Overview

[1] On September 8, 2023, after a four week judge alone trial, I found Mowlid Mohamed guilty and convicted him of 13 counts related to two separate incidents in late 2019 and early 2020, both targeting Ms. Ifrah Abdullahi. In the first incident, on December 12, 2019, less than two months after being released from serving an earlier firearms-related sentence, he discharged a firearm at, or in her direction, from only 20-30 feet as she left a house party in the Riverdale area of Toronto. In the second incident one month later, he brandished an imitation firearm at her while chasing her at high speed down Weston Road in Toronto. He intentionally rear-ended her vehicle, which caused her to lose control, moving into the oncoming lane resulting in a head on-collision.

[2] Ifrah experienced significant physical injuries and trauma arising out of the “shooting” and the “driving” offences, Mr. Mohamed was bound by three separate firearm prohibition orders at the time of both incidents and was subject to a probation order related to a previous firearm possession conviction. I acquitted Mr. Mohamed of the charge of attempted murder but convicted him of discharging a firearm with the intent to injure or maim. I also found him guilty of the four fail to comply charges, and the charges arising out of the January 2020 driving incident. My full Reasons for Decision dated September 8, 2023, can be found at 2023 ONSC 4922. They are lengthy at 71 pages and consisting of 410 paragraphs.

[3] Today, Mr. Mohamed appears before me for the imposition of sentence.

Findings of fact

[4] Ms. Abdullahi and Mr. Mohamed were not strangers: they knew each other through her cousin, Najma. Their families knew each other. Their mothers spoke to each other regularly. They are all members of the Somalian community, many of whom live in the Falstaff Avenue area of north-west Toronto, near Rexdale.

[5] In addition to the offences of December 2019 and January 2020, I found Mr. Mohamed guilty of failing to abide by the earlier firearms prohibition and probation orders. They arose out of an earlier domestic assault incident on March 4, 2018, that involved both Ms. Abdullahi and Najma (the “domestic incident”). In that incident, Mr. Mohamed was alleged to have assaulted Ifrah, Najma, the mother of his child Sabrina, as well as Sadia Dirir, who was a friend at that time. It took place at Najma’s mother’s home on Chimney Stack Road in Toronto.

[6] Mr. Mohamed was charged with both assault and weapons offences at that time but was found guilty on only three offences. He pled guilty to possession of a loaded firearm, carrying a concealed weapon and failure to comply with his recognizance. However, the assault charges were abandoned because the victims, Ifrah, Najma and Sadia, refused to testify at his preliminary hearing. The evidence only supported his committal for trial on the firearms offences. The assault allegations were abandoned.

[7] I found that that domestic incident did play an important role in the consideration of these charges. Crown counsel applied successfully to permit evidence of the so-called “domestic” incident to be introduced on this trial as prior discreditable conduct of the accused. The Crown claimed that incident provides evidence of Mr. Mohamed’s identity, and the start of his alleged dislike and hostility towards Ifrah, which is said to have motivated his conduct. Defence counsel contended it was the other way around – that Ifrah had animus towards Mr. Mohamed and his spouse Najma which caused her to fabricate these incidents.

[8] Regardless of alleged motives, there is no doubt that a shooting did occur at 127 Hazelwood Avenue in Toronto at approximately 03:30 am on December 15, 2019. Three shots were fired by a person standing in the roadway facing towards the front of that house. Those shots left three holes visible in the brick wall behind the front porch of the residence. When police arrived on scene, they located three spent shell casings and one live round on the pavement of Hazelwood Avenue, directly in front of No. 127.

[9] I was satisfied to the criminal standard that Mr. Mohamed was the shooter, based on the whole of the evidence. He intentionally fired those shots at or in the direction of Ifrah when she was standing on the front porch, but I was not satisfied that he had the specific intent to kill Ifrah.

[10] Video surveillance footage captured the high-speed car chase that took place less than a month later January 12, 2020, on Weston Road near Lawrence Avenue involving the silver vehicle that belonged to Ifrah’s mother, and a red Hyundai vehicle. This ended with a head on collision between the vehicle Ifrah was driving and another northbound vehicle.

[11] Ifrah is the only person who testified that these attacks occurred and that she was the victim. She testified that Mr. Mohamed was the perpetrator. Mr. Mohamed did not testify on his trial, but the defence did call Sadia and Marianne Mohammed (“Marianne”) as witnesses. They testified that these events did not occur.

[12] I have found based upon the whole of the evidence at trial that apart from the attempted murder charge, the Crown has proven those events beyond a reasonable doubt. I made that determination based upon the uncontested facts, my other findings of fact, my findings on the credibility and reliability of Ifrah’s evidence, and my inability to accept the defence evidence considered in the context of the evidence as a whole.

[13] My analysis and findings of fact are set out at paras. 341-407 at pages 52-66 of my Reasons for Decision. In summary, I enumerate here the findings of fact that are the foundation for these convictions:

(i) Applying the tests in R. v. W. (D.), I rejected the defence evidence, finding it was neither credible nor reliable. I rejected the defence evidence that denied these events occurred and found it could not reasonably be true. It did not leave me in a state of reasonable doubt.

(ii) I was satisfied beyond a reasonable doubt that Mr. Mohamed was the shooter on December 12, 2019, and found him guilty of possessing a firearm during the shooting incident (Count 1), of discharging that firearm recklessly (Count 4), and of having possessed that firearm at a time when he had no licence or registration certificate permitting him to do so (Count 6).

(iii) Since it was admitted that Mr. Mohamed was bound by four prohibition orders at the time of these offences, my findings of guilt on counts 1, 4 and 6 established beyond a reasonable doubt that he was also guilty of the four fail to comply charges.

(iv) Mr. Mohamed fired three shots at or in the direction of Ifrah while she stood on the porch and was thus guilty of count 5, recklessly discharging a firearm at her.

(v) The Crown charged Mr. Mohamed with attempted murder but I was not sure that Mr. Mohamed possessed the specific intent to kill. As a result, I acquitted him on the charge of attempted murder. A specific intent to kill was one of the possible inferences that could be drawn from the circumstantial evidence, but I was not satisfied that was the only possible inference: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

(vi) I accepted Ms. Abdullahi’s evidence that identified Mr. Mohamed as the person who was driving the red Hyundai vehicle that was chasing her down Weston Road.

(vii) I found beyond a reasonable doubt, based upon the evidence, that Mr. Mohamed did intentionally collide the red vehicle he was driving with the rear end of her vehicle twice, as alleged in Count 12, thereby assaulting her using his motor vehicle as a weapon and causing her bodily harm, within the meaning of ss. 267(1) of the Code.

(viii) While no “firearm” was ever located. I was satisfied on the evidence that Mr. Mohamed did possess and use at least an imitation firearm by brandishing or waving it while committing the principal indictable offence of either assault with a weapon causing bodily harm, or dangerous driving causing bodily harm, and consequently convicted him on Counts 11 and 14.

(ix) I found that Mr. Mohamed was criminally negligent while operating his motor vehicle and thereby caused bodily harm to Ifrah as alleged under s. 221 of the Code. I was also satisfied beyond a reasonable doubt that the accused’s conduct while driving showed “wanton or reckless disregard for the lives or safety of other persons”, that is, a “marked and substantial departure” from that of a reasonable person in the circumstances, how a reasonable, prudent driver would have driven on Weston Road on that Sunday afternoon in January. Based upon these findings, and relevant caselaw, I convicted him of Count 13.

Circumstances of the Offender

[14] Mowlid Mohamed is presently 28 years old. He was born and raised in Toronto, Ontario by his mother, Zahra Saled and her husband. Ms. Saled immigrated to Canada from Somalia in 1988 and got married in Canada in 1993. She and her husband had two sons, this offender and his younger 24-year-old brother, both of whom are now involved in the criminal justice system. His mother and father, who is also Somalian, are both employed. Ms. Saled said she attended College in 1998 for Travel and Tourism. In 2009 she attained a certificate and opened her own daycare services. The father’s circumstances were not as positive. Despite attending college in 1997 and obtaining qualifications in computer engineering, he found most doors were closed to him in that line of work and had little choice but to work as a driver. Unfortunately, this is a not an uncommon hardship faced by well-educated immigrants to this country.

[15] Mr. Mohamed’s early encounters with the justice system were of lesser seriousness, but since 2019 he has been convicted and sentenced for several more serious offences including trafficking cocaine. More importantly, on October 18, 2019, he pleaded guilty to possession of a loaded prohibited firearm, carrying a concealed weapon, and failing to comply with a recognizance. He was sentenced to a total of 1-day plus probation for 2 yrs. (25 mos. pre-sentence custody) and a mandatory weapons prohibition.

[16] In the Pre-Sentence Report for this matter, the offender described his childhood and the environment he grew up in. He has lived in a 3-bedroom community housing apartment building located in the Weston and Lawrence area of Northwest Toronto for his entire life. The neighbourhood is predominantly comprised of black and other racialized immigrant families. However, he denied ever being a victim of mental, physical, or sexual assault stating he was provided for, and never witnessed any domestic violence at home.

He said he “just got caught up in all this nonsense”. His experience of living in that community was turbulent. He saw close friends die from violence and was personally hit by a car and stabbed in 2016 without knowing if he was really the intended victim.

[17] Even more traumatic was his experience on February 6, 2016, of being present and a witness to the death of his 17-year-old best friend, who was killed at a Mississauga hookah lounge. He had a bad feeling attending that bar, and then suddenly the situation became violent. He saw and heard a gunshot and then he watched helplessly as his best friend bled to death in front of him.

[18] He did not have cordial relations with police after that incident. He claimed he and his friends were rounded up and interrogated and harassed by the Peel police. That same year, Mr. Mohamed lost another friend to murder at a pizza store located at Weston Road.

[19] His only significant life relationship has been with his child Sabrina’s mother, Najma Abdullahi, who he met in 2016 through mutual friends and lived with for 1-year prior to his arrest. He says he was living with her at her mother’s residence located near York University at a community housing complex.

[20] His early experiences with racism started while in school where other kids would make underhanded comments about his Somalian culture and background, and the cultural attire (hijab) that his mother and others from his community wore. In terms of police interactions, he says “a lot of times I got harassed first time”. He recalled an incident when he had purchased a vehicle and parked it outside his residence. Police attended and investigated thinking it was stolen. He was able to show them his registration and papers, but he says he was still questioned and stated he was assaulted by police. Interactions with police were often unpleasant, which he felt was because of his race. His mother, Ms. Saled, feels the basis of this entire case before the court is race related and police harassment:

[21] When he was 15, Mr. Mohamed was diagnosed with diabetes. He has been required to take insulin while in detention. His mother noted this diagnosis of Type 1 diabetes in 2013 took a toll on him. He changed when he became a diabetic in 2013, stopped having friends around and was just staying home. He did not want to be different from other kids and it had a very big impact on him.

