Court File and Parties

COURT FILE NO.: CR-23-1000373 DATE: 2024-10-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – Ahmed Noor, Defendant

Counsel: David Smith, for the Crown Harval Bassi, for the Defendant

HEARD: September 20, 2024

REASONS FOR SENTENCE

NISHIKAWA J.

Overview and Background

[1] On February 22, 2024, following a judge-alone trial, Mr. Noor was found not guilty of the offence of intentionally discharging a firearm with intent to endanger the life or safety of another person but was found guilty of unlawful possession of a loaded handgun, unlawful possession of a firearm while being prohibited from doing so, breaching a prohibition order and failing to comply with bail: R. v. Noor, 2024 ONSC 1108. The only issue at trial was whether the Crown had proven beyond a reasonable doubt that Mr. Noor did not act in self-defence when he discharged the firearm. I found that the Crown did not meet its burden.

The Circumstances of the Offences

[2] The circumstances of the offences are described in detail in my Reasons for Judgment. I will reiterate only the most salient aspects here, as they pertain to determining the appropriate sentence.

[3] On August 27, 2021, Mr. Noor, was involved in a physical altercation with an unidentified male (Male 1) in the middle of Bathurst Street, just north of Stewart Street, in Toronto. Mr. Noor produced a handgun and fired multiple shots toward Male 1 and his associate (Male 2) on the west side of Bathurst Street. Mr. Noor then fled. He was found a short distance away by a passerby and was taken to the hospital. He had suffered two gunshot wounds.

[4] A semi-automatic handgun was retrieved from a garbage bin near where Mr. Noor had been found. The firearm is a prohibited firearm as defined in s. 84 of the Criminal Code. The magazine and chamber were empty when discovered and seized by police.

[5] At trial, Mr. Noor testified that he grabbed the firearm from one of the other males with whom he had the altercation. In the pre-sentence report PSR, Mr. Noor admitted that he had the gun for about a week and went out with it that night.

[6] At the time, Mr. Noor did not possess any firearms licences. Mr. Noor was subject to two s. 109(3) orders prohibiting him from possessing weapons at the time. First, he was subject to a 10-year prohibition order pursuant to s. 109 of the Criminal Code imposed on June 2, 2017 by Westman J. of the Ontario Court of Justice after a conviction for armed robbery using a firearm. Second, Mr. Noor was subject to a recognizance of bail dated June 11, 2020 that included house arrest, an absolute prohibition on being outside his residence between 11 p.m. and 6 a.m. unless he was working with his surety, and a weapons prohibition.

The Circumstances of the Offender

Criminal Record

[7] At the time of this offence, Mr. Noor had a conviction for armed robbery using a firearm on June 2, 2017 for which he received a sentence of three years in prison. On November 30, 2020, he was convicted for assault in relation to an assault while in an institution, and received a sentence of 15 days.

[8] On November 4, 2022, Mr. Noor pled guilty to dangerous operation of a conveyance and flight from police. Justice Martins of the Ontario Court of Justice sentenced him to 70 days in custody after giving him 230 days credit for 115 days spent in presentence custody, for an effective sentence of 10 months in jail. He is prohibited from operating a motor vehicle for three years.

The Pre-Sentence Report

[9] The defence initially took the position that an enhanced pre-sentence report was necessary in this case. However, because of the delay involved in obtaining one, Mr. Noor eventually indicated that he wished to proceed with sentencing without an enhanced pre-sentence report.

[10] A pre-sentence report (“PSR”) was ordered and was completed on September 17, 2024 by Probation and Parole Officer, Kevin McClelland (the “Officer”). The Officer interviewed Mr. Noor, his mother (Farahia Farah), his older brother (Liiban Noor), and his younger sister, (Zuhur Noor).

