Court File and Parties

COURT FILE NO.: CR-22-10000089-0000 DATE: 2023-04-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHAHABELDIN MOHAMED

COUNSEL: A. Kwan, for the Crown S. Foda, for Mr. Mohamed

HEARD: April 6, 2023

Reasons for Sentence

SCHRECK J.:

[1] This case has an unusual history. Following a judge-alone trial, Shahabeldin Mohamed was found guilty of being an accessory after the fact to robbery, dangerous operation of a conveyance and failure to stop when pursued by police. Prior to sentencing, he changed counsel and brought an application to re-open the proceedings. Ultimately, the application was abandoned when counsel for Mr. Mohamed and the Crown agreed on a proposed resolution in which the Crown would enter a stay of proceedings pursuant to s. 579(1) of the Criminal Code on all charges except for the dangerous operation count, for which counsel would have a joint submission as to the appropriate sentence. Counsel did not agree, however as to whether certain ancillary orders should be made.

[2] Four issues arise as a result of counsel’s proposal:

(1) can the Crown stay charges pursuant to s. 579(1) after a finding of guilt has been made but before sentence? (2) Should the court accede to the joint submission? (3) Is a DNA order appropriate on a conviction for dangerous operation of a conveyance, a secondary designated offence, in the circumstances of this case? (4) Is the offence in this case one in which “violence was used, threatened or attempted” within the meaning of s. 109(1)(a) of the Criminal Code so as to permit the imposition of a firearms prohibition?

For the reasons that follow, I would answer the first two questions in the affirmative and the remaining questions in the negative.

I. Evidence

A. The Offence

[3] The evidence at trial is summarized in my reasons for judgment, reported as R. v. Hadi, 2022 ONSC 2903. Briefly, on May 8, 2019, a number of police officers arrived at an auto body shop on Crockford Boulevard in Toronto to effect a “take down” of a number of suspects who had been the subjects of an ongoing investigation into a jewelry store robbery. Mr. Mohamed had left the shop driving a Range Rover just before the police arrived. As the police approached, he made a U-turn and began to drive southbound at a high rate of speed. He drove in the northbound lane and narrowly missed a police vehicle. Four unmarked police cars followed the Range Rover and tried to contain it. The Range Rover hit two of the police vehicles and then a concrete barrier. After hitting the barrier, the Range Rover became airborne and entered an intersection, where it collided with another vehicle. Mr. Mohammed exited the vehicle and began to run away, but was apprehended by the police.

B. History of the Proceedings

[4] Mr. Mohammed was tried with three other people on a 12-count indictment in which he was named in five of the counts. On May 13, 2022, he was found not guilty of conspiracy to commit robbery (Count 1) and robbery (Count 2) and guilty of accessory after the fact to robbery (Count 10), dangerous operation of a conveyance (Count 11) and failure to stop when pursued by the police (Count 12).

[5] At his trial, Mr. Mohamed brought an application to stay the proceedings as a remedy for violations of ss. 7, 10(a) and 10(b) of the Charter. In reasons reported as R. v. Mohamed, 2022 ONSC 3029, I found that there was no breach of s. 7 or s. 10(a). Although I found a s. 10(b) violation, I held that a stay of proceedings was not an appropriate remedy and that I would entertain submissions as to whether the breach warranted a sentence reduction.

[6] Following the trial, Mr. Mohamed discharged his counsel and retained new counsel who filed an application to re-open the proceedings on the basis that Mr. Mohamed had been denied the effective assistance of counsel at his trial. The application included an affidavit from Mr. Mohamed and a report from a psychiatrist.

[7] If the application was successful, Mr. Mohamed would have adduced evidence that he had leased space at the auto body shop, where he operated an automobile repair business, and that was why he was there when the police arrived. He also wished to adduce evidence that he had been the victim of a shooting a few months prior to his arrest, and the reason he fled from the police was because he did not know they were police officers and was afraid that somebody was trying to harm him. None of this evidence was adduced at the trial.