[22] The offender’s got to grade 12 although he has not completed his GED. He was suspended in grade 9 after an incident at school which resulted in charges which were subsequently dropped in court but still resulted in him being removed from school. He plans to complete his GED and has been accepted for registration in the Amadeus Program. Upon completion of his sentence, he plans to spend time with his family, apply for social assistance until he finds a job, and then save money and start his own cleaning company. He would also like to pursue online schooling to complete his high school diploma and continue his education at a college in business technology management.

[23] The offender continues to deny his involvement or culpability stating the victim is his child’s mother’s cousin and that she has wrongfully accused him of these offences. Mr. Mohamed feels no remorse because he believes he was dragged into a toxic jealousy situation between Ms. Abdullahi and his spouse Najma. He is unable to express any remorse or empathy in connection with the impact his behaviour has had upon the victim who evidently remains very frightened and scared of him.

[24] Ms. Abdullahi believes his involvement in the criminal justice system was a direct result of the community and the associations Mr. Mohamed grew up with that impacted his lifestyle. She believes it became easy for him to be become involved in criminality because the entire community was toxic. Ms. Abdullahi expressed her belief that the only way to break his cycle of offending will be removing Mr. Mohamed from the community.

[25] His mother, Ms. Saled, echo’s this sentiment, feeling that the environment negatively impacted her children despite she and her husband having done their best to provide a good home for their children.

[26] In considering the risk of further offending, the PSR author identified risk factors including emotional and anger management concerns, access to weapons including firearms, lack of victim empathy, victim fixation, poor decision making, impulse control and negative peer association. He observed it was far from clear how much insight the offender has in relation to these concerns given his present obstinance from any acceptance of responsibility with respect to the current matters but found it evident that he will need to undertake considerable work on some of these issues if he is to move forward in his life. The PSR author concludes by expressing his opinion and hope that Mr. Mohamed will benefit from any psychological assessments and counselling. I agree wholeheartedly and will address that at the conclusion of these reasons.

Victim and community impact

[27] Ifrah Abdullahi provided a Victim Impact Statement, filed on these proceedings, which she delivered in person on April 4th, 2024. It would be difficult to overstate the impact that Mr. Mohamed’s conduct has had on her. For the past four years she has lived with the psychological and physical harm and trauma caused by Mr. Mohamed’s violence towards her. She has been impacted physically, emotionally, and economically, and those impacts will stay with her

[28] She has suffered physical discomfort and pain since the car accident sustained on January 12, 2020. In her victim impact statement, she refers to numerous physical impacts suffered directly out of the shooting and car accident, including burning joint pain that affects her mobility, difficulty sleeping due to chronic discomfort, migraine headaches, and ringing in her ears. She has scars on her hands and wrists that serve as a constant reminder of her experience. She is under the care of a physician who has prescribed medication for her pain and has been required to attend physiotherapy to address her pain issues. She has also been referred to specialists to manage her pain and muscular issues.

[29] The events also caused significant emotional impact. Ifrah Abdullahi lost her teenage brother to gun violence on August 1, 2019, only months before her own shooting. His murder remains unsolved. Mowlid Mohamed knew her brother and the circumstances of the murder. She believed the condolences he expressed while incarcerated in the fall of 2019 were sincere, but she now feels betrayed because that same person discharged a firearm at her, and subsequently brandished a firearm at her in terrifying and dangerous circumstances. She has tried to understand why he would do this to her, but she cannot reconcile his actions with any reasonable explanation. He displays no empathy.

[30] Ifrah has also suffered enormous psychological distress from the accumulation of these events in the aftermath of the shooting, as she tried to protect her mother from further pain and trauma after her brother’s death. Her personality and outlook have been altered. She was previously an outgoing and optimistic social person but is now negative and pessimistic.

[31] Ifrah has also lost friends, especially a valued lifelong relationship with her cousin Najma who she loved dearly. Because of these crimes and her decision to testify in this case, evidently contrary to a community preference for silence, she has endured the pressure of friends, family members and even a religious leader who spoke with her family to dissuade her from testifying about what happened to her. She described her experience as having lost the lifelong friendship of her cousin Najma, but she cannot understand why Najma’s boyfriend shot at her and shortly after, hit her car and tried to run her off the road.

[32] Finally, Ifrah suffers from anxiety and depression, feels fearful and paranoid, and has nightmares about the offender being ultimately released from jail. She hopes that the justice system holds him accountable and will protect her protection from Mowlid. That said, she must also come to grips with the inability of this or any court to effectively lock him up and throw away the keys.

[33] The impact on the community was enormous. Members of the Riverdale community surrounding 127 Hazelwood, and Toronto Counsellor Paula Fletcher, expressed shock and outrage following the shooting at that address. The Crown’s materials included a Toronto.com news article about the shooting wherein the homeowner of 127 Hazelwood, N. Keogh, expressed upset and stated:

This is our house, our life, our community too. It’s something that has happened to all of us...I’ve put people I know in the community in a difficult situation. I’m horrified for myself and people on the street.

[34] It is well known by all that the City of Toronto has been plagued by gun violence for a very long time, but the communities that must survive these events are forever altered. Friends, family members and neighbours are injured, murdered, or traumatized by exposure to gun violence and shootings. These are all factors I must consider in determining a fit sentence in a case like this.

Positions of the Parties

[35] On this sentencing, in addition to ancillary orders, the Crown calls for a total global sentence of 22 years in jail as the penalty that is warranted, less approximately 6 years of enhanced pre-sentence custody credit. That is a worst-case scenario, however, because Crown counsel acknowledged that the position set out in her written submissions did not consider either the principle of totality, or any additional R. v. Duncan or R. v. Morris credit, to which Mr. Mohamed may be entitled, and which I am bound to consider while fixing a fit sentence for him.

[36] Crown counsel described Mr. Mohamed’s entitlement to those credits or considerations as contested matters in the circumstances of this case to be determined during sentencing. I was uncertain for much of the sentencing hearing of what the Crown’s global position would be. What was clear, however, was the Crown’s adamant request that the court must impose the maximum possible sentence that could possibly be given to this offender as legislated by Parliament, including delayed parole eligibility. Crown counsel did ultimately concede, in reply, that a sentence of 16 years would meet the requirements of sentencing.

[37] Defence counsel acknowledges the Crown’s position and law relative to concurrent and consecutive sentences but, in his submission, the sentence of 22 years sought by Crown counsel is wildly excessive and crushing having regard to the important principles of totality, parity, and proportionality. He advocates for a global sentence of 10 years.

5. Legal Principles

(i) Principles and Purposes of Sentencing

[38] The fundamental purpose of every sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Section 718 of the Code enumerates specific objectives, but plainly the most important in this case are deterrence of the offender, specific and general; the denunciation of unlawful conduct; the protection of the public; and the separation of the offender from society where necessary.

[39] It is Crown counsel’s position that the primary purposes of sentencing in this case must be denunciation and deterrence to achieve the paramount objective of denouncing such dangerous conduct and sending a clear and unequivocal message to Mr. Mohamed, and other like-minded individuals, that reckless disregard for the lives of citizens who live in our communities will be met by the courts with swift and severe punishment. To achieve that goal, the Crown argues that the imposition of a significant penitentiary sentence that will incapacitate this offender is necessary to protect the public and the victim from future harm.

[40] While Crown counsel submitted that the prospects of rehabilitation for this offender are grim, I need to emphasize that rehabilitation is always an important sentencing objective that must be considered. This is especially true in circumstances where the Morris factors call upon the court to balance the need for a strong message of deterrence and denunciation, within the social context of the offender’s life.

[41] Further important objectives are found in sections 718.1 and 718.2. The principles of proportionality and totality require that a sentence speak out against the offence but stipulate that it must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence, as compared to other offenders and the circumstances of their crimes. Taken together, with s. 718.2(b), I am mandated to ensure that the sentence imposed on this offender respects the principles of proportionality and consistency of sentence for similar offences in similar circumstances: see R. v. Nasogaluak, [2010] S.C.C. 6.

[42] Moreover, as sentencing judge, I am now also required to consider whether an offender’s moral blameworthiness may or ought to be reduced to the extent that I find that his experience dealing with systemic racism in Canada has a direct impact on the social context within which these offences were committed. There was no formal enhanced PSR, in this case, but Mr. Hayworth reviewed the Morris factors thoroughly and related them to Mr. Mohamed’s life experience.

[43] Subject to the specific statutory rules, however, the determination of a fit sentence remains an individualized process calling upon the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective supercedes the others. The relative importance of aggravating or mitigating factors found to be present in the circumstances of any case will push a sentence up or down on the scale of appropriate sentences for similar offences.

[44] It is beyond question that a significant penitentiary term will generally be warranted upon conviction for violent offences like these, subject only to the mitigating effects of the Morris factors and his entitlement to credit under R. v. Summers and R. v. Duncan. Whether that sentence requires that the maximum for each of the principal crimes is required, or whether this is that unique case that calls for the offender to serve one-half of his sentence before even being considered for parole is addressed in the analysis below.

(ii) Principles of sentencing a youthful offender

[45] In determining the fit sentence for Mr. Mohamed, I am also mindful of the fact that he is a young man, 28 years of age. While he does have a criminal record relating to the 2018 gun-possession offences, this will be Mr. Mohamed’s first penitentiary sentence. The Court of Appeal has said that a “first penitentiary sentence should be as short as possible”: R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.): see also R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) at pp. 294-295, where Rosenberg J.A. stressed that the primary objectives in sentencing a first offender are individual deterrence and rehabilitation, so a first sentence of imprisonment should be tailored to the individual circumstances of the accused and be as short as possible.

[46] The decision in R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108, and the decisions in cases decided since then, inform the proposition that the harm caused by systemic anti-black racism, generally, and as it applies to offenders, must be acknowledged and considered as factors that weigh in favour of mitigation.

[47] The submissions of defence counsel and commentary in the PSR Report show that Mr. Mohamed has been directly affected by systemic racism as a member of the Somalian community and having regard to numerous interactions he has had with police, seemingly precipitated by his skin colour. However, while that may help to understand who this offender is and what his life was and is like, it provides relatively little insight into the question why Mr. Mohamed focused on this victim in committing these crimes.