[11] Ahmed Noor was born in Kenya and moved to Canada at the age of six months. He is the second of five siblings. Mr. Noor became a Canadian citizen in 2000. Upon coming to Canada, the family first lived in the Dixon Road and Kipling Avenue area of Toronto before moving to Humber Boulevard when Mr. Noor was six years old. Mr. Noor stated he has limited memories of living in the Dixon and Kipling area and noted he mainly remembers a sense of community but also that it was a dangerous area with gun violence and robberies.

[12] Mr. Noor stated that the Rexdale area where he subsequently lived would not be considered safe and he was not allowed out after dark. He disclosed that people outside were often “smoking and drinking,” there were “crackheads everywhere” and noted these individuals would frequently break into vehicles. He advised there were numerous “shootings” and reported “everyone had guns” and no one would contact the police for any issues. Mr. Noor then moved to the Rathburn area of Mississauga for approximately one year. He described this area as “all right” but noted there were still many illicit drug users in the area and people carrying firearms.

[13] When he was 10 years old, the family moved to Somalia for one to two years. In Somalia, Mr. Noor was surrounded by poverty and violence. Because of the civil war, he would see people carrying assault rifles. He estimated that he witnessed four people die while he was in Somalia. He also saw people in the community chase a thief through the streets and then beat him to death for stealing. Mr. Noor disclosed that for any misbehaviour, he was subjected to severe physical punishment from his extended family.

[14] Mr. Noor then returned to Canada for three to four years and lived in the Redmond area of Mississauga. He reported there were no issues in that neighbourhood. He then returned to Somalia for a year when he was 15 years old and noted that while the area had improved, major issues remained. Following this, he returned to Toronto and lived in community housing in the Jane and Trethewey area for two years. He described this area as having with significant issues, such as guns, robbing and killing, which were seen as “normal”, and that people were “praised for it.”

[15] Ms. Farah confirmed the family’s movements. She confirmed that Mr. Noor witnessed violence, instability, and extreme poverty, as well as people being killed for stealing, in Somalia.

[16] Liiban Noor also stated that when they were living in Somalia, there was a significant amount of crime, extreme poverty, and many traumatic events. He reported that residing in Somalia had a traumatic impact on him and all of his siblings. [1]

[17] Mr. Noor described his parents’ relationship as “toxic”. They had frequent arguments, which included domestic violence, although he described it as “very minimal.” His father was absent frequently because the parents would separate and then reconcile, and his father was often out of the country on business. Liiban confirmed that their father was in and out of their lives. The parties separated when Mr. Noor was young.

[18] Mr. Noor stated that when he misbehaved, both parents would physically punish him, but he would also be sat down and talked to. He described his childhood mainly positively. He noted that his mother provided for them, he was close with his siblings, and the family would take trips to the beach and play sports.

[19] Mr. Noor stated that his relationship with his mother has improved and his relationship with his father is all right. He has good relationships with his siblings. Mr. Noor is not currently in a relationship and has no children.

[20] Mr. Noor completed the majority of his schooling in Toronto and Mississauga, with the exceptions of grades 6, 10, and 11 which he completed in Somalia. He had an overall positive schooling experience. He graduated from high school and attended university in the Waterloo, ON area for one semester to study business. He left university because he was arrested and charged. Mr. Noor expressed a desire to further his education in the business field.

[21] Mr. Noor has a limited employment history. He worked in construction for approximately seven months following the completion of his federal incarceration and then again from June 2020 until August of 2021. Mr. Noor stated he has never had any issues with drug abuse. He noted that he has an issue with alcohol, which he believed was a major factor in the current offences.

[22] Mr. Noor’s family members describe him as smart, kind-hearted, and family-oriented. Liiban further described him as quiet, friendly, caring and passionate.

[23] In the PSR, Mr. Noor stated that he was carrying a firearm on the day of the offences for protection because “the people I’ve surrounded myself with are dangerous”. Mr. Noor advised the situation could have turned out worse and noted that he was “glad I was the only person hit.” None of Mr. Noor’s family members had any idea why he would need to possess a firearm. They did not think he had safety concerns in the community. They all reported that Mr. Noor has positive friends. Zuhur was the only family member who noted that he had negative peers when he was arrested the first time.