[8] After the application was filed, counsel advised the court that they had reached an agreement and proposed a resolution in which the Crown would stay Counts 10 and 12 and there would be a joint submission with respect to Count 10.

C. Mr. Mohamed’s Background

[9] Mr. Mohamed is 27 years old. He is a Canadian citizen and grew up in Canada. He completed high school and has a steady employment history. He has a close relationship with his family, who are supportive of him.

[10] Mr. Mohamed has no prior criminal record. At the time of the offence, he was subject to a driving prohibition.

[11] On January 5, 2019, somebody fired several shots at Mr. Mohamed. One of them narrowly missed him, grazing his head. Mr. Mohamed managed to get away from his assailant in a car. He later reported the incident to the police, but nobody was ever apprehended.

[12] Mr. Mohamed was subject to strict bail conditions amounting to house arrest from the time of his arrest until his sentencing, a period of approximately four years.

II. Analysis

A. Can the Crown Stay Charges After Conviction?

[13] As noted, the Crown wishes to stay Counts 10 and 12 pursuant to s. 579(1) of the Criminal Code, which provides as follows:

579 (1) The Attorney General or counsel instructed by the Attorney General for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by the Attorney General’s or counsel’s direction, as the case may be, and the entry shall then be made, at which time the proceedings shall be stayed accordingly and any undertaking or release order relating to the proceedings is vacated.

The issue that arises in this case involves the meaning of the term “before judgment.” Does “judgment” refer to a verdict, or does it refer to the final disposition of the proceedings?

[14] Section 579(1) gives the Attorney General a statutory administrative discretion over which he or she has complete control, subject to the abuse of process doctrine: R. v. Martin, 2016 ONCA 840, 134 O.R. (3d) 781, at para. 38; R. v. Beaudry, [1967] 1 C.C.C. 272 (B.C.C.A.); Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at paras. 45-49. However, the power can only be exercised “before judgment.”

[15] The term “judgment” is not defined in the Criminal Code, unlike, for example, the Supreme Court Act, R.S.C. 1985, c. S-26, s. 2 of which contains the following definition:

judgment, when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof, and when used with reference to the Supreme Court, includes any judgment or order of that Court;

This definition is obviously far too broad to apply to s. 579(1) of the Criminal Code, as it includes interlocutory decisions made in the course of a trial, such as a publication ban or an order for the production of records: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 861; A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, at para. 25. The Attorney General obviously has the right to stay proceedings after such decisions:

[16] Where, as in this case, the meaning of a term in a legislative provision is ambiguous, it must be interpreted in the context of the legislative scheme as a whole with regard to the purpose of the legislation: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Walsh, 2021 ONCA 43, 154 O.R. (3d) 263, at para. 140. The power of the Attorney General to stay proceedings is one of the core elements of prosecutorial discretion, a concept described in Krieger v. Law Society of Alberta, at paras. 43-47:

“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it.

[17] The Attorney General has the power to initiate a prosecution when it is in the public interest to do so, and likewise has the power to terminate a prosecution when it is in the public interest to do so. The latter power comes from s. 579(1) of the Code, which, when exercised, has the effect that “[t]he position of the accused as against the state is the same as if he had never been charged”: R. v. Smith (1992), 79 C.C.C. (3d) 70 (B.C.C.A.), at p. 80; R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.), at para. 41; R. v. Martin, 2016 ONCA 840, 134 O.R. (3d) 781, at para. 43.

[18] Section 579(1) must be interpreted in a manner consistent with the broad discretion the Attorney General enjoys with respect to the commencement and termination of prosecutions. There is no reason why this discretion should be curtailed after a conviction has been registered. In rare cases, there may be circumstances where it is inappropriate to impose a sentence, notwithstanding that there has been a conviction. For example, it is well established that a trial judge has the power to vacate a finding of guilt in a judge-alone trial if it is in the interests of justice to do so, provided he or she is not functus officio: R. v. Lessard (1976), 30 C.C.C. (2d) 80 (Ont. C.A.); R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12.