[48] However, Morris explains that the purpose is not to excuse the conduct, and it need not be to explain a direct link between the background and the specifics of the offences, but rather to explain its social context. It is to show that the offender has been subjected to systemic racism throughout most of his life, as well as having experienced extremely negative violent life altering events, and the disadvantages of growing up in a racialized development of community housing, known for violence and criminal activity. It is meant to assist in finding the balance point between deterrence and denunciation, moral culpability, and the offender’s rehabilitative prospects. It serves that function within the context of the mandate explained at para. 61 of Morris, that proportionality is the fundamental and overarching principle of sentencing, measured by reference to both the offence and the offender: see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 40; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.

[49] At para. 66 in Morris, the court references a passage emphasized by Crown counsel from R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 12, where the majority again emphasized that:

[P]roportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task.

[50] Looked at from that perspective, the role of social context evidence in the circumstances of sentencing Mr. Mohamed is revealed. In Morris, Tulloch J.A. as he then was, explains at paras. 79-80 that:

79 The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

80 Blending the various objectives of sentencing is the essence of the sentencing process. There is seldom one and only one fit sentence. As long as the sentence imposed complies with the proportionality requirement in s. 718.1, trial judges are given considerable discretion to decide how best to blend the various legitimate objectives of sentencing. If trial judges operate within that band of discretion, the different weight assigned to different objectives may produce different but nonetheless equally fit sentences.

[51] The social context evidence may provide a basis upon which the trial judge could give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence. A trial judge who does so does not diminish the seriousness of the crime but recognizes that the sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender, but it must also remain proportionate to the offence and the offender. Even if the social context evidence does not explain how or why the offender committed the offence or offences, at a minimum it permits a more informed and accurate assessment of the offender’s background, character and potential in considering the appropriate sentence. In its summary and consideration of the connecting factors between social context evidence and the specific crime, as was the case in Morris, at para. 106, the court referred to these purposes that call for social context evidence to be admitted, and then continued:

…Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust. A sentencing process which frankly acknowledges and addresses the realities of the offender’s life takes one important step toward the goal of equal justice for all.

6. Analysis

(i) Findings on Appropriate Range

[52] There are three distinct components of sentence called for in this case because there are three separate occurrences which call for punishment: (i) the shooting incident; (ii) the driving incident and (iii) the breach of prior orders prohibiting the offender from possessing firearms. As such, there are three separate discussions required relative to the appropriate range of sentence, before considering other factors.

(a) The shooting incident:

[53] As the Supreme Court of Canada explained in R. v. Lacasse, above, sentencing ranges are meant to provide guidance but are not intended to create sentencing “straitjackets”, or serve to restrict the discretion of a sentencing judge. At para. 1 of Lacasse the court emphasizes that:

Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C-46, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.

[54] Lacasse instructs that proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. This means the severity of a sentence must embrace not only the seriousness of the offences and their consequences, but also the moral blameworthiness of the offender. Looked at from this perspective, sentencing ranges gather the accumulated knowledge and experience derived from the sentencing of the gamut of similar criminal conduct to describe the principles and objectives that ought to be applied in any case. The focus is on parity and proportionality. At para 57 the court wrote:

[57] Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. (Emphasis added)

[55] I accept that there is potential overlap in the range of sentence fit for a finding of attempted murder, as compared to the lesser offence of discharge firearm with intent for which this offender was convicted under s. 244. The maximum sentence contemplated there is 14 years imprisonment. Crown counsel emphasized that her request that the maximum sentence be imposed for the shooting at 127 Hazelwood and at Ms. Abdullahi respects my finding that Mr. Mohamed was found not guilty of attempted murder. However, in advancing that request, and while delineating between the two similar but differing ranges, it is the Crown’s position that this offender’s conduct calls for the maximum punishment possible of 14 years: see R. v. Small, 2023 ONSC 6841 at paragraph 40.

[56] In Small, Schreck J. sets out three sub-categories of range for the offence of attempt murder. He describes the “mid-range” as 10 to 16 years for cases of attempted murder involving the use of firearms in public places ... and in domestic situations. While the outcome of the cases and sentences imposed are different, the factual context of the shooting cases is similar. That range can in turn be broken down into three subcategories:

(i) in rare cases, single-digit sentences, such as the six-year sentence imposed in the unusual circumstances in Forcillo, where a police officer attempted to kill an individual after justifiably shooting him in the execution of his duties ...

(ii) sentences of 10 to 16 years in cases involving the use of a firearm in a public place, “planned executions” and domestic situations (Emphasis added), and

(iii) higher sentences of up to life imprisonment in cases of “stark horror,” very serious and permanent injuries to the victim, or a lengthy criminal record; ...

[57] The judge concluded in the circumstances before him that Mr. Small fell into the middle range. Considering his antecedents, the fact that the offence involved the discharge of a firearm in a public place, as well as the lack of injuries to the potential victim, Mr. Khamis, he concluded that the appropriate sentence was one of 12 years.

[58] In my view, the mid-range cases referenced in R. v. Small, do embrace shootings in similar circumstances and contexts, specifically involving shootings in public places and in “domestic situations”. In this case I found that Mowlid Mohamed intended to wound or endanger the life of Ifrah Abdullahi and plainly it occurred in a public place, but I do not accept it occurred in a “domestic context”, as those words should properly be understood for purposes of sentencing. In fairness to the Crown, however, I agree she did accept that the statutory aggravation of a domestic situation does not apply here, even if the case has “domestic aspects”, writ large. The big difference from this case, however, is that the range of sentence will always be lower in a case of discharging a firearm with intent to cause bodily harm, even if allegedly comparable to an attempted murder, simply because the intent necessary for attempted murder is not present.

[59] As defence counsel emphasized, that reality necessarily brings the consideration of range to the so-called “Bellisimo range” of 7 to 11 years for violent, serious, firearms and gun related offences. More recently, Boswell J. of this court summarized the import of that range and the cases that fall within it in R. v. Derby, 2022 ONSC 2266 at paragraph 71:

[71] R. v. Bellisimo, 2009 ONCA 49, is appellate authority that offers guidance on the appropriate range of sentence to be imposed. Mr. Bellisimo entered a restaurant in downtown Toronto and was bothering a female employee. He was asked to leave. He left, though not without some further ado. Twenty minutes later he returned, armed with a handgun. He fired three or four shots inside the restaurant directed at the person who had asked him to leave. He chased the victim, continuing to fire his gun. The victim was struck in the lower back. Another of the shots he fired caused a minor injury to a second victim and another narrowly missed killing a third victim. The trial judge imposed an effective sentence of 8-1/2 years. The Court of Appeal found the sentence imposed to be inadequate. They noted that the range of sentence for serious gun-related offences is between 7 and 11 years. They imposed a sentence of ten years.

[60] Crown counsel referred to a group of five cases said to illustrate the “Bellisimo range” of sentences in other similar shooting cases: R. v. Fogah- Pierre, 2024 ONSC 386; R. v. Abderezak, 2022 ONSC 6737; R. v. Stephens, 2024 ONSC 35; R. v. Weeden, 2019 ONSC 773; and R. v. Derby, 2022 ONSC 2266. I do not consider Fogah-Pierre because it was a very different case than this and not relevant in my view.

[61] R. v. Stephens, R. v. Weeden, and R. v. Derby, arguably bear much greater similarity to the seriousness of this case. Stephens is the most recent where A. Goodman J. also reviews Weeden and Derby. Referring to Stephens, Goodman J. summarizes as follows at paras. 35, and notes at para 37 that since Bellisimo, the prevailing jurisprudence in Ontario has continued to adopt this range in at least eleven, if not more, cases of firearms-related violence:

35 Following a trial, the accused was convicted of aggravated assault and possessing a weapon for a dangerous purpose. The trial judge sentenced the accused to eight and a half years custody. On appeal, the sentence was found to be manifestly unfit. At paras. 4- 5, the Court of Appeal specifically noted that:

We see virtually no mitigating factors. The seriousness of these crimes is hard to overstate. The respondent fired several shots in the restaurant. One significantly injured a victim, another caused a minor injury to a victim, and a third narrowly missed killing a third victim.

General deterrence and denunciation must be given a paramount weight in sentencing for these kind of dangerous gun related charges. We think the sentence fails to give adequate weight to these factors. We think a proper sentence is ten years . . ..

[62] Despite no mitigating factors, in Stephens, where two persons were injured and one narrowly missed being killed, the Court of Appeal increased the 8.5-year sentence to 10-years, not at the top of the range, and went on to comment that, in general, the range of sentence for these kinds of serious gun related offences will be between seven and 11 years.

[63] In Weeden, the accused was found guilty of aggravated assault, possession of a loaded firearm, and discharge with intent, following a trial. A conflict arose in a bar Weeden retrieved a gun, brandished it and fired a single shot. No one involved in the conflict was injured, but the bullet struck an uninvolved victim who was sitting in a vehicle nearby. Like Mr. Mohamed, the offender had a prior criminal record and was on a weapons prohibition order. It was aggravating (i) that the accused intentionally shot his gun towards a group of people who could easily have been killed, and (ii) that he did so in a public place where bystanders were put at risk. With the presence of those factors, the court imposed a sentence of nine-and-a-half years on the charges of aggravated assault and discharge with intent, relying for authority on the Bellisimo range.

[64] More recently, in Derby, the accused pleaded guilty to four charges arising out of a drive by shooting in downtown Whitby where he discharged eight bullets at the victim's vehicle. Fortunately, the victim was not injured. Boswell J. ultimately held that the appropriate sentence for the offence and offender, even without any actual injury resulting, was one of 10-years. The Court reduced this number to eight and a half years in consideration of the accused's guilty plea, the COVID-19 pandemic and the documented background of the impact of systemic racism on the offender. Nevertheless, he had a troubling criminal record, more serious than Mr. Mohamed. Importantly, at para. 81, Boswell J. observed that the Bellisimo range was not restricted to cases of actual injury, but also applied where injury was intended, like the present case.

[65] Finally, Crown counsel references R. v. Abderezak. The victim was a lawyer whose law firm and associates were targeted. The lawyer and her associate were robbed at gun point and subsequently her law office had shots fired at it at 5:06 pm on a workday. Again, fortunately, there were no injuries. The offender was a youthful, 24-year-old first offender at the time of the offence. He had no criminal record and was remorseful in entering a guilty plea. The Crown sought a sentence of 16 years, while the defence advocated for a sentence of 6.5 years. Despite those mitigating factors, Fuerst J. found that a sentence of 6.5 years sought by the defence failed to recognize the gravity of the offence and the accused’s moral blameworthiness. He was sentenced to 12 years in total, but importantly, I note this sentence is composed of two elements, 7 years in jail for the discharge offence, and five-years consecutive for the separate serious robbery offence.

