Court File and Parties

Court File No.: CR-23-50000081 Date: 2023-12-07 Ontario Superior Court of Justice

Between: His Majesty the King – and – Rehan Habib

Counsel: Sara Samet, for the Crown Yonatan Eshetu, for Mr. Habib

Heard: June 20 & November 21, 2023

Before: R.F. Goldstein J.

1. Overview

[1] On June 20, 2023 Mr. Habib pleaded guilty to the following offences on the indictment:

• Count 2: Occupying a motor vehicle knowing that there was a prohibited firearm, contrary to s. 94(1) of the Criminal Code;

• Count 3: Possession of a prohibited firearm together with readily accessible ammunition contrary to s. 95(1) of the Criminal Code; and,

• Count 5: Possession of a weapon for a purpose dangerous to the public peace, contrary s. 88(1) of the Criminal Code.

[2] Mr. Habib now comes before the court for sentencing.

2. The Offence

[3] At 6:23 pm on September 3, 2020 Mr. Habib entered Ajwa Pizza at 25 Overlea Boulevard in Toronto. Overlea Boulevard is in the Thorncliffe Park area of Toronto. Mr. Habib lived in Durham Region at the time. The entire incident was captured on surveillance video. The surveillance video is acknowledged to be accurate within 1:08 (one minute, eight seconds) of Eastern Standard Time. I will use the timestamp on the video, acknowledging that it is off by about a minute.

• 6:22 pm: a dark Toyota Corolla automobile pulls up in front of Ajwa Pizza and parks.

• 6:23 pm: Mr. Habib enters Ajwa Pizza and stands near the entrance while an employee mops the floor. Mr. Ajwa is wearing a mask. The mask was presumably due to the COVID-19 pandemic. There is no allegation Mr. Habib deliberately hid his face or was planning on doing something illegal when he entered Ajwa Pizza.

• 6:24 pm: Mr. Habib goes to the counter and speaks to one of the employees.

• 6:25 pm: While at the counter, Mr. Habib appears to exchange words with one of the employees. The words do not appear friendly but there is no way to know what was said. After making gestures with his hands, Mr. Habib walks out of the Ajwa Pizza and walks back in about 10 seconds later.

• 6:27 pm: One of the employees gives Mr. Habib his food. Mr. Habib pays for it. Mr. Habib then makes gestures toward the other employee. They appear to be angry gestures. He has two fingers pointed toward this employee. The Agreed Statement of Facts states that it is a gesture “as if it was a gun”. Mr. Habib then leaves Ajwa Pizza very quickly and goes to his automobile.

• 6:27 pm: Mr. Habib can be seen retrieving something from the trunk of his automobile. According to the Agreed Statement of Facts he took a satchel out of the trunk. Mr. Habib can then be seen on the video coming back into the restaurant with the satchel in his hand. He had his hand inside the satchel. The first employee fled through the back of the store. Mr. Habib then hopped over the counter and followed him through the kitchen and out the back of the restaurant. He had a firearm in his right hand. The firearm can be very clearly seen on the video. A patron and the other employee followed him.

• 6:28 pm: Mr. Habib comes back into the restaurant through the back. He is clearly, again, holding the firearm in his right hand. He then goes back through the kitchen into the restaurant. The other employee and the patron follow. Mr. Habib puts the firearm back into the satchel and eventually leaves Ajwa Pizza.

[4] Shortly after the incident, at 6:33 pm, Mr. Habib called Daryosh Bahri. Unbeknownst to either man, Mr. Bahri was one of the targets of a Toronto Police wiretap investigation called Project Compound. The police recorded the conversation. Mr. Habib described what had occurred at the restaurant. He said that one of the employees had “pissed him off” so he went and grabbed his “stick”. The video clearly shows the altercation and clearly shows Mr. Habib doing exactly that: getting his gun from his car. He expressed concern to Mr. Bahri that the employee would go to the police. Mr. Bahri’s phone then died. They resumed the conversation at 6:44 pm. They continued to be concerned that the employee would go to the police. Mr. Habib then described what happened:

HABIB: …. I fucking walked in, I loaded up. I was about to blam his ass right in front of the fucking…

BAHRI: Oh, you wheeled it out?

HABIB: I wheeled it down when I cocked it back. I fucking… I was about to blow his brains out fam. He ran for his life out of the fucking thing. I went inside the wha… the store… with the stick in my hand.

[5] Mr. Habib then admitted to Mr. Bahri that he “just lost my head”. They then discussed hiding the firearm in case “he might get your crib raided”.