[19] In my view, the power of the Attorney General to stay proceedings, like the power of a trial judge to reopen, exists as long as the court is not functus officio. The same conclusion was reached in R. v. Maxemiuk (1994), 122 Sask. R. 223 (Q.B.), at paras. 12-13.

[20] For these reasons, the Crown has the right to stay Counts 10 and 12.

B. Should the Court Accede to the Joint Submission?

[21] The parties jointly submit that the appropriate sentence for the dangerous driving conviction is a conditional sentence of 16 months. For the first four months, he would be subject to house arrest, and for the next four months, he would be subject to a curfew. This is to be following 12 months of probation. As well, Mr. Mohamed is to be prohibited from operating a motor vehicle for 12 months. In coming to this position, counsel have considered the fact that Mr. Mohamed is a youthful first offender and has been subject to strict bail conditions for four years.

[22] As was explained by Moldaver J. in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 32, joint submissions as to sentence should only be rejected if the proposed sentence would “bring the administration of justice into disrepute or is otherwise contrary to the public interest.” He elaborated on this in the following terms (at para. 34):

… [A] joint submission should not be rejected lightly …. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold - and for good reason, as I shall explain.

[23] Unlike in most cases where there is a joint submission, there was no guilty plea in this case. However, Mr. Mohamed had brought an application to re-open the trial and have all of his convictions set aside, and the agreement reached by counsel obviated the need for the application to be heard. In these circumstances, the considerations in Anthony-Cook continue to apply. In any event, where while there is conflicting authority on whether the Anthony-Cook test applies to joint submissions following a trial, most courts that have considered the issue have concluded that it does: R. v. Baptiste, 2021 QCCA 1064, at paras. 67-74; R. v. Obodzinski, 2021 QCCA 1395, at para. 46; R. v. Stewart, 2017 ONSC 4843, at para. 72; R. v. Spence, 2017 ONSC 4749, at para. 52; Cf. R. v. Nelson, 2017 BCSC 1050, at para. 19, aff’d 2018 BCCA 161; R. v. Sauverwald, 2019 ABQB 482, 1 Alta. L.R. (7th) 13, at paras. 123-124.

[24] For these reasons, I accede to the joint submission and sentence Mr. Mohammed to a 16-month conditional sentence on the terms agreed upon by counsel. Thereafter, he will be placed on probation for 12 months on the agreed-upon terms. He will also be prohibited from driving for a period of 12-month.

C. Is a DNA Order Appropriate?

[25] According to s. 487.04 of the Code, dangerous driving is a secondary designated offence, so the making of a DNA order is discretionary, according to s. 487.051(3)(b). In exercising my discretion, the section requires me to consider the nature of the offence, the circumstances surrounding its commission and the impact the order would have on the person’s privacy and security of the person.

[26] I decline to make the order for the reasons explained by Derrick J. (as she then was) in R. v. Sullivan, 2015 NSPC 40, 362 N.S.R. (2d) 273), at paras. 59-62:

The Supreme Court of Canada in R. v. R.C., 2005 SCC 61, [2005] S.C.J. No. 62 has held that “Parliament has...drawn a sharp distinction between “primary” and “secondary” designated offences, which are defined in s. 487.04 of the Criminal Code. Where the offender is convicted of a secondary designated offence, the burden is on the Crown to show that an order would be in the best interests of the administration of justice.” (paragraph 20)

As I noted earlier, Mr. Sullivan has no criminal record. He is a person of good character who has been regularly employed and complied with his release conditions. There has been no suggestion that Mr. Sullivan is likely to have further conflict with the law. Indeed, the Crown expressly stated that specific deterrence was not a consideration in this case. As I stated in R. v. Shields, 2014 NSPC 69, [2014] N.S.J. No. 473:

The objectives of the DNA provisions - the identification of persons alleged to have committed designated offences, deterring potential repeat offenders, detecting serial offenders, streamlining investigations, solving “cold cases”, and protecting the innocent by eliminating suspects and exonerating the wrongly convicted - could be used to ground the argument that every offender’s DNA should be collected. Parliament has expressly allowed for judicial discretion and crafted very specific criteria in the case of secondary designated offences. There is nothing in the legislation stipulating that only exceptional cases of secondary designated offences should be exempt from DNA sampling...

