabilitate himself while on bail.

[25] Mr. Mansour has now been in custody for 530 days, or just under 18 months. Giving him statutory credit at 1.5:1 works out to 795 days, or 26.5 months. That leaves 9.5 months left to serve of the 36 month sentence, without credit for harsh conditions of custody.

[26] Mr. Mansour described some of those conditions. The Covid-19 pandemic, while certainly less serious than it was, is still a factor. Mr. Mansour had Covid-19 while in custody. He was subject to lockdowns. I was provided with the lockdown summary from the Toronto East Detention Centre. Mr. Mansour was triple-bunked for 35 nights and spent 11 of those nights on a mattress on the floor. He was subject to the mandatory 14 day quarantine period when he first went into custody. His unit was under droplet protection for ten days when an inmate on his range caught covid. He was also placed in a “SAFER Level” maximum unit for a period of just over 40 days. During that time he was locked down on 12 occasions. During his entire time at Toronto East, there were lockdowns on 149 occasions, although it must be said that all but 12 of these lockdowns were for periods of 3 hours or less. Only 12 were full day lockdowns were inmates had limited or no access to showers or yard time.

[27] Mr. Mansour also described some of the frightening violence while in custody. There were three stabbings during his time at the Toronto East, including one on his range.

[28] Overall, when I consider harsh conditions of custody, I would reduce the time left to serve by a further 5.5 months. That would leave him with a further four months left to serve. It must be remembered that Mr. Mansour was in possession of a loaded prohibited firearm, in public, while on bail for drug trafficking, and while under house arrest. In my respectful view, anything less would render the sentence unfit. As Marshall warns, the calculation for time credited must not devour the entire sentence such that it becomes unfit.

[29] Because the ultimate sentence is less than two years, I must consider whether to impose a conditional sentence. A conditional sentence is available. No offences are excluded from consideration unless there is a mandatory minimum. In my view, however, a conditional sentence simply would not sufficiently denounce the conduct in this case: as I have pointed out, being in a public place with a loaded prohibited weapon while on bail; indeed, while under house arrest.

[30] Accordingly, Mr. Mansour is sentenced to three years or 36 months globally, with credit for 32 months. That leaves Mr. Mansour with four months left to serve. For the purposes of sentence calculation, the sentence will be served as follows:

• Count 1: possession of a loaded prohibited firearm, two years and ten months, or 34 months with credit for time served of 32 months, leaving two months left to serve.
• Count 10: breach of recognizance, two months consecutive to Count 1.

[31] Mr. Mansour will also be put on probation for three years. The terms are as follows, in addition to the statutory terms set out by the Criminal Code:

• Keep the peace and be of good behaviour;
• Report to a probation officer within three business days of release from custody and thereafter as required;
• Take counselling as directed by the probation officer and sign releases as required to permit the probation officer to monitor progress;
• Live at an address approved of by the probation officer and notify the probation officer of any change of address within three business days;
• Possess no weapons as defined by the Criminal Code;
• Have no contact, directly or indirectly, with LaChante Williams except through either family court proceedings, or with the advance written permission of LaChante Williams, such permission to be provided to the probation officer in advance;
• Not to within 200 hundred meters of LaChante Williams, her residence, or the address of 228 Galloway Road.

R.F. Goldstein J. Released: April 4, 2023

COURT FILE NO.: CR-22-30000519-0000 DATE: 20230404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – OMAR MANSOUR

REASONS FOR JUDGMENT R.F. Goldstein J.