[6] The police obviously took a very significant interest in Mr. Habib as a result of this conversation. Police officers surveilled Mr. Habib to his home in Oshawa on two occasions. On September 5, 2020, two days after the incident, a justice of the peace issued a search warrant for Mr. Habib’s home and Toyota automobile. The police arrested him, and then executed the warrants. The found a loaded Smith and Wesson semi-automatic pistol in a satchel in the trunk. It was the same weapon that Mr. Habib had obtained from the trunk of his automobile on September 3, 2020. The magazine contained 8 rounds of ammunition. The firearm was a prohibited weapon. Mr. Habib did not have a firearms licence or authorization. He also did not have a registration certificate for the weapon.

3. Mr. Habib

[7] Mr. Habib is very a young man. He is 22 years old. He was 19 at the time of these offences. He was born in Afghanistan. His father left Afghanistan to establish himself in Canada. While he was gone his family experienced hunger and homelessness. The family was reunited when he was 8. The family came to Canada and joined his father. Although life was better in Canada, there were problems adjusting. They settled in the Thorncliffe Park area of Toronto, which was known for gangs and crime. Unfortunately, Mr. Habib began to associate with negative peers.

[8] Mr. Habib has had problems with schooling, but is now enrolled in Durham College studying business and finance where he is doing well.

[9] In 2020 Mr. Habib’s parents recognized that the Thorncliffe Park area was too dangerous for the family and moved to Oshawa. Mr. Habib was forthright with the probation officer that many of his close companions have run afoul of the law. Although there is no evidence that he was a member of a gang, it is clear that he had gang associations. That seems clear to me from the Project Compound wiretaps alone.

[10] Mr. Habib told the probation officer that he had a gun for protection. He said that he had experienced trauma in his past. He had seen friends and acquaintances shot. He felt he needed a gun to give him a sense of security. He did indicate, however, that he now realizes that he was wrong to believe that he needed a gun and understands that it is not a solution as it places himself and other members of the public at risk.

[11] I accept that Mr. Habib now recognizes that he does not need a gun for protection. I also accept that he now recognizes that it places himself and others in significant danger. I do not accept, however, that Mr. Habib carried the weapon because he felt he needed it for protection. Mr. Habib was living in Oshawa. If he did not want to be shot, he simply needed to stay away from his old neighbourhood. There was no reason whatsoever for him to be in the vicinity of Ajwa Pizza – unless, of course, his drug customers were in the area. As I will explain when I deal with aggravating and mitigating factors, Mr. Habib did not have the gun because he was concerned for his personal security, he had the gun as a tool of the drug trade. I accept that Mr. Habib was likely dealing at a very low level, but nonetheless it is still a fact that he had that weapon and I find he had it for no other purpose. In any event, as I have pointed out in several other cases, Mr. Habib did not need a gun for protection – rather, it is the rest of us who need protection from those who choose to carry guns.

4. The Victims

[12] A joint victim impact statement was signed by Ajmal Khalili and Ahmed Bilal, the owner and employee, respectively, of Ajwa Pizza. They were obviously traumatized by the incident. Several staff quit. Members of the community learned of the incident and became afraid to patronize the restaurant. As a result, there were some difficult times financially for the business. Mr. Bilal suffered from depression and anxiety and was unemployed for over a year.

5. Legal Parameters

[13] Sections 88(1), 94(1), and 95(1) of the Criminal Code each carry a maximum penalty of ten years imprisonment when prosecuted by indictment.

6. Positions of the Crown and Defense

[14] Ms. Samet, for the Crown, argues that Mr. Habib should be sentenced to five years in the penitentiary. This would be a global sentence reflecting all three offences and taking into account all the key principles of sentencing, including rehabilitation. Mr. Eshetu, for Mr. Habib, argues that Mr. Habib has taken meaningful and important steps towards rehabilitation. The Court, he argues, should allow him to continue those steps and sentence him to a conditional sentence of two years less a day followed by three years of probation.

7. Case Law

[15] I was referred to several cases involving the possession of handguns and their use in threatening situations. I need only refer to a few.

[16] In R. v. Samaniego, 2020 ONCA 439, the offender threatened a bouncer at a club, showed a firearm, and made gun-like threatening gestures with his fingers. Although a youthful first offender with much family support, the trial judge concluded that a sentence of four years was appropriate. The Court of Appeal upheld the sentence.