[24] Mr. Noor feels he has been discriminated against by police since he was 17 years of age. At that age, Mr. Noor had his first interaction with police and noted he was pulled over for no reason other than his race and given multiple traffic tickets. Mr. Noor reported he was later arrested for a parole violation where he stated he was surrounded by unmarked police vehicles and plain clothed officers with their weapons drawn and they did not identify themselves. Mr. Noor advised he feels he has received disproportionately harsh sentences in relation to the previous offences because he is Black. Mr. Noor’s family members believe that he has been racially profiled by police in the past, that he has been denied medical care in prison because of his race, and that he has been discriminated against in the current and other legal proceedings.

[25] Mr. Noor stated he has extremely limited mobility and usage of his left arm due to the injuries he sustained in the shooting. Mr. Noor described his experiences while incarcerated and stated that he has received no compassion for the injuries to his arm. Mr. Noor disclosed an incident where he was prevented from contacting his lawyer at a scheduled time and when he advocated this matter to the correctional officers, “four of them came in and beat the shit out of me.” He described an additional incident where he stated a correctional officer assaulted him and fractured his arm.

[26] In the interview for the PSR, Mr. Noor was cooperative with the Officer, who described him as “polite, respectful, and engaged” throughout the process.

Analysis

The Parties’ Positions

[27] The Crown argues that Mr. Noor is an “incorrigible recidivist” and that there are no mitigating factors in this case. The Crown submits that Mr. Noor was able to overcome the traumatic experiences of his childhood, both in Somalia and in disadvantaged neighbourhoods in Toronto, to attend university. He then inexplicably committed serious offences leading to significant periods of incarceration.

[28] The Crown seeks a global sentence of 9 years in prison, before subtracting credit for presentence custody. This consists of 7.5 years for the offence of possession of a loaded prohibited/restricted firearm and 1.5 years to be served consecutively for the three breaches of court orders. The Crown takes the position that 7.5 years lies exactly at the midpoint of the range of 6 to 9 years and is reflective of the aggravating factors in this case. The Crown further submits that 1.5 years is the appropriate sentence for multiple breaches of orders. The Crown also seeks a DNA order and a lifetime weapons prohibition under s. 109 of the Criminal Code.

[29] The defence does not dispute the aggravating factors in this case. However, the defence counters that getting into university did not alter the trauma that Mr. Noor experienced growing up. In his first semester at university, he became involved in an armed robbery that then threw the trajectory of his life off-course and resulted in Mr. Noor spending most of his 20s in custody. Mr. Noor was out custody for approximately two years during this time period.

[30] The defence submits that the sentence proposed by the Crown is excessive, and seeks a sentence of 5 years on the firearm offence and 6 months for the breaches of court orders to be served concurrently, before deducting pre-sentence custody.

[31] The parties agree that Mr. Noor has served 1,035 days of presentence custody. The defence initially argued that if the defence’s submission on sentence were to be accepted, Mr. Noor would be in a time-served position. However, based on the calculations made during the sentencing hearing, it became clear that even if the defence’s proposed sentence was accepted, there would be still 199 days left. As a result, Mr. Noor would not be in a time-served situation.

The Principles of Sentencing

In determining an appropriate sentence, I must consider the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(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;

(c) to separate offenders from society, where necessary;

(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.

Pursuant to s. 718.1 of the Criminal Code, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 40.

[33] The sentencing judge must also have regard to the following:

• any aggravating and mitigating factors, including those listed in s. 718.2 (a)(i) to (iv) of the Criminal Code;
• the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));
• the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and
• the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: s. 718.2(b); R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 29.

The Principles Applied

The Appropriate Range

[34] The Supreme Court of Canada has observed that s. 95(1) of the Criminal Code casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not: R. v. Nur, 2015 SCC 15, at para. 82, aff’g 2013 ONCA 677. For individuals who bring guns into public spaces, a sentence of greater than three years is generally imposed: R. v. Mohaidin, 2021 ONCA 122; R. v. Camara, 2019 ONSC 15, aff’d 2019 ONCA 79. The Ontario Court of Appeal has held that “[m]ost s. 95 offences will attract a penitentiary term.”: R. v. Smickle, 2014 ONCA 49, at para. 19.