[66] The Crown also refers to R. v. Adam, 2022 ONCJ 103, and R. v. Weir, 2022 ONCJ 103, to “contextualize the range of sentence available and to support the submission that sentences at the bottom end of the range are only appropriate for offenders who are distinct from Mowlid Mohamed.” However, I do not find, that these cases assist me in determining what the sentence should be the offender in this case, other than to acknowledge that a sentence at the low end of the Bellisimo range would not be fit.

[67] Defence counsel and the Crown both referred to the Court of Appeal’s decision in R. v. Claros, where the offender shot a drug dealer on a public Hamilton street. As well he was convicted of offences in Thunder Bay. The result was a sentence for both the Hamilton and the out-of-town offences – a global eight-year sentence that the Court of Appeal substituted for a five-year sentence imposed by the trial judge. The offender was 27, older than Mr. Mohamed at the time of the shooting, but he had also amassed 50 convictions in an unbroken string of offending, and he had been under custody of court orders since he was around 12 years old. Even so, against that background, the Court focused on totality:

…[T]otality definitely applies, even when there are two different jurisdictions and two things [sic], and the ultimate sentence should not be disproportionate, but it also should not be crushing for him. He is still a young man at 27.

[68] In R. v. Edwards-Lafleur, 2023 ONSC 5463 (“E.L.”), the offender pleaded guilty to robbery with a firearm, with intent to wound, unlawfully discharging a firearm, possession of a restricted or prohibited firearm, and several breaches of court orders related to firearms. After arranging a drug deal, he and his co-accused robbed the victim of drugs and pistol whipped him in the head with a handgun. When another victim tried to intervene and they tried to call 911, E.L. turned the gun on the victim. He shot him in the chest at close range. Surprisingly, the bullet did not kill the victim, but went right through him and then struck the co-accused in the knee. The Crown sought a global jail sentence of 13 years in that case. There was no dispute from the defence as to the global sentence of 13 years. The only issue was the degree of aggravation and mitigation.

[69] Goodman J. found that general deterrence and denunciation were the primary objectives in the case. Further, E.L.’s significant criminal record including his youth record with related convictions was aggravating. In fact, it was made worse because these offences occurred right after he was released from serving a five-and-a-half-year sentence for a 2016 conviction for similar crimes.

[70] Unlike in 2016, it was quite mitigating in the more recent case that E.L. pleaded guilty, expressed some degree of regret for his actions, and had experienced anti-Black racism. He had also spent a significant amount of time in custody, including about eight months of lockdown, and several misconducts. Notwithstanding his own institutional misconducts, Justice Goodman determined that the sentence should be mitigated by the equivalent of one year. E.L. was sentenced to eleven years for an arguably more serious crime than is present here. Without doubt, the guilty plea was the key to that sentence.

[71] In R. v. Suave, the offender was found guilty after trial of discharging a firearm, aggravated assault, using a firearm while committing an indictable offence, occupying a motor vehicle while a firearm was present, and other offences. He was also sentenced to 11 years, but much more aggravating, he and another person had gone through a townhouse complex in Toronto and then fired 13 rounds into the living room of one of the residential units before fleeing. A ten-year-old boy was shot, but survived

[72] Suave was 23 at the time of sentencing and had amassed 15 convictions for serious violent offences as an adult and a youth. Justice Byrne found that the only mitigating factor was the offender’s youth. He received an 11-year sentence for the discharge of the firearm and 6 months consecutive on the dangerous operation of the motor vehicle, the other charges all being concurrent.

[73] Defence counsel certainly makes no claim that the facts in this case are good or positive or not aggravating, but he focused on my language in R. v. Patten and James, 2024 ONSC 1737, at para. 74, about the challenge of determining where to place an offender in the range, or on the continuum if beyond the range. Notwithstanding the extent of the aggravating factors that are present in Mr. Mohamed’s case, he suggested that the cases he referenced seem equally if not more aggravating than what is present in this case, yet the sentences imposed continue to sit within the Bellisimo range, and even with aggravation and institutional misconducts, the offenders were given Duncan credit.

[74] Considering these cases, I have concluded that a sentence at the top of the Bellisimo range, or no more that 12 years, better reflects what is appropriate in this case for the firearms offence. I find the maximum sentence of 14 years is and would be excessive.

(b) The driving incident offences

[75] In relation to the driving incident, I found Mr. Mohamed guilty of four offences but which plainly substantially overlap each other.

[76] It is important to my findings that the only evidence relating to the presence of a firearm was the evidence of the complainant, who described the offender as waving around or brandishing a firearm as he was chasing her down Weston Road in his vehicle. There was SOCO evidence that the windows of the red Hyundai were not tinted and thus that Ms. Abdullahi would have been able to see through the windows of that vehicle that it was Mr. Mohamed chasing her. However, there was no external evidence corroborating Ms. Abdullahi’s evidence that Mr. Mohamed brandished a firearm. There was no evidence whether what he waved around was a firearm, so in accepting her evidence that she believed she saw him brandishing a firearm and convicting him of that offence, I was only able to find that it was an imitation firearm.

[77] Further, in my view, the most serious of the driving incident offences was count 12, assault causing bodily harm to her using his vehicle as a weapon, not the dangerous driving offence described in s. 221. First, whether the vehicle was a weapon in these circumstances will depend on whether the defendant intended to use the object in question as a weapon, whether it was designed as such or not. It is plain here that this defendant had that purpose.

[78] In R. v. Piapot, 2017 SKCA 69, 355 C.C.C.(3d) 239, an aboriginal accused was convicted of common assault of a former girlfriend, flight from police, dangerous driving, and assault with a weapon. The trial judge found that he had used the motor vehicle like a gun to chase the vehicle driven by his ex-girlfriend at a high speed within city limits and on icy streets, at one point attempting to drive into the victim’s vehicle. Following a risk assessment under s. 752, The trial judge designated him as a long-term offender (LTO) as he met the designated conditions pursuant to s. 753.1(1)(b) of the Code.

[79] The Saskatchewan Court of Appeal upheld the convictions and the LTO designation. Interestingly to me as well, in this context, in considering which offence is more serious, I note that an assault with a weapon causing bodily harm, including presumably a vehicle, would qualify as an offence within para. (a) of the definition of “serious personal injury offence” in s. 752 for the purposes of Part XXIV, but there is no indication that dangerous driving causing bodily harm would also so qualify.

[80] In my view it was not by his dangerous driving that Mr. Mohamed caused bodily harm to Ms. Abdullahi, but rather as a direct result of him using his vehicle as a “weapon”, ramming the back of her vehicle, and ultimately causing her loss of control, the head on collision, and her injuries that ensued. It would also appear that this conclusion, respecting the more serious nature of the assault causing bodily harm offence, may be supported by other provisions of the Code. I find it much less persuasive that the waving or brandishing of the firearm was the cause of her injuries. It is his assault with his vehicle that brings about those injuries.

[81] The range of sentences available for s. 221 dangerous driving convictions is broad. The Crown submits that Mowlid Mohamed should receive a sentence of two years in jail for the s. 221 and the s. 267(1) driving related offences and receive a consecutive sentence of 3 years in jail for the use of the firearm to threaten the victim while chasing her in his vehicle as she drove trying to escape him. – for a total sentence of 5 years jail for the “driving incident”, to be served consecutively to the “shooting” and “prohibition order violations”.

[82] Crown counsel referenced R. v. Lights, 2017 ONSC 5153 at paragraph 30 where Justice Allen reviews several cases involving driving offences resulting in bodily harm. She said:

Sentences for cases involving driving offences resulting in bodily harm vary greatly given the wide-ranging circumstances of collisions and the differing backgrounds and driving records of offenders. Sentences in the cited cases range from non-custodial, intermittent and suspended sentences to reformatory and penitentiary sentences. Driving prohibitions range from one year to seven years.

[83] Her Honour then listed a series of twelve driving related decisions, but I did not find those cases particularly helpful in the circumstances of this case. Five involved impaired driving, which was not present here. Only one involved the presence of a firearm. Seven of the cases involved death or serious injury being caused to pedestrians or injured other drivers or cyclists. One involved an attempt at motor suicide, and only three involved breach of driving prohibitions. Only two seem relevant to me, both suggesting a sentence for somewhat similar crimes of about two years, although I recognize there was no firearm component to those cases.

[84] In R. v. Zarb, 2014 ONSC 2585, [2014] O.J. No. 2180 (Ont. S.C.J.),.an older offender with deteriorating physical and mental health, was convicted of dangerous driving causing bodily harm and failure to remain after he drove aggressively on a highway, cut off another driver, hit another vehicle causing it to run into a concrete barrier, and fled the scene. He received a total sentence of 18 months’ custody for dangerous driving, 12 months’ concurrent for failing to remain, a 10-year driving prohibition and a DNA order.

[85] Finally, in R. v. Balcha, 2004 CanLII 396 (ON CA), [2004] O.J. No. 1217 (Ont. C.A.), an offender with no criminal record was convicted of dangerous driving causing bodily harm and failure to remain. He was sentenced to 2 years less a day and a 5-year driving prohibition. He and his spouse left a club and were attacked by three assailants. The offender then chased the assailants in his vehicle, just as Mr. Mohamed chased Ms. Abdullahi, but the offender also hit and backed over a man who was not one of the assailants. On appeal the custodial sentence was upheld, but the driving prohibition reduced to 1 year.

[86] The Crown submits that a mandatory driving prohibition of seven years from the time of his release is warranted in this case since Mr. Mohamed was neither licensed nor insured when he used his vehicle as a weapon. In her view, that demonstrated his blatant disregard for the law, and the safety of others.

[87] Defence counsel took the position that the total sentence for the driving incident offences should be limited to a period of two years, one year for the assault with a weapon causing bodily harm offence, and one-year consecutive for the offence of using a firearm while committing that principal offence. He asks the court to impose one-year concurrent sentences for the other two driving incident related offences, to be served concurrently.

(ii) Consecutive sentencing for fail to comply offences

[88] It is the Crown’s position that consecutive sentences are required for a number of these offences. Consecutive sentences are appropriately imposed either where mandated by the Code, where the sentences relate to different delicts separated in time and space, or where the sentences relate to fail to comply offences in respect of breaches of successive or collective orders of the court: see R. v. Abderezak, above.