[17] In R. v. Mansingh, 2017 ONCA 68, a youthful first offender discarded a loaded firearm while being chased by police officers. The trial judge (me) sentenced him to 43 months, taking into account the dangerous circumstances of the chase and the discarding of the firearm. The Court of Appeal upheld the sentence.

[18] In R. v. Mahamet-Zene, 2018 ONSC 1050, [2018] O.J. No. 1003, the offender was a youthful first offender. He had possession of a gun in a public place. It was in a backpack hanging from a fence. The gun was loaded, with a round in the chamber, and an over-capacity magazine. The offender had a positive pre-sentence report, a supportive family, and had made significant progress while on bail. The trial judge sentenced the offender to 41 months in custody.

[19] In R. v. Smith, 2023 ONCA 620 the offender pleaded guilty to offences involving possession of a firearm, breaching a prohibition order, and possession of cocaine for the purposes of trafficking. A surveillance camera caught him pointing a handgun at a woman. The police later executed a search warrant and found a handgun, cash, and 137 grams of cocaine. The trial judge sentenced him to 4 years and 6 months, which was upheld by the Court of Appeal.

[20] R. v. Mohammed, 2017 ONCA 691 involved a youthful first offender. The offender pleaded guilty to possession of a handgun, dangerous operation of a motor vehicle, and possession of marijuana for the purpose of trafficking. He had tossed away the handgun during a high-speed pursuit with police, an extraordinarily dangerous activity. The Court of Appeal upheld a sentence of 5 ½ years.

8. Mitigating and Aggravating Factors

[21] There are many different mitigating and aggravating factors in this case.

[22] The chief mitigating factor is that Mr. Habib pleaded guilty. He therefore saved the state the resources required to bring him to trial. As well, no trial date was set in this Court. The matter proceeded on the resolution track from a reasonably early stage.

[23] Mr. Habib also took responsibility in a lengthy statement he made to the court. He expressed remorse for his actions and tried to give the Court a picture of the hard work he has done to improve himself and separate himself from bad influences.

[24] Although it is not strictly a mitigating factor, the pre-sentence report was generally favourable.

[25] Mr. Habib is a young first offender, which is also mitigating.

[26] It is mitigating that Mr. Habib has taken the time while he has been on bail to improve himself and reflect on what he was doing. He is currently working to complete his business diploma at Durham College. According to the pre-sentence report he chose to separate himself from the life he was living at the time of his arrest and separate himself from negative peers. I accept that is the case and I agree that it is mitigating.

[27] I understand that Mr. Habib was on a restrictive bail for some time. He was, however, able to have that bail varied and make progress in his life. I give some credit for time spent on house arrest, and I find that it is a mitigating factor that goes into the overall mix.

[28] Mr. Habib’s parents were in court for the sentencing proceedings. It is clear that he has family support, which is also mitigating.

[29] There are also some very serious aggravating factors.

[30] The Crown argues that it is an aggravating factor that Mr. Habib “racked” the weapon while he was chasing the employee through the store.

[31] To “rack” a semi-automatic pistol is to cock it, this putting a round in the chamber and making it ready to fire. In order to cock the weapon, the slide must be pulled back. In my view, that Mr. Habib did cock the weapon as he pursued the employee through the store. At timestamp 18:27:51 from Camera 06 Mr. Habib goes around a corner. The butt or handle of the weapon is in his right hand, and his left hand is overtop of the weapon, with his hand on the slide. It is clearer from the different angle of Camera 07. At timestamp 18:27:51 on Camera 07 Mr. Habib rounded the corner. The butt or handle of the weapon is in his right hand, and his left hand is on the slide. I am satisfied beyond a reasonable doubt based on my review of the video, which I watched many times, that Mr. Habib had his left hand on the weapon and pulled the slide back, thus cocking it and chambering a round. I infer, based on the totality of the circumstances, including the fact that when the weapon was seized from Mr. Habib there were rounds in the magazine, that Mr. Habib chambered a live round. There would be no point in “racking” or cocking the weapon if the magazine were empty.

[32] Even if the video were ambiguous, which it is not, I would still be satisfied beyond a reasonable doubt that Mr. Habib cocked the weapon based on his admission to Mr. Bahri in the wiretap that he “cocked it back”.

[33] Mr. Habib was involved in the drug trade. The Agreed Statement of Facts notes that Mr. Habib went to the house of one of his drug customers. It also notes that Mr. Habib went to meet another person at Mr. Bhari’s direction. Police officers observed that meeting. I am satisfied beyond a reasonable doubt that Mr. Habib had the firearm as a tool of the drug trade, notwithstanding that it appears he was involved at a low level. That is obviously an aggravating factor.

