COURT FILE NO.: CR-21-10000320-0000
DATE: 20230202
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
NAOD TSEGAZAB
Sean Hickey for the Crown
Dirk Derstine and Carimé Boehr for Mr. Tsegazab
HEARD: January 13, 2023
REASONS FOR SENTENCE
Corrick J.
Overview
[1] Mr. Tsegazab was tried before me without a jury on charges of second-degree murder and unauthorized possession of a loaded firearm. For reasons delivered on December 19, 2022,[^1] I acquitted Mr. Tsegazab of murder and found him guilty of unlawful possession of a loaded firearm, contrary to s. 95(1) of the Criminal Code. I heard sentencing submissions on January 13, 2023, and reserved my decision until today.
Facts
[2] On February 12, 2019, a gunfight broke out at approximately 2:45 p.m. between Mr. Tsegazab and Dean Howlett in a stairwell of a residential apartment building at 4110 Lawrence Avenue East in Toronto. Mr. Howlett fired ten rounds. Mr. Tsegazab fired five rounds, four of which struck Mr. Howlett, killing him.
[3] The reason for the gunfight is unknown. I do not know what, if any, relationship there was between Mr. Tsegazab and Mr. Howlett. I do not know why they went into the stairwell in the first place. They had met by chance in the elevator lobby of the building 20 minutes before the shooting began.
[4] Mr. Tsegazab shot Mr. Howlett with a 9 mm Taurus semi-automatic handgun. It was not recovered at the scene, but was seized by the OPP near Midland, Ontario eight months later on October 27, 2019.
[5] Mr. Tsegazab admitted at the trial that he did not hold an authorization, licence, or registration certificate to permit him to possess a prohibited or restricted firearm.
Positions of the Parties
[6] It is the position of Mr. Hickey, Crown counsel, that the appropriate range of sentence in light of Mr. Tsegazab’s criminal record is eight to ten years in prison. Mr. Hickey concedes that the harsh conditions of Mr. Tsegazab’s pre-sentence incarceration place him at the bottom end of the range.
[7] Mr. Derstine submits that the appropriate range of sentence for Mr. Tsegazab is four to six years in prison. The circumstances of Mr. Tsegazab’s pre-sentence incarceration and his youth place his case at the low end of that range, according to Mr. Derstine.
Governing Sentencing Principles
[8] In determining the fit sentence for Mr. Tsegazab, I am governed by the sentencing principles set out in the Criminal Code.
[9] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sentences with objectives that include denunciation, deterrence, rehabilitation, the promotion of responsibility, and the acknowledgement of the harm that criminal activity does to victims and to our community. The sentence that I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[10] Furthermore, the sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender. It should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
Mr. Tsegazab’s Personal Circumstances
[11] Mr. Tsegazab is 26 years old. He was 22 years old when he committed this offence. He was born in Eritrea and came to Canada when he was two years old. He and an older brother and sister were raised by their mother without the involvement of his father.
[12] He has limited education, having completed only grade 10. He has since obtained more high school credits while incarcerated.
[13] Mr. Tsegazab grew up in impoverished circumstances, living in substandard community housing complexes plagued with violence. The family had to rely on food banks.
[14] His mother was regularly employed, which kept her away from the family home for much of the day, leaving Mr. Tsegazab and his brother unsupervised and free to spend their time on the streets of their community. On the street, Mr. Tsegazab saw that that the people who were flourishing were living anti-social criminal lifestyles. For a young man without positive male role models, the lure of that lifestyle was too much to resist, and Mr. Tsegazab made very poor choices.
[15] Mr. Tsegazab has a criminal record. In Youth Court, in February 2014, he was fined $100 for possession of a Schedule II substance, and in March 2014 he was found guilty of assault and served 30 days in pre-sentence custody.
[16] In November 2015, he was convicted of attempt murder, possession of a firearm with ammunition and possession of a scheduled substance for the purpose of trafficking. Mr. Tsegazab admitted to shooting someone in an attempt to murder him in retaliation for the shooting of his brother. He had just turned 16 years old. He was sentenced to a total of seven years in prison, less credit for pre-sentence custody, and ordered not to possess weapons, pursuant to s. 109 of the Criminal Code.
[17] Mr. Tsegazab was further ordered not to possess any weapons in April 2017 after he was convicted of carrying a concealed weapon and possession of a weapon for a purpose dangerous to the public peace. He received a 45-day consecutive sentence.
[18] In December 2019, he was sentenced to 30 days for assault.
[19] Finally, while in custody awaiting trial on the charge that is before this court, he was found in possession of 17.48 grams of fentanyl. On December 15, 2020, he was sentenced to five years in prison for possession of a scheduled substance for the purpose of trafficking. After receiving credit for pre-sentence custody, he had 12½ months left to serve.