[89] The issue is fully canvassed in the Court of Appeal’s three decisions in R. v. Houle, 2008 ONCA 287, R. v. McCue, [2012] O.J. No. 6381 (C.A.), and R. v. Claro, 2019 ONCA 626, and in this court, in R. v. Addow, 2014 ONSC 3225 at paras. 29-35. Moreover, Parliament has made it clear in ss. 718.3(4), that consecutive sentences should be imposed when the offences do not arise out of the same event or series of events, or when different societal interests are engaged. In Addow, at para 29, I referred to Renaud, The Sentencing Code of Canada: Principles and Objectives, where the author affirms that:

Separate events or transactions ought to result in consecutive sentences if the result is a total term that is not unduly long or harsh, and thus conforms to s. 718.2(c) and that does not offend the proportionality requirement of s. 718.1 of the Criminal Code (Emphasis added).

[90] This position is reflected in both Houle at para. 4, and McCue at para. 20 which comment upon the circumstances where sentences can and ought to be imposed. The Court of Appeal observed that in fixing the appropriate length of a consecutive sentence, a trial judge must have regard to the totality of the sentences to be imposed. However, it acknowledges that totality concerns can, be adequately addressed by adjusting the length of the various consecutive sentences, if necessary.

[91] Clearly sentences for breaches of orders of the court ought to attract consecutive sentences, to be adjusted, if and as necessary, by the totality and proportionality principles. Here, Crown counsel requests a one-year sentence on the breach of prohibition offence, to be served concurrent to three consecutive one-year sentences for the breach of the firearms prohibition orders. Counsel for the defence accepts that consecutive sentences may be called for in such circumstances but calls for shorter sentences.

[92] Finally, Mr. Mohamed was convicted of using an imitation firearm while committing an indictable offence pursuant to section 85(2) of the Code which has a maximum sentence of 14 years. Section 85(4) requires consecutive sentencing of offences arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed.

(iii) Aggravating and Mitigating Factors

[93] In Crown counsel’s submission, Mr. Mohamed is the worst type of offender because his alleged persistent pattern of violence and disregard for all forms of authority is said to increase his moral culpability and significantly increase the risk to the victim and community. These allegations of pattern, violence and victim and community risk suggested to me that Mr. Mohamed could potentially have been put before the court as a suitable candidate for a dangerous offender application. In the exercise of its prosecutorial discretion, however, the Crown has instead requested a very lengthy traditional sentence on the offences themselves, and delayed parole eligibility. Crown counsel submits a list of factors she claims are aggravating and that justify the imposition of her recommended sentence of 22 years imprisonment, before credits. I will have comments below on the global sentence sought, but before setting out my findings on the Crown’s list of claimed aggravating factors, I reminded myself of the law and burden of proof that applies to determine whether a fact can be found to be aggravating.

[94] That issue arises on this sentencing hearing because I must determine whether all the factors that are claimed by Crown counsel to be aggravating can be accepted by me as aggravating factors in determining sentence. The issue is addressed in ss. 724(3) of the Code which applies where there is a dispute with respect to any fact that is relevant to the determination of a sentence. Evidence can be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial. The burden of proof lies on the party asserting a fact. Subparagraphs (d) and (e) describe the burden of proof:

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. (Emphasis added)

[95] The application of section 724 has attracted appellate comment in several cases, including R. v. Angelillo, 2006 SCC 55, at para. 32, and R. v. Graham, 2020 ONCA 692, at para. 26, but it is in R. v. Larche, 2006 SCC 56, 43 CR (6th) 1, where the Supreme Court succinctly explains the need for the rule. At para. 44 in Larche, the court instructs:

44 The requirement in s. 724 of proof beyond a reasonable doubt is imperative in light of the presumption of innocence, which applies to all alleged offences. The finality of s. 725(1)(c) is to increase punishment on the basis of an uncharged offence. Where the offender disputes his guilt of that offence, the presumption of innocence applies.

[96] Allegations of aggravating factors may be made based on facts specifically proven at trial, or in relation to factors that are not proven to the criminal standard in the trial itself but are nevertheless said to be proven based upon other alleged external conduct or actions of the offender. If such factors are proffered to support an increased sentence, they must be accepted as proven to the criminal standard. On the other hand, since the offender is entitled to the benefit of mitigating factors, factors advanced in mitigation of sentence need only be accepted on a balance of probabilities.

[97] The Crown put forward seven aggravating factors relating to the background of the offender (i) his criminal record; (ii) his violation of three firearms prohibition orders and a probation order; (iii) he was not licenced to drive or possess firearms; (iv) his claimed ungovernable institutional misconduct; (v) his conduct during the trial and possible witness interference; (vi) his absence of remorse and accountability; and finally, (vii) his alleged gang associations.

[98] In relation to the nature and gravity of the offences, Crown counsel put forward six further alleged aggravating factors: (i) use of a firearm in a series of violent offences; (ii) the alleged “domestic context”; (iii) the timeline of the offences; (iv) the serious circumstances of the offences; (v) the offender’s claimed callous disregard and persistent targeting of the victim; and finally, (vi) the endangerment of the public.

[99] Finally, the impacts of these offences on the victim and the community are advanced as important aggravating factors. I address each in turn.

(a) The background of the offender

(i) Criminal Record, and Breach of orders: Items (i), (ii), and (iii)

[100] Mowlid Mohamed has a criminal record dating back to 2016 and has been convicted three times, in 2016, 2018, and 2019, of Fail to Comply – Recognizance; of Assault (2016); and of Trafficking Cocaine (2019). Certainly, the most serious of his criminal antecedents are the two firearms related offences arising in 2019: Possession of a Loaded Firearm and Carry Concealed Weapon (Firearm). While it is a record that is not notably lengthy, it does betray an increasing level of dangerous unrestrained conduct leading forward to the predicate offences.

[101] In addition, however, at the time of the commission of the offences in this case, Mowlid Mohamed was on probation and bound by three firearm prohibition orders, and a probation order. As well, the offender’s driving licence was suspended at the time of the driving incident, and not surprisingly, he did not possess a licence to possess a firearm. However, in context, I find these last two factors add little if any meaningful weight to the overall aggravation and would note that he was convicted of brandishing an imitation firearm because there was no proof it was an actual firearm. In those circumstances there was no proof a licence was required.

[102] Plainly, Mr. Mohamed’s criminal record is generally aggravating, and his commission of these offences while bound by those prohibition orders, particularly the December 19 offences, is particularly aggravating. Those offences call for consecutive sentences.

[103] While these items are aggravating, I also note that even if not a first offender, Mr. Mohamed is youthful. He has not previously been sentenced to a significant penitentiary sentence. That issue is also relevant to Crown counsel’s request, addressed below, for the offender to be ineligible for parole until he has served half of his sentence.

(ii) Institutional Misconduct

[104] Crown counsel submits that during his incarceration, Mowlid Mohamed has committed a series of offences while at the Toronto South and Toronto East detention centers. A chart was filed summarizing the misconduct reports, charges and sanctions received by Mr. Mohamed in respect of these matters. In total Mr. Mohamed has sixteen misconduct reports and two separate sets of criminal charges for a total of 18 incidents. The most recent occurred on January 24, 2024, and has not yet been litigated.

[105] In total Mr. Mohamed has received 157 days of jail and/or closed confinement for his various offences. Further he was placed on probation for 12 months following a serious and violent group assault. Crown counsel contends these occurrences display “a pattern of violence and disregard for authority” even while incarcerated, and “demonstrate a consistent propensity for violent and defiant behaviour.” He is alleged to have contributed to dangerous conditions within the pre-trial detention centres, to have verbally and physically attacked nursing staff, correctional officers, and fellow inmates. He has had 16 misconduct adjudications and two separate sets of criminal charges laid arising from his conduct. All these allegations cause Crown counsel to characterize Mowlid Mohamed as an extremely dangerous person.

[106] I accept that Mr. Mohamed’s institutional conduct is a generally aggravating factor. I understand that Maxwell J. regarded Mr. Mohamed as “ungovernable” when his conduct was before her almost two years ago. However, I do not find that the panoply of allegations made here are proven beyond a reasonable doubt for the purposes of ss. 743 such as to create the weight of layer upon layer of specifically aggravating facts.

[107] Some of the institutional offences have been dealt with and he has been penalized. Some of the incidents remain unproven. As Ducharme J. observes at length in his decision in R. v. Marfo, 2020 ONSC 5663, citing a study at paragraph 52, there are also systemic racism factors at play in the institutions that tend to feed institutional misconduct. This is not to suggest all are racially tainted, but certainly some are, nor is it to suggest the offender is not responsible for his conduct, but as in Morris, it provides context. Also, Mr. Mohamed is a serious diabetic. He receives insulin every day several times. Unexpected delays or deviations in receiving his meds can cause his behaviour to become more aggressive or uncontrolled. It is unknown to what extent his medical condition may have contributed to these occurrences

[108] The Crown argued that Mr. Mohamed should not be awarded any credit under R. v. Duncan for the 157 days of penalty he served in confinement or for the other deprivations imposed on him as additional penalties: loss of 34 days of phone privileges; 56 days of canteen; 10 weeks of visits. As a claimed “extremely dangerous person”, it is claimed that his “pattern of regular and serious institutional misconduct” strengthens the need for a lengthy custodial sentence to address specific deterrence. I address this submission further below, but it is enough for the present to repeat that any record of institutional misconduct will be an aggravating factor, but the absence of proof to the criminal standard of a number of these items precludes me from giving them the substantial individual weight sought by the Crown.

(iii) Conduct during the trial and possible witness interference

[109] The defence called Sadia Dirir as a witness. She was once a friend of the victim, but no longer since these events occurred. I found her evidence to be “incredible and unreliable” and concluded that “it contained a number of assertions that the balance of the evidence showed were simply not true. It contained many falsehoods”. Those findings are in my reasons for judgment at para. 247.

[110] Crown counsel submitted on this sentencing hearing that Sadia clearly attended court with the intention to lie to try to assist Mr. Mohamed’s defence. Crown counsel posits that Sadia went from being a close and trusted friend of the victim, to a defence witness alleging that Ms. Abdullahi fabricated a domestic assault, a shooting, and the “driving” incident.