[35] The Crown submits that the appropriate range of sentence for recidivist offenders convicted of firearm offences is six to nine years. See, e.g. R. v. McNichols, 2020 ONSC 6499; R. v. Owusu, 2019 ONCA 712; R. v. Slack, 2015 ONCA 94; R. v. Brown, [2019] O.J. No. 2846 (S.C.J.); R. v. Omar, 2015 ONCA 207.

[36] The defence concedes that based on the case law, the sentencing range appears to be from six to eight years. The defence nonetheless seeks a sentence of five years on the firearm offence based on systemic factors and the harsh conditions Mr. Noor has experienced in pre-sentence custody.

[37] Based on the foregoing case law, I find that the appropriate sentencing range for possession of a prohibited firearm by a recidivist offender is from 6 to 9 years. However, in my view, the cases at the higher end of the range involve multiple previous convictions for firearms offences. See, e.g. R. v. Prince, 2020 ONSC 6121. In R. v. Omar, 2015 ONCA 207, the Court of Appeal upheld a sentence of six years for possession of a prohibited firearm and breach of a weapons prohibition where the defendant had previous convictions for possession of a prohibited firearm, possession for the purposes of trafficking, breach of a court order and failure to comply.

[38] In addition, the Crown submits that breach of one prohibition order will typically warrant a one-year jail sentence, whereas a fit sentence for multiple breaches is 18 months: R. v. Carrol, 2014 ONSC 2063, at para. 30.

[39] In R. v. Kabanga-Muanza, 2019 ONSC 1161, however, Spies J. imposed a sentence of one year for breaches of three prohibition orders on the basis that none of the previous orders were made in relation to weapons offences and it was the first time the defendant had breached a weapons prohibition.

[40] The most significant factors to consider in arriving at the appropriate sentence for breaches of firearms prohibition orders are:

(a) The number of firearm prohibition orders to which the offender was bound by at the time of the breach; (a) The number of prohibition orders the offender has breached in the past, if any; and (b) The reason for the prohibition order.

Kabanga-Muanza, at paras. 110-111.

[41] In my view, the range for breach of more than one prohibition order is from 12 to 18 months.

Aggravating Factors

[42] In this case, there are a number of aggravating factors, which the defence did not dispute:

• Mr. Noor has a criminal record for violence and the use of firearms;
• The firearm was a loaded, semi-automatic handgun;
• There is no lawful use for the firearm in question;
• The weapon was carried carelessly and dangerously;
• Mr. Noor carried the weapon in public place. First, in a night club in downtown Toronto and then on a busy public street at a time when many people were out;
• The possession of the firearm was not momentary, it was deliberate and prolonged; and
• At the time Mr. Noor was under house arrest bail for offences committed while on parole and had no lawful reason for being out of his residence.

[43] As the Court of Appeal stated in R. v. Morris, 2021 ONCA 680, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder…. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society. (Internal citations omitted.)

Mitigating Factors

[44] Contrary to the Crown’s submission, I find that there are some mitigating factors in this case.

[45] Mr. Noor essentially admitted the offences by conceding the facts stated in the Agreed Statement of Facts. The trial was focussed on the offence of discharge with intent, and whether Mr. Noor had done so in self-defence. On sentencing, the defence argued that Mr. Noor had always intended to “step up” to the s. 95 offence. While this is true, I would note that at the outset of the trial, the defence conceded only that Mr. Noor’s grabbing of the firearm from one of the other males would be sufficient to find that he had possession of a prohibited firearm. In the PSR, Mr. Noor admitted that he had the gun for about a week and had brought it out with him that night. I am concerned about Mr. Noor’s untruthful testimony at trial. In any event, the issue of possession was uncontested at trial and Mr. Noor has subsequently both fully owned up to the offence and demonstrated remorse. In the PSR, he expressed relief that he was the only one who was shot.