[20] As is clear from his criminal record, Mr. Tsegazab has spent little time out of custody since he was a young teenager. He has no work experience. He has spent his youth and young adulthood in penal institutions.
[21] On October 11, 2022, Mr. Tsegazab was attacked by twelve inmates at the Toronto South Detention Centre. During the attack, Mr. Tsegazab suffered significant lacerations to his face that have left scars that run from his ear down his neck, close to his jugular vein, and from his temple, under his eye and across the bridge of his nose.
Range of Sentence
[22] To 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 CanLII 230 (SCC), [1996] 1 SCR 500, at para. 92.
[23] The 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 appropriate range of sentence and the principles that must guide my decision.
[24] Mr. Hickey submits that the appropriate range for a recidivist firearm offender is eight to ten years in prison. Mr. Derstine argues that eight to ten years is the range for an offender who has committed two or more prior firearm offences. In his submission, the range for someone like Mr. Tsegazab with one prior firearm offence on his record is four to six years in prison.
[25] Crown and defence counsel provided me with decisions in support of their positions that relied on the decision of R. v. Graham, 2018 ONSC 6817.[^2] In that case, Justice Code reviewed the jurisprudence on the appropriate range of sentence for s. 95 offences. He concluded that the case law supported the range of two years less a day to three years for a well situated first offender convicted of a s. 95 offence. He went on to note that three to five years was the appropriate range for a first s. 95 offence in cases where the possession or use of the firearm was associated with other criminal activity, such as drug trafficking: Graham, at paras. 37 and 38.
[26] Finally, Justice Code dealt with s. 95 recidivists. He referred to the decision of R. v. Hector, 2014 ONSC 1970, in which Justice MacDonnell held that the range of sentence of seven to nine years in prison for a second conviction for possession of a loaded firearm did not require reassessment after the five-year mandatory minimum term was struck down as unconstitutional: Hector, at paras. 16 and 38. Justice Code held that five to six years was at the bottom of the range for a second s. 95 offence, while eight to ten years in total was the upper end of the range for s. 95 recidivists who breach s. 109 orders: Graham, at para. 40 and 42.
[27] The offender in Graham was 31 years old. He was found to have carried a handgun and a large amount of ammunition around in a crowded bar. He had a previous conviction for possession of a prohibited firearm and a record for attempt murder that was committed by discharging a firearm. Three months prior to the commission of the offence, he had been ordered not to possess any weapons as a condition of probation. Justice Code did not consider the fact that the offender possessed the firearm in association with drug trafficking and in breach of two weapons prohibition orders as aggravating features because separate sentences were imposed for those offences.
[28] Mr. Graham was sentenced to eight years for the s. 95 offence, and one year consecutive for breach of two firearms prohibition orders.
[29] In R. v. Edgar Brown,[^3] Justice McMahon sentenced the offender to a total of nine years – eight years for possession of a loaded restricted firearm, 1 year concurrent for one count of breaching a firearms prohibition order, and one year consecutive for breach of a second firearms prohibition order. Justice McMahon held that the aggravating features of the case warranted a sentence “at the very high end of the range.” Mr. Brown’s age is not stated in the judgment. His criminal record was more extensive than Mr. Tsegazab’s and he was being sentenced for his third s. 95 offence.
[30] The Court of Appeal upheld an eight-year sentence in R. v. Slack, 2015 ONCA 94 for an offender’s second s. 95 conviction. The offender’s age is not stated. He had a serious and lengthy criminal record consisting of 18 prior convictions. The court held at para. 27 that the aggravating features of the case warranted a sentence, “closer to the high end of the range.”
[31] Justice Monahan sentenced a 28-year-old offender to 5½ years for a second s. 95 conviction and one year consecutive for breaching a firearms prohibition order in R. v. Dawkins, 2021 ONSC 4526. Mr. Dawkins had a less extensive criminal record than Mr. Tsegazab.
[32] The Court of Appeal upheld a six-year sentence for a 19-year-old convicted of his second s. 95 offence for having a loaded firearm tucked into his waistband: R. v. Owusu, 2019 ONCA 712. Ten months prior to the commission of the offence, he had been found guilty of possession of a loaded firearm. There are no other details about the offender in the judgment, making it difficult to compare to Mr. Tsegazab’s circumstances.
[33] The decision of R. v. Bell, 2020 ONSC 2632, in which a 25-year-old offender was sentenced to a total of four years and seven months in prison for trafficking in marijuana, possession of a loaded handgun, possession of a restricted firearm, and breach of a weapons prohibition order is distinguishable from the case at bar. Mr. Bell’s first conviction for a s. 95 offence did not precede the commission of the second s. 95 offence. Justice Forestell considered Mr. Bell’s serious heart disorder to be an exceptional circumstance warranting a sentence that was, “at the very low end of the range or just outside the range for these offences:” Bell, at para. 49.