[34] The most important aggravating factor, however, is the nature of the offence. Mr. Habib took a loaded handgun, chambered a round, and chased an employee out of the restaurant simply because the employee “disrespected” him. Ordinarily, Mr. Habib’s childish response would have resulted in some harsh words, perhaps a request to leave the restaurant, perhaps some bitter feelings, and at worst an entirely pointless fistfight. It would have quickly been forgotten. Instead, Mr. Habib chose to engage in the most dangerous type of behaviour imaginable. Moreover, Mr. Habib actually considered shooting the employee, as he told Mr. Bahri. And indeed, shooting him over nothing. Everyone is lucky – and certainly Mr. Habib is extremely lucky –that it did not end in a tragedy.

9. Principles of Sentencing

[35] The fundamental principle of sentencing is that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.01. The key principles of sentencing in a case involving the possession of a handgun are general and specific deterrence. As the Court of Appeal said in Mansingh, supra, at para. 24:

The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, 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. 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.

[36] In my respectful view, deterrence and denunciation must take precedence in a case of this nature. This is particularly so where the offender has a gun and is involved in the drug trade. The wiretap transcripts filed on the sentencing hearing make it clear that he was involved in the drug trade although, as I have stated, at a low level. Having a gun under these circumstances requires a significant exemplary sentence: R. v. Nur, 2015 SCC 15. I acknowledge that Mr. Habib is a young man, who has taken steps towards rehabilitation, but that must play only a secondary role in the circumstances of this particular case.

10. Sentence Imposed

[37] Notwithstanding Mr. Eshetu’s very energetic and admirable efforts on behalf of his client, I find myself unable to agree that Mr. Habib should receive something less than a penitentiary sentence. Regrettably, a sentence of less than two years in these circumstances would simply be unfit. In my respectful view, it is only in exceptional circumstances that court should grant a sentence of less than two years for the possession of a prohibited handgun. A penitentiary sentence is usually called for, often in the range of three years even for a first offender, depending on the circumstances: R. v. Smith, supra, at paras. 6-7. The Court of Appeal stated in that case at para. 7:

The possession of a loaded handgun is a very serious offence. It is acknowledged that such conduct will normally attract a penitentiary term of imprisonment: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 at para. 151. If a penitentiary term of imprisonment cannot be excluded, then a conditional sentence should not be imposed: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 58.

[38] In my view, this case very clearly calls for a penitentiary sentence, thus eliminating the possibility of a conditional sentence. The five year sentence called for by the Crown is entirely within the range and is the sentence that I would have imposed but for Mr. Habib’s very important efforts at rehabilitation.

[39] Mr. Habib engaged in extraordinarily dangerous activity – chasing an employee through a restaurant with a loaded handgun, while cocking the gun with the anticipation of shooting him over absolutely nothing. Even if Mr. Habib did not intend to shoot him, and was only intent on intimidating or frightening the employee, it is still extraordinarily serious. We know however, from the wiretaps, that Mr. Habib did consider shooting and killing the employee.

[40] Handguns are a plague. So many courts have pointed this out so many times in so many cases that it almost feels routine. It should not be. Those who would carry these most dangerous weapons must understand that to do so will carry consequences. It is clear from the wiretaps that Mr. Habib and Mr. Bhari were well aware that merely having a loaded handgun could result in a stiff jail sentence. That message needs to be reinforced. Regrettably, a conditional sentence would send exactly the wrong message in these circumstances. I am aware that Mr. Habib has taken important steps towards rehabilitation. It is regrettable that he must serve a jail sentence, but anything less would do violence to the principles of denunciation and deterrence.

[41] Accordingly, when I balance the aggravating and mitigating factors, and consider the principles of sentencing, I find that a global sentence of four years is appropriate. I consider this a lenient sentence in the circumstances. The sentence will be apportioned as follows:

• Count 2: Occupying a motor vehicle knowing that there was a prohibited firearm, contrary to s. 94(1) of the Criminal Code: 3 years.

• Count 3: Possession of a prohibited firearm together with readily accessible ammunition contrary to s. 95(1) of the Criminal Code: 3 years, concurrent to count 2.

• Count 5: Possession of a weapon for a purpose dangerous to the public peace, contrary s. 88(1) of the Criminal Code: 1 year, consecutive to counts 2 and 3.

[42] There will be a DNA order, and a s. 109 order for life.

R.F. Goldstein J.

Released: December 7, 2023