The Crown has not shown me how it is in the best interests of the administration of justice to collect Mr. Sullivan’s DNA and intrude upon his constitutionally protected privacy and security rights. As noted by the Supreme Court of Canada in R.C., a DNA order is.:

...undoubtedly a serious consequence of conviction. This is evident from the comprehensive procedural protections that are woven into the scheme of the DNA databank. The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject's right to personal and informational privacy. (paragraph 39)

I decline to make a DNA order in this case.

D. Is a Firearms Prohibition Order Available?

[27] The Crown seeks a firearms prohibition pursuant to s. 109 of the Code. Section 109(1)(a) provides that such an order is mandatory in relation to “an offence …. in the commission of which violence against a person was used, threatened or attempted” and where the offence is punishable by imprisonment for 10 years or more. [1] Counsel for Mr. Mohamed submits that this not a case in which violence was used, threatened or attempted and it is therefor not open to me to make the order.

[28] In R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, the Supreme Court of Canada considered the meaning of the term “violence” in the context of the dangerous offender provisions of the Criminal Code. Those provision only apply to individuals convicted of a “serious personal injury offence,” which is defined in s. 752 of the Code as an offence involving “the use or attempted use of violence against another person” as well as “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person.” It also includes certain enumerated sexual offences.

[29] As the Court noted, there is a conflict between harm-based definitions of violence, which focus on “acts by which a person causes, attempts to cause or threatens to cause harm,” and force-based definitions, which focus on the physical nature of the act: Steele, at para. 43. After reviewing the relevant caselaw, the Court concluded as follows (at para. 51):

This brief survey of judicial interpretations of the term “violence” suggests that the focus is on the harm caused, attempted or threatened rather than on the force that was applied. I do not suggest that the definition of violence must be a harm-based one in every case. Context will be paramount. As I mention below (see para. 65), there may be situations in which the presumption of consistent expression is clearly rebutted by other principles of interpretation and, as a result, the intended meaning of violence may vary between statutes and even, in some circumstances, within them: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 222. However, unless the context or the purpose of the statute suggests a different approach, the prevailing definition of “violence” is a harm-based one that encompasses acts by which a person causes, attempts to cause or threatens to cause harm.

There is nothing in s. 109(1)(a) of the Code which suggests that a different approach is required. As a result, I conclude that the term “violence” refers to acts by a which a person causes, attempts to cause or threatens to cause harm to another person. Based on this, whether or not s. 109(1)(a) applies to a conviction for dangerous driving will depend on the facts of the case.

[30] A firearms prohibition was imposed in relation to a conviction for dangerous driving causing bodily harm in R. v. Desjarlais, 2004 ABPC 26, 351 A.R. 26, where the accused had rammed his vehicle into a police car, causing injuries to an officer. At para. 32, the court stated:

While it is unusual for such an order to be made in a conviction of this nature in my view the circumstances fit within s. 109(1). Hence, a mandatory firearms order is required.

[31] In R. v. Garson, 2014 ONSC 978, 69 M.V.R. (6th) 107, a firearm prohibition was imposed in relation to a conviction for dangerous driving causing bodily harm. At para. 10, the court concluded, without analysis, that the offence was one in which violence against a person was used.