[34] In R. v. McNichols, 2020 ONSC 6499, Justice Akhtar sentenced a 32-year-old offender to seven years for possession of a loaded restricted firearm and 18 months consecutive for six counts of breaching weapons prohibition orders. It was the offender’s third firearm conviction.
[35] This jurisprudence does not support Mr. Derstine’s submission that the appropriate range of sentence for recidivist firearm offenders is four to six years in prison. Rather, it establishes that the appropriate range is six to nine years in prison. The cases relied upon by Mr. Hickey in support of his submission that the range is eight to ten years often include the imposition of a consecutive sentence for the offence of breaching a weapons prohibition order, pushing the total sentence to nine or ten years.
[36] I turn now to consider the aggravating and mitigating circumstances of this case.
Mitigating Circumstances
[37] Mr. Tsegazab is still a young man. He continues to enjoy the support of his family. His brother, sister, mother, aunt, and niece provided letters to the court expressing their commitment to support Mr. Tsegazab when he is released from prison. His older brother, who himself has served a federal sentence, has been on parole for three years enjoying the benefits of living a pro-social life. He indicated in his letter that he intends to be an example for Mr. Tsegazab to follow to turn his life around. In addition to his family, Mr. Tsegazab has the support of two close family friends, who also wrote letters to the court on his behalf. This family and community support will be vital to his reintegration into the community and his rehabilitation.
[38] In accordance with the decision in R. v. Marshall, 2021 ONCA 344, I have also considered the conditions of Mr. Tsegazab’s pre-sentence custody in mitigation of his sentence. I will discuss this in more detail when I deal with the issue of pre-sentence custody.
Aggravating Circumstances
[39] There are several aggravating circumstances of this case related both to the offence and the offender.
[40] Several features of Mr. Tsegazab’s criminal record are aggravating. First, this is his second conviction for possession of a firearm. He was previously convicted in 2015 of possession of a prohibited or restricted weapon with ammunition, specifically a 9 mm semi-automatic handgun. Second, in 2015, he was convicted of attempt murder, an offence he committed by discharging a firearm. Third, his record includes convictions for other crimes of violence and weapons offences. Fourth, his record demonstrates a continual commitment to a criminal lifestyle.
[41] Mr. Tsegazab committed this offence in breach of two court orders prohibiting him from possessing any weapons. One was made in 2015, and the other in 2017.
[42] The firearm in Mr. Tsegazab’s possession, a 9 mm Taurus semi-automatic handgun, could fire multiple rounds in a second, making it a very deadly weapon. Mr. Tsegazab carried it on his person in a residential apartment complex at 2:30 on a Tuesday afternoon. A child-care centre was located just outside of the stairwell where the gunfight occurred.
[43] Finally, the firearm remained on the street for another eight months posing a further threat to public safety. It was recovered more than 100 kms away from the scene of the shooting.
Pre-sentence Custody
[44] The parties agree that Mr. Tsegazab should be credited at the rate of 1.5:1 for each day he has spent in pre-sentence custody. The calculation of the number of days is a matter of dispute.
[45] On December 15, 2020, Mr. Tsegazab was sentenced to five years. After being credited with 47½ months, he had 12½ months left to serve. His statutory release date was August 25, 2021. His warrant expiry date was December 29, 2021. He was not released on August 25, 2021 because he was still awaiting trial on the charge before this court. Mr. Hickey submits that Mr. Tsegazab’s pre-sentence custody should be calculated from his warrant expiry date and not his statutory release date. Mr. Derstine argues the opposite view. The difference is 125 days.
[46] In my view, the pre-sentence custody ought to be calculated from Mr. Tsegazab’s statutory release date for this reason. An offender serving a federal sentence is entitled to statutory release after serving two-thirds of his sentence, pursuant to s. 127(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”). This entitlement is not discretionary. It may only be denied on narrow grounds following a hearing: CCRA, ss. 129 and 130. There is no evidence that the Commissioner of Corrections referred Mr. Tsegazab’s case for a hearing. He was therefore entitled to be released on August 25, 2021, but for the charge before this court.
[47] I am therefore crediting Mr. Tsegazab for the following amount of time he spent in pre-sentence custody: 30 days between February 14, 2019, when he was arrested on the charge before the court and March 15, 2019, when he was arrested on the charge for which he was sentenced to five years, and then 526 days from August 26, 2021, the day after Mr. Tsegazab’s statutory release date and February 2, 2023, today’s date, for a total 556 days. He will be credited 1.5 days for each day, for a total of 834 days in accordance with R. v. Summers, 2014 SCC 26.