[111] The suspicion of witness interference arose because of contact that occurred between Mr. Mohamed and Ms. Dirir only a few weeks before trial, and because of other evidence of family members seeking to influence the willingness of participants to co-operate with police. At paragraph 251, I wrote:

Moreover, the question of why Mowlid called her just weeks before the beginning of this trial remained unanswered but highly suspicious and troubling to me. In the context of the whole of her denial evidence, and all of the circumstances of community silence, I find that it is more likely that it was an effort on Mowlid’s part to persuade her to come forward and give evidence on his behalf, evidence that he hoped would undermine key aspects of Ifrah’s evidence. (Emphasis added)

[112] In her submissions, Crown counsel asked me to find this to be aggravating, but insofar as I concluded only that such influence was likely during the sentencing hearing, this claim was not proven beyond a reasonable doubt under ss. 743(3)(e) of the Code. While the likelihood remains, I cannot accept this to be aggravating.

(iv) Absence of Remorse and Lack of Accountability

[113] Crown counsel observed that the pre-sentence report reflected a disturbing absence of remorse and complete absence of accountability on Mr. Mohamed’s part. Moreover, it is said that the PSR shows that he continues to be fixated on the victim and blames Ifrah Abdullahi for his legal troubles.

[114] Crown counsel goes on to opine that Mr. Mohamed’s mother, Zahra Saled, is a classic enabler who has reinforced her son’s absence of remorse and accountability, and who believes that the case decided by this court is “race related and police harassment.” She advised the PSR writer that she believes there is a conspiracy between the police and the victim, to frame her son.

[115] The Crown submits that “this” is an aggravating factor and that it is particularly concerning as it relates to the likelihood that Mr. Mohamed’s “fixation on the victim”, and complete absence of remorse raises the risk of further retaliation against the same victim in the future, and risk to the public. She refers to the PSR writer who also “notes the concerning fact that Mowlid Mohamed appears “fixated” on harming Ifrah Abdullahi”. He goes on to say:

Mr. Mohamed is unable to explain this fixation or express any remorse or insight into this behavior.

[116] In my view, Crown counsel is overreaching in her submission that these expressions of opinion, speculation, and untested beliefs can be found to be aggravating facts, at least to the extent she advances them in support of a “very lengthy penitentiary sentence.” I accept and agree that it is difficult to comprehend how Mr. Mohamed can maintain the position that “nothing happened” in the face of the evidence that was before me. I also agree that Mr. Mohamed needs to be assessed from a mental health and psychological perspective to determine whether there is a cognitive issue, or some type of psychological explanation for the lack of empathy, and remorse. However, in the absence of evidence on this sentencing, there is no cogent basis to assume that there will be a serious risk of future harm and targeting of the victim, requiring a 22-year sentence and parole ineligibility to protect Ifrah Abdullahi and the public.

[117] I find myself more favourably disposed towards the position of defence counsel on the issues of absence of remorse and accountability. He refutes the Crown’s submission that the failure to express remorse is an aggravating factor, or that it belies any belief that Mr. Mohamed can be rehabilitated.

[118] In my view, Mr. Hayworth is correct in his submission that it is not an aggravating factor for an accused who has pleaded not guilty at a trial, who has consistently maintained he is not guilty, but who has been found guilty, to fail to express remorse or to fail to accept accountability. To fail to do so is not an aggravating factor, but the failure to express remorse or accept responsibility does remove what would or could otherwise be a mitigating factor.

[119] An offender can be punished for an aggravating factor, but the absence of an aggravating factor does not assist the offender in claiming mitigation. Secondly, defence counsel takes “a slightly more optimistic view of rehabilitation than my friend does.” The primary principles engaged here are general and specific deterrence and denunciation, but there are glimmers of possible rehabilitation. In counterbalance to the record of institutional misconduct, there is the certified fact that Mr. Mohamed has completed some 20-plus separate courses while he has been in custody. Moreover, Mr. Mohamed has applied for and is confirmed on the waitlist for the Amadeusz program designed to permit offenders who have not completed their high school education to earn their GED or grade 12 diploma. It allows them to complete their high school while in custody by correspondence course.

[120] Defence counsel also makes several important observations, in my opinion, about the sentence Mr. Mohamed will soon be embarking on in the penitentiary. The availability of rehabilitative programs will significantly expand, and he will have the guidance and supervision of his parole officer who will be assigned to assess and recommend programs. He can and should receive psychological treatment based upon being assessed. The inevitable lengthy term he will serve in the penitentiary, even if shorter than what the Crown has requested, will in my view assist with his rehabilitation. Considering these factors, while I acknowledge that deterrence and denunciation are the primary objectives, and that his road to rehabilitation may be a long one, I find myself unable at the present time to write off Mr. Mohamed’s rehabilitation prospects now, before he has had the benefit of a penitentiary sentence with professionals who are able to work on rehabilitation, and before he has been subjected to psychological assessment.

The PSR writer identified the risks that he believes present themselves at the moment in this offender. Nonetheless, the PSR writer also notes that Mowlid Mohamed:

could benefit from...psychological assessments/counselling...so he can come to terms with some of the traumas he has experienced, however it will also be important for him to understand the impact his behavior has had upon the victim so any future risk can be reduced, and her safety ensured

[121] The Crown submits that absent meaningful psychological intervention Mowlid Mohamed presents an ongoing serious risk to Ifrah Abdullahi, and anyone around her and that she will remain in grave danger if he is released from custody. Accordingly, she advances incapacitation also as a primary objective of the proposed sentence.

[122] The reason I find this line of thinking is questionable is because it must be anticipated that Mr. Mohamed will receive meaningful psychological intervention, if for no other reason than I plan to request it as part of my disposition. Whether he benefits from that, will factor into his eligibility for parole, where qualified individuals can carefully assess his circumstances. For the moment however, I am unable to regard Mr. Mohamed as a permanently lost individual, who must be confined in custody for the longest possible term of imprisonment.

(v) Alleged gang membership

[123] Finally, I reject the Crown’s assertion that it is an aggravating factor that “the police have confirmed that Mowlid Mohamed is associated with the street gang “Goonies 2 Mobsters also known as G2M.” Respectfully, it is obvious that absent some proof that would meet the requirements of ss. 743, this suggestion cannot be accepted as an aggravating fact.

(b) The nature and gravity of the offences

[124] In relation to the nature and gravity of the offences, Crown counsel put forward six further alleged aggravating factors: (i) use of a firearm in a series of violent offences; (ii) the alleged “domestic context”; (iii) the timeline of the offences; (iv) the serious circumstances of the offences; (v) the offender’s claimed callous disregard and persistent targeting of the victim; and finally, (vi) the endangerment of the public. In my view, all are relevant, but some overlap, and they are discussed together, in aggregate.

[125] Mowlid Mohamed was convicted of committing a series of violent firearms offences. His choice to continue to resort to the use of firearms despite being prohibited by three separate weapons prohibitions and a probation order is a significantly aggravating factor.

[126] Regarding the unacceptable use of firearms in our communities Justice Goodman, in R. v. Stephens, above, wrote at paragraphs 31-32:

31 Courts in Ontario have emphasized the evil of firearms within our communities. As Harris J. wrote in R. v. Kawal, 2018 ONSC 7531, at para 11:

Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it, "Gun-related crime poses grave danger to Canadians." R. v. Nur, 2015 SCC 15, per Chief Justice McLachlin, at para. I, see also Justice Moldaver in dissent, at para. 131 and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28. The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

32 It has long been recognised that deterrence and denunciation must be given primary effect in sentencing for firearms offences. In R. v. Danvers, (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77, the Ontario Court of Appeal wrote:

Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns . . . Society must be protected from criminals armed with deadly weapons.

[127] Campbell J., amongst many, discussed the appropriateness of significant penal consequences for firearms offences when combined with other indicia of criminality in R. v. St. Clair, 2018 ONSC, at para. 47. Despite repeated attempts to convey society's repudiation of firearms offences, the possession and use of illicit firearms continues to be a pervasive problem in Ontario, requiring ongoing denunciation. When firearms are utilized in public, it is not surprising that their impact can be traumatizing to victims and witnesses alike.

[128] Crown counsel asserts that the offences in this case occurred in a broader context of “domestic” violence, however, I disagree to the extent that I find that this assertion does not engage the statutory aggravation direction relative to domestic circumstances as contained in ss. 718.2(a)(ii) of the Code. That said, plainly Mr. Mohamed has now attacked the same victim, his wife’s cousin, on three separate occasions involving the use of a real or imitation firearm and has been convicted of the latter two incidents. This is a significant aggravating factor that warrants a significant penitentiary sentence. Only a significant penitentiary sentence of at least 11 years under the Bellisimo principles can properly address the predominant need for denunciation, deterrence, and protection of the victim and the public.

[129] The timeline of the offences is an aggravating factor in this case. Mowlid Mohamed received a jail sentence for possession of a loaded Glock following the 2018 “domestic” incident. He completed his sentence in October 2019. Less than two months later he encountered Ifrah Abdullahi at the party at 127 Hazelwood and fired four shots at her. Less than one month after that he intentionally rear-ended her vehicle while brandishing an imitation firearm at her causing her to enter into a head-on collision with a vehicle in the oncoming lane.

[130] In my view, however, whether Mr. Mohamed has an obsessive fixation on the victim in this case cannot be determined beyond a reasonable doubt, absent some cogent evidence. Nevertheless, the simple fact that he pursued the same victim in both occurrences is aggravating due to the element of repetition. I accept that his calls for a sentence that will protect Ms. Abdullahi for as long as is reasonable in all the circumstances.

[131] The risks caused to public safety by the commission of these offences is also an aggravating factor. The offender fired several rounds from a position in the middle of the street in a residential neighbourhood with the knowledge that partygoers, including his wife, remained inside the residence, with people also on the front lawn outside of the party. He knew that because he had left the party shortly before the shooting and was fully aware of the presence of people and the danger his conduct created for them. He was not impaired which means that his decision to shoot at the house party and at Ifrah was done with a clear operating mind, even if evidently not rational.

[132] His callous disregard for the residents and sanctity of what had until then been a quiet midtown Toronto residential community is certainly aggravating. His callous disregard for the safety of pedestrians on Weston Road as the driving incident occurred is also an aggravating fact. Most disconcerting of all, his callous disregard for the victim in this case is a strongly aggravating and concerning factor, having regard to the circumstances as a whole.

[133] The final but weighty aggravating factors are the impact of these events on Ms. Abdullahi, and on the residents of Hazelwood Avenue. Those impacts are described in detail above. It is plain and obvious from the impact statements provided by both Ms. Abdullahi and the owner of 127 Hazelwood Avenue that the impact of these occurrences has been substantial in their lives and is aggravating.