[32] No firearms prohibition was imposed in R. v. Butterfield, 2012 SKPC 11, 389 Sask. R. 31, a case where the accused had been convicted of dangerous operation of an aircraft causing death. He had agreed to fly low to the ground at the request of a photographer who wished to photograph the plane. A gust of wind blew the plane off course such that it’s wing hit the photographer, causing fatal injuries. The court declined to make a s. 109 order (at para. 44):

Finally, counsel jointly submitted that a firearm prohibition order under section 109 is mandatory. With the greatest of respect, I disagree. In this case, the offence committed by Mr. Butterfield is a serious personal injury offence as defined in section 752 of the Criminal Code because it involved conduct endangering the life of another person, not because it was a violent offence. Dangerous operation of an aircraft causing death it is not by definition an offence involving the use or attempted use of violence against another person, and the circumstances of this case did not involve violence or attempted violence in the commission of the offence. For the purposes of sections 109 and 110, “violence” involves some directed or intentional application, or threat of application, of force against another person. This case did not. Nor did it involve the commission of any of the offences listed in subparagraphs (b), (c), or (d) of section 109. In my view, a firearms prohibition is neither mandatory under section 109, nor within my discretion under section 110 in the circumstances of this case. Accordingly, I decline to make such an order.

[33] In R. c. Leblanc, 2013 QCCS 753, a case of dangerous driving causing bodily harm, the accused had caused a collision while attempting to overtake other vehicles in an area where doing so was prohibited. The court concluded that a firearms prohibition could not be imposed (at para. 45):

L’infraction est celle de conduite dangereuse. La conséquence des lésions corporelles à une autre personne en augmente la gravité objective. L’infraction de conduite dangereuse peut être commise, comme en l’espèce, sans l’usage de violence. La façon de conduire de l'accusé a été, dans les circonstances, objectivement dangereuse pour le public, à risque d’engendrer un dommage ou un préjudice. Une personne raisonnable aurait prévu les risques et pris les mesures pour l’éviter. L’omission de l’accusé de prévoir le risque et de prendre les mesures pour l’éviter a constitué un écart marqué par rapport à la norme de diligence qu’aurait respectée une personne raisonnable dans la même situation. Le risque s’est réalisé. L’impact avec la voiture de la victime a été violent. Cette dernière a subi des lésions corporelles importantes. La conduite dangereuse en soi n’a toutefois pas été commise avec usage de violence contre autrui. L’article 109(1)(a) ne trouve pas application en l’espèce.

[34] In this case, Mr. Mohamed was convicted of dangerous driving simpliciter. There is no evidence that his driving resulted in any injuries to anyone. [2] There is also no evidence that Mr. Mohamed was attempting to cause any injury to any person. Based on this, I am unable to conclude that this was an offence “in the commission of which violence against a person was used, threatened or attempted” and a s. 109 order is unavailable.

III. Disposition

[35] Mr. Mohamed is sentenced to a term of imprisonment for 16 months, to be served in the community pursuant to a conditional sentence order on the terms agreed to by counsel. Thereafter, he is to be subject to a probation order for 12 months on the terms agreed to by counsel.

[36] There will be an order pursuant to s. 320.24(4) of the Criminal Code prohibiting Mr. Mohammed from operating a motor vehicle for a period of one year.

[37] There will be no DNA order or firearms prohibition.

[38] I would like to commend both counsel for the professional, cooperative and fair manner in which they resolved most of the issues arising in this case.

Justice P.A. Schreck

Released: April 18, 2023

Footnotes

[1] Counsel mistakenly thought that s. 110 applies in this case. However, s. 320.19(5)(a) provides that dangerous driving contrary to s. 320.13(1) is punishable by imprisonment for 10 years where the Crown proceeds by indictment, so it is s. 109 that applies and the order, if applicable, is mandatory and not discretionary. However, both sections apply only where “violence against a person was used, threatened or attempted” (in addition to other circumstances), so the issue that must be determined is the same.

[2] There was evidence that one person was taken to the hospital. However, there was no evidence as to the reason he was taken there, and there is no basis to conclude that it was because of an injury resulting from Mr. Mohamed’s driving rather than another medical condition or simply as a precaution.