[48] Records from the Maplehurst Correctional Complex and the Toronto South Detention Centre setting out the number of lockdowns to which Mr. Tsegazab was subjected during his pre-sentence custody were filed before the court, as was Mr. Tsegazab’s affidavit outlining the conditions of pre-sentence custody and their impact on him.
[49] Mr. Tsegazab was subjected to lockdowns for almost half of the time he was in pre-sentence custody. During lockdowns, he was sometimes confined to his cell for 24 hours or permitted to leave his cell for only 30 minutes. Showers, yard time and phone calls to lawyers and family had to be done within those 30 minutes, which was not possible. These restrictions created significant tension on the range resulting in physical altercations.
[50] The random nature of lockdowns made it difficult for Mr. Tsegazab to have family visits. His family members had to travel significant distances by public transit to visit him. They could arrive at the jail only to be told that there was a lockdown, and visits were not permitted. As a result, Mr. Tsegazab did not want them to visit.
[51] The pandemic also increased the harshness of his pre-sentence custody. He has asthma and was afraid of contracting COVID. Living in a congregate setting, there was little he could do to keep himself safe. He believes that he has had COVID twice while in custody, although it was not formally diagnosed. The inmate code prevents inmates from reporting their COVID symptoms because once a report is made, the entire cell range is locked down. Inmates responsible for a range lockdown risk physical assaults from other inmates.
[52] As I earlier indicated, the particularly harsh conditions of Mr. Tsegazab’s pre-sentence custody, including the attack he suffered in October 2022, are circumstances I have considered in mitigation of his sentence. I have weighed them along with the other mitigating and aggravating circumstances. They cannot, however, justify the imposition of an inappropriate sentence: Marshall, at para. 52.
Determination of a Fit Sentence
[53] Mr. Tsegazab is a young man with a serious criminal record who has committed another serious offence. The possession of a loaded semi-automatic firearm, especially in the hands of someone who has proven willing to use it,[^4] threatens the safety of everyone.
[54] In his remarks to the court, Mr. Tsegazab indicated that he knew how easy it was to look at his record and see him as nothing more than a criminal, but he wanted the court to know that he has the potential to be much more than that. He wants to set himself on a new path and follow the same trajectory as his older brother.
[55] I do not see Mr. Tsegazab as just a criminal. I see him as a young man from a very disadvantaged background who has made poor choices, choices that have put the public at serious risk. There is no doubt that being a young black man raised in poverty in a racialized community where success appeared to be enjoyed only by those engaged in anti-social behaviour has contributed to the choices he has made.
[56] I accept that Mr. Tsegazab’s desire to change his life is genuine, but it must be evidenced by more than words. It is difficult to be optimistic when he is found in possession of a significant amount of fentanyl for the purpose of trafficking within one month of being arrested, at the age of 22, for second-degree murder. Rather than indicate a desire to change, it signals a continued commitment to a criminal lifestyle. I am hopeful that in the four years that have elapsed since then he has reconsidered his chosen path.
[57] Long before the decision of R. v. Morris, 2021 ONCA 680, Ontario courts recognized that, “racism, and in particular anti-Black racism, is a part of our community’s psyche:” R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.), at para. 54. Although there is no direct evidence of the effect of racism on Mr. Tsegazab’s commission of this crime, the effect of the circumstances in which he grew up is apparent to me. Those circumstances do not affect the gravity of the crime he has committed but shed light on why he has made the choices he has made.
[58] As I earlier indicated, the appropriate range of sentence for a second s. 95 offence is six to nine years in prison. In the circumstances of this case, denunciation, and deterrence, both general and specific, are paramount. Given Mr. Tsegazab’s age, rehabilitation, even if a remote possibility, cannot be abandoned.
[59] In my view, a sentence of seven years or 84 months addresses the applicable sentencing principles and takes into account the aggravating and mitigating circumstances.
[60] Mr. Tsegazab is entitled to be credited 834 days for his pre-sentence custody, leaving him to serve 56½ months.
Ancillary Orders
[61] I also make an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Tsegazab from possessing any weapons for life.
Corrick J.
Released: February 2, 2023
[^1]: R. v. Tsegazab and Bryan, 2022 ONSC 7163. [^2]: R. v. Dawkins, 2021 ONSC 4526; R. v. McNichols, 2020 ONSC 6499. [^3]: An unreported decision dated March 10, 2022 [^4]: In 2015, Mr. Tsegazab was convicted of attempted murder, an offence he committed by discharging a firearm.