(iv) Should a “half parole order be made under s. 743.6 of the Code?

[134] Crown counsel’s overriding submission in relation to the sentencing of this offender focuses on its perceived need to incapacitate Mr. Mohamed and separate him from society to protect the public and the victim from future harm. On that basis, she, calls for the imposition of a significant penitentiary sentence, frankly the longest possible penitentiary sentence short of an indeterminate or life sentence. The Crown believes that the sentence it has proposed gives fair effect to these purposes and principles of sentencing.

[135] The last component of the Crown’s effort to ensure that Mr. Mohamed will remain incarcerated for the longest time possible, is its request for a “half parole” order pursuant to s. 743.6 of the Code. Crown counsel ask me to consider the decision of this court in R. v. Ranhotra, 2018 ONSC 2563 and the specific factors set out in that case, which she contends, as applied to this case, warrant the imposition of this order. At para. 3 of that case, Then J. states as follows:

3 The Supreme Court in R. v. Shropshire 1995 CanLII 47 (SCC), [1995 CarswellBC 906 (S.C.C.)] has instructed that “an increase in parole ineligibility is not confined to exceptional or unusual cases and must necessarily be a fact-specific exercise.” The Court has also held that the principles of sentencing outlined in s.718 of the Criminal Code should also be considered in the context of the factors outlined in s.745.4 of the Criminal Code. Those principles include the following:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct,

(b) to deter the offender and other persons from committing offences,

(d) to assist in rehabilitating offenders,

(e) to provide reparations for harm done to victims or to the community, and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

4 Also, the ultimate period of parole ineligibility will be influenced by a consideration of both aggravating and mitigating factors.

[136] Importantly, however, in Shropshire as in Ranhotra the question was not whether a half-parole order ought to be made under s. 743.6 of the Code, but rather, as Iacobucci J. expressed it,

whether a period of parole ineligibility of longer than 10 years should be awarded for an individual convicted of second-degree murder?

[137] Under s. 744 of the Code, a conviction for second degree murder already entails the imposition of a period of parole ineligibility of at least 10 years. Parole ineligibility on a conviction for second-degree murder is an inherent element in the sentence itself, not an accessory sought to increase the level of punishment by imposing a period of parole ineligibility which would not otherwise be part of the sentence imposed. While some of the considerations may be and are the same, it is not the same circumstance involved in the determination of the different question of whether an order of “half-parole” should be made under s. 743.6 in the case of Mr. Mohamed.

[138] The question is different under s. 743.6, as Daley J notes in R. v. Gill, 2011 ONSC 2598, [2011] O.J. No. 1950, where, having determined the sentence to be imposed, he then turned to consider the Crown's further request that the offender's parole eligibility be delayed pursuant to s. 743.6 of the Code. Unlike the cases referenced by Crown counsel, Gill involved a conviction for manslaughter, not second-degree murder, where Daley J. considered the question whether to order delayed parole eligibility after imposing a sentence of 10 years.

[139] At para 72 of his decision, Daley J. refers to R. v. Zinck, 2003 SCC 6, at paras. 32, where LeBel J. describes the proper factors that are to be examined when considering a Crown request for delayed parole eligibility. It is undisputed, however, that a parole ineligibility order under ss. 743.6 should only be invoked as an exceptional measure where the Crown has satisfied the Court on clear evidence, then an increase in the period of parole eligibility is required. LeBel J. referred on this point to Griffiths J. A. in R. v. Goulet, 1995 CanLII 1198 (ON CA), [1995] O.J. No. 340 (Ont. C.A.), at paras. 11 and 17, where that distinguished jurist provided guidance on the limited circumstances in which an order under then section 741.2, now s. 743.6, should be made:

11 Section 741.2 clearly operates as an exception to the general statutory provision governing parole eligibility and contemplates a further restriction on the offender's liberty beyond that which normally flows from the prison term imposed by the sentencing judge. An order made under s. 741.2 restricting eligibility for parole increases the punishment imposed by the sentence in a very real way. In making an order under s. 741.2 increasing parole ineligibility the sentencing judge is looking into the future and declaring that the offender should not even be considered for parole during some part of what would otherwise be his or her period of parole eligibility. A section 741.2 order pre-empts the normal role of the Parole Board during the added period of parole ineligibility and replaces the case-by-case exercise of that expert tribunal's discretion with an absolute order made years before the effect of that order is felt. Both the nature and effect of an order made under s. 741.2 suggest to me that the section should not be invoked routinely.

17 In my view, s. 741.2 should only be invoked as an exceptional measure where the Crown has satisfied the court on clear evidence that an increase in the period of parole ineligibility is "required". There should be articulable reasons for invoking s. 741.2 and, as suggested in R. v. Dankyi, supra, the trial judge should give clear and specific reasons for the increase in parole ineligibility. (Emphasis added)

[140] In Gill, the court had before it for sentencing an individual, superficially not unlike Mr. Mohammed, who ignored court orders, carries a gun, and dealt drugs. In that case, unlike here, however, there was specific evidence put before the Court on sentencing from the renowned expert forensic psychiatrist, Dr. Gojer, but even he was uncertain about the offender’s prospects for rehabilitation or the potential risks of him re-offending. At the end of the day in that case, at para. 76, Daley J. further quotes from para 31 of Justice LeBel’s reasons in Zinck:

31 At this stage, having given priority to the factors of deterrence and denunciation as required by law, and having duly considered all the criteria and principles relevant to sentencing, based on the evidence at the sentencing hearing and at trial, the court must arrive at its conclusion as to whether this additional punishment is required. The prosecution has the burden of demonstrating that it is. The judge must satisfy himself or herself that the order is needed to reflect the objectives of sentencing, with awareness of the special weight ascribed by Parliament to the social imperatives of denunciation and deterrence. Nevertheless, at the end of this intellectual process, the sentencing decision must remain alive to the nature and position of delayed parole in criminal law as a special, additional form of punishment. Hence it should not be ordered without necessity, in a routine way. This idea is acknowledged by Griffiths J.A. in Goulet (p. 65). It is this aspect of s. 743.6 that explains the development of the jurisprudential current emphasizing its exceptional nature. The other stream of jurisprudence, which shies away from using the vocabulary of an “exceptional measure”, does not seem, in practice, to have applied s. 743.6 in a different manner. None of these judgments has suggested that a delayed parole order should be considered an ordinary measure, to be applied in the normal course; they agree that it should be invoked only on the basis of demonstrated need.

[141] In my view, as Daley J. found in Gill, the Crown has not established that Mr. Mohamed’s circumstances are exceptional so as to give rise to a demonstrated need for additional punishment in the form of delayed parole eligibility. While the offender has been found guilty of several very serious offences which he committed at a time when he was in breach of prior court orders, in my view, the sentence imposed adequately addresses the sentencing objectives. Further, there is no clear and convincing evidence that demonstrates that he will not be deterred or rehabilitated within the normal period before parole eligibility.

(v) Credits for pre-sentence custody under R. v. Summers and R. v. Duncan

[142] An offender like Mr. Mohamed being sentenced today to a penitentiary sentence may have his sentenced reduced on account of time already spent in custody on the charges. The reduction has two components and follows a formula. The offender receives credit of 1:1 for the total number of days in pre-sentence detention. However, an enhanced credit under R. v. Summers may be granted where the offender can show that they had some deprivations that were available to those who were serving sentence. Section 719 of the Code sets a statutory cap on Summers credit, to a maximum of 1.5:1. Over the years since 2010, it has become the norm to award Summers credit without specific evidence being presented, but rather on the basis that the absence of rehabilitation oriented programs in detention facilities is sufficiently well known and recognized that the credit will be granted as a matter of course.

[143] Beyond Summers credit, is the potential availability of “credit” under R. v. Duncan: This credit can be added in addition to 1.5:1 basis credit and will potentially be available where the offender can show that he was subject to “particularly harsh” pre-sentence custody conditions. Unlike Summers credit, however, Duncan credit is treated as a mitigation to sentence and is not mathematically determined on a ratio basis: see Duncan at para. 6; R. v. Marshall, 2021 ONCA 344, per Doherty J.A. Duncan credit is intended to address the presence of “exceptionally punitive conditions” that go beyond the “normal restrictions associated with pretrial custody.”

[144] With the continuing deterioration of conditions in pre-trial detention facilities, particularly at the Toronto South Detention Centre where this offender has largely been detained, the awarding of Duncan credit has in numerous recent cases been used by sentencing judges to communicate their disapproval of the "inhumane" treatment of detainees: see R. v. Persad. 2020 ONSC 188. Very restrictive conditions, COVID-related health risks and excessive days of detention in total lockdown are examples of circumstances that have given rise to “Duncan” credit: Marshall, above at para. 50.

[145] Summers credit is not contested in this case. Mowlid Mohamed was arrested on January 14, 2020, and has been detained in custody since that date. As of the sentencing hearing on April 4th, 2024, a total of 1543 actual days of pre-sentence custody had been served. The parties agree that Mr. Mohamed is entitled to Summers credit, of 1.5:1. As of the sentencing hearing on April 4, 2024, Mr. Mohamed would have been entitled to 772 days of Summers credit for a total enhanced credit of 2315 days of pre-sentence custody.

[146] Extended to today’s date, June 19, 2024, Mr. Mohamed has served an additional 84 days of pre-sentence detention so the total days of detention increases to 1627 days. In the result, to today’s date Mr. Mohamed will receive pre-trial detention credit under R. v. Summers, of 2440 days, that is 6.6 years, or six years, seven months and 9 days.

[147] Turning to his potential entitlement to Duncan credit, up to April 4, 2024, the first date of submissions, 568 of the total of 1543 detention days were in full lockdown. That amounts to 4.2 years in detention, with almost 20 months in full lockdown. During most of this time, Mr. Mohamed was being held at the TSDC where the proportion of full lockdown days was substantially higher than at the Toronto East and the Central East Detention Centres. I do not have institutional data for the number of lockdowns in the past 84 days, so for simplicity I have assumed and applied the same percentage of lockdown days as occurred before April 4, which I fix at 31 additional days for total lockdown time of 599 days.

[148] Crown counsel’s position is that Mr. Mohamed is entitled to little if any credit beyond the statutory credit. The Crown concedes that some amount of additional Duncan credit may be appropriate to reflect the additional hardship caused by lockdowns, as well as challenges faced during the initial phase of the COVID 19 pandemic, but she also argued that Mr. Mohamed’s institutional misconduct should deprive him of or cause me to give minimal consideration to this mitigating factor.

[149] As I have explained above, I do not entirely accept this position. In Stephens, above, Goodman J. awarded the offender a year of mitigation despite his own negative circumstances, akin to Mr. Mohamed’s. Moreover, I find it ironic that the credit for very restrictive conditions, COVID-related health risks and excessive days of detention in total lockdown should be denied when it is arguably those very conditions, along with conflict with corrections officials that may underlie at least some of Mr. Mohamed’s alleged misconducts. In my view, Mr. Mohamed should receive a component of 9 months of Duncan credit as a mitigating factor in determining sentence, after being reduced by the 157 days he spent in confinement for institutional misconduct.

(vi) Conclusions on the fit sentence for this offender

[150] I engaged in a careful review of sentence ranges in relation to the shooting incident because in my view the appropriate range for the shooting incident remains largely as set out in Bellisimo, although in this case the moral culpability of the offender calls for a sentence at the top of, or even just above the top of that range. In Patten and James, only three months ago, Crown counsel in that case “reluctantly”, but correctly in my view, advocated for a sentence of 12 years, reduced from her original proposal of 14 years based on totality and proportionality principles. In my opinion, a total sentence of 12 years, just above the top of the Bellisimo range better reflects what would be appropriate in this case for the firearms offence. I find the maximum sentence sought of 14 years is and would be excessive. Even if I agreed it was suitable as a starting point, it is plain to me that principles of proportionality and totality would demand that it be modulated.

[151] The sentences for the other offences embraced in the shooting incident are set out below, but all are to be served concurrent to the 12-year sentence on the s. 244 offence of discharging a firearm with the intent to wound or endanger the life of Ms. Abdullahi.

[152] Turning to the driving incident, I find that the appropriate global sentence for those offences as a group is four years and 6 months. I allocate two and a half years to the offence under s. 267(1) of assault with a weapon, to wit a motor vehicle, because, as I have explained, I have found that to be the principal cause of bodily harm to Ms. Abdullahi.

[153] As a result of this conclusion, I have found the possession and brandishing of the imitation firearm and the dangerous driving to be secondary to the principal offence of assault using a motor vehicle as the weapon. I would impose a sentence of 2 years consecutive for the use of the firearm as required by ss. 85(4) and 2 years concurrent for the possession of that imitation firearm. I have determined, under R. v. Keinapple, to stay the conviction on Count 13 on the basis that I cannot distinguish that alleged offence from the principal offence of assault using a motor vehicle as the weapon. I find, as a practical matter, that there are no different or separate delicts that require recognition on sentence for the driving incident.

[154] Turning finally to the appropriate sentences for the four fail to comply offences, as indicated above, those offences must receive consecutive sentences. However, I have borne in mind that the Court of Appeal recognized in McCue that totality concerns can be adequately addressed by adjusting the length of the various consecutive sentences, if necessary. I have adjusted the lengths of the three consecutive sentences in this case on that basis to recognize that while all involved breaches of prohibition orders relating to firearms, each of the three orders breached were of different duration, and thus the moral culpability on each is somewhat different. As a result, in reverse order, I allocate 1 year to the breach of the lifetime prohibition order, and 9 months to each of the second and first of the earlier orders, for a total of 2 years and six months.

[155] In concluding that an overall global sentence less than that called for by Crown counsel is nevertheless fit in this case and in these circumstances, I have also taken account of Morris factors that are applicable here, in the context of proportionality, remembering that the purpose is not to excuse the conduct, but rather to balance between deterrence and denunciation, moral culpability, and the rehabilitative prospects of the offender.

[156] I have previously referred to the circumstances of the offender in the pre-sentence report and counsel’s submissions, including the need to reside in a difficult neighbourhood that experiences a lot of crime, where the environment is damaging, and that had an impact on them and an impact on their children.

[157] Mr. Mohamed experienced racism early while at school because of the colour of his skin, and visible cultural differences, like the wearing of the hijab by his mother and many members of his community. He experienced systemic racism when investigated by police, on one occasion regarding a vehicle he had purchased which they suspected was stolen. The lasting impression left on Mr. Mohamed was that this was race-related, because majority black communities and other people of colour have time and again seen police investigating something harmless simply because the persons involved were black. Whether true or not, it is understandable that Mr. Mohamed would have become acculturated to the attitude of police towards him, being one of suspicion, and distrust. Moreover, Mr. Mohamed had the unimaginable experience of seeing close friends being shot and die in front of him, and of having been hit by a car, having been stabbed, and not knowing whether those acts of violence were intended for him or somebody else.

[158] In my view, while Mr. Mohamed’s family and home background was arguably less difficult than that experienced by others, like the offenders in R. v. Patten and James, above, in contrast, those offenders did not have direct encounters with the violence of his community like he did.

[159] Nevertheless, like P. Campbell J. in R. v. Tabnor, 2021 ONSC 8548, I find that the social context evidence which I have accepted does provide some understanding of the life antecedents of Mr. Mohamed and does support a slightly lower level of vilification and condemnation than would be the case for a person who grew up in circumstances less shaped by economic difficulty, and racial bias and its consequences.

[160] Knowing Mr. Mohamed’s history and the milieu in the Rexdale area of Toronto in which he came of age, I conclude that the position he now finds himself is the product of many antecedents. Mr. Mohamed’s own individual prior choices and his conduct in these offences is reprehensible, displaying major moral failings and major errors in judgment that are virtually impossible to understand or explain in any rational way and that do deserve society’s condemnation.

[161] However, the blame to be assigned to him cannot be wholly separated from the setting in which he grew up and made those choices and that setting cannot be separated from the history of systemic racism which has played a part in shaping his life. In my mind, the presence of Morris factors in this social context provides further reason to support my decision to resist imposing the maximum possible sentence.

7. Conclusions and ancillary orders

[162] As I have emphasized, sentencing is an individualized process, and my duty is to impose a sentence on Mr. Mohamed that is just and appropriate in these circumstances. After much thought, I have concluded on what I find to be an appropriate and fit sentence for Mr. Mohamed, before credit, namely a global sentence of 18 years and 9 months. After reducing that total sentence by 1 year and 8 months for Duncan credit and Morris factors and taking account of the principles of totality and proportionality, the net global sentence I find fit and appropriate in all the circumstances, before Summers credit, is 17 years and 1 month.

[163] The allocation of the sentence components between the counts, based upon the global sentence of 18 years and 9 months is reflected on the attached schedule.

[164] Mr. Mohamed, please stand up.

[165] After giving you further credit under Summers for pre-sentence custody you have served of 2440 days, that is, six years, seven months and 9 days, applied to the net global sentence of 17 years and 1 month, the balance of sentence that you will be required to serve is 10 years, 3 months and 21 days.

[166] Based upon the decisions in R. v. Zarb (10 years) and R. v. Balcha (5 years), in your circumstances I find that the half-way point, that is, a mandatory driving prohibition of seven years from the time of your release is appropriate and will be imposed.

[167] As I have said, I cannot emphasize too strongly my belief and request that Mr. Mohamed needs to be assessed from a mental health and psychological perspective to determine whether he has cognitive issues, or mental health or psychological issues that require treatment during the term of his sentence to hopefully provide some explanation for his evident lack of empathy, and remorse in relation to these offences.

[168] Because you have been convicted of an indictable offence involving the use of violence that is punishable by imprisonment for 10 years or more, it is mandatory that I impose a mandatory firearms possession prohibition order under s. 109(1)(a) of the Code, and in the circumstances of this case, I direct that the prohibition be for life.

[169] Since discharge firearm with intent is an offence listed in paragraph (a) of the definition of “primary designated offence” in s. 487.04 of the Criminal Code, a DNA order is also mandatory. Pursuant to s. 487.051(1), I authorize the taking of the number of bodily samples reasonably required for the purpose of forensic DNA analysis and historical recording.

[170] An order will also go under s. 743.23 of the Code ordering that you have no contact with Ifrah Abdullahi during the term of your sentence.

Thank you. Those are my reasons for sentence.

Order accordingly.

Released: Wednesday, June 19, 2024

COURT FILE NO.: CR-20-5-0000-448

DATE: 20240619

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

and –

MOWLID MOHAMED

Defendant

REASONS FOR SENTENCE

Michael G. Quigley J.

Released: June 19, 2024

R v. Mohamed, 2024 ONSC 3462

Case Summary

Overview

Findings of fact

Circumstances of the Offender

Victim and community impact

Positions of the Parties

5. Legal Principles

(i) Principles and Purposes of Sentencing

(ii) Principles of sentencing a youthful offender

6. Analysis

(i) Findings on Appropriate Range

(a) The shooting incident:

(b) The driving incident offences

(ii) Consecutive sentencing for fail to comply offences

(iii) Aggravating and Mitigating Factors

(a) The background of the offender

(i) Criminal Record, and Breach of orders: Items (i), (ii), and (iii)

(ii) Institutional Misconduct

(iii) Conduct during the trial and possible witness interference

(iv) Absence of Remorse and Lack of Accountability

(v) Alleged gang membership

(b) The nature and gravity of the offences

(iv) Should a “half parole order be made under s. 743.6 of the Code?

(v) Credits for pre-sentence custody under R. v. Summers and R. v. Duncan

(vi) Conclusions on the fit sentence for this offender

7. Conclusions and ancillary orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legal Tests 4

Legislation 1

Overview

Findings of fact

Circumstances of the Offender

Victim and community impact

Positions of the Parties

5. Legal Principles

(i) Principles and Purposes of Sentencing

(ii) Principles of sentencing a youthful offender

(iv) Principles relating to social context – Morris factors

6. Analysis

(i) Findings on Appropriate Range

(a) The shooting incident:

(b) The driving incident offences

(ii) Consecutive sentencing for fail to comply offences

(iii) Aggravating and Mitigating Factors

(a) The background of the offender

(i) Criminal Record, and Breach of orders: Items (i), (ii), and (iii)

(ii) Institutional Misconduct

(iii) Conduct during the trial and possible witness interference

(iv) Absence of Remorse and Lack of Accountability

(v) Alleged gang membership

(b) The nature and gravity of the offences

(iv) Should a “half parole order be made under s. 743.6 of the Code?

(v) Credits for pre-sentence custody under R. v. Summers and R. v. Duncan

(vi) Conclusions on the fit sentence for this offender

7. Conclusions and ancillary orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legal Tests 4

Legislation 1