[46] Mr. Noor’s left arm and hand were injured in the shooting and he is unable to use them as he previously did. While Mr. Noor and his family members raised the issue of inadequate medical care at the TSDC, defence counsel conceded that in the absence of any medical records, there is a lack of foundation upon which this court could find this to be a mitigating factor. In my view, the fact that Mr. Noor has been in custody with medical needs and without full use of one arm is relevant context for Duncan consideration, which is addressed further below.

Systemic Factors

[47] The defence requests that this court take into consideration the systemic factors embedded in the criminal justice system that work consistently to the disadvantage of Black men such as Mr. Noor. As noted earlier, there is no enhanced pre-sentence report in this case. This is a reflection of the barriers to obtaining one, which include the length of time that it takes to obtain such a report through Legal Aid and the cost of obtaining one privately. In the absence of an enhanced pre-sentence report I am nonetheless able to take into consideration systemic factors that are likely to have played a role here: R. v. Smith, 2024 ONCJ 396.

[48] In Morris, at para. 102, the Court of Appeal confirmed that social context relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing. Where past hardship including the impact of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. A causal connection is not required: R. v. Ahmed, 2021 ONSC 8157, at paras. 27-29.

[49] Further, in Morris, at para. 81, the social context evidence was found to 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.

[50] In this case, the PSR provides information that is helpful in this analysis. Mr. Noor grew up in disadvantaged neighbourhoods in Toronto where crime and gun violence were prevalent. He was further exposed to violent, traumatic incidents when the family returned to Somalia. He had early experience with racial profiling. I have considered the impact of systemic racism on his behaviour and the connection to the criminal activity with which he was involved. That is a relevant factor in terms of his exposure to gun violence in his community and that he believed he needed a gun for self-protection.

[51] To clarify, I do not find Mr. Noor’s explanation that he had a firearm because he needed it for protection to be a mitigating factor. To begin with, possession of firearms for self-protection is not a mitigating factor: R. v. Powers, 2007 ONCJ 619, at paras. 24-25. Other than stating that the people around him are “dangerous,” Mr. Noor has not sufficiently explained his need for protection. His family members could not think of a reason why Mr. Noor would need for a gun. In addition, as Mr. Noor admitted at trial, he was under house arrest and should not have been out that night.

“Duncan” Consideration

[52] Mitigation can also be given on account of particularly difficult and punitive pre-sentence custody conditions, including extended time spent on lockdown and lack of access to facilities. In determining whether any enhanced mitigation should be given, the court may consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: R. v. Duncan, 2016 ONCA 754, at paras. 6-7. In R. v. Marshall, 2021 ONCA 344, at para. 50, the Court of Appeal found that the “very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a ‘Duncan’ credit.”

[53] In Marshall, the Court of Appeal held that “Duncan credit is not a deduction from an otherwise appropriate sentence, but one of the factors to be taken into account in determining the appropriate sentence”: Marshall, at para. 52. The Court of Appeal has stated that quantifying the Duncan credit in the same manner as the “Summers” credit for pre-sentence custody, which is dealt with further in these reasons, might improperly skew the calculation of the ultimate sentence: Marshall, at para. 53.

[54] The defence submits that Mr. Noor should be given enhanced credit for the entire period of his pre-sentence custody based on the sentencing regime and because of the harsh conditions in which Mr. Noor was held, including lockdowns and restrictions related to COVID and staffing shortages at the TSDC.

[55] The Crown does not dispute that the conditions at TSDC during the pandemic have been particularly harsh, and that the lockdowns created stress and anxiety for Mr. Noor.

[56] The conditions at the TSDC have been described by the courts as intolerable, deplorable and excessively harsh. As Molloy J. put it in R. v. Shaikh, 2024 ONSC 774, at para. 15, the question is not whether some credit should be given, but rather the extent of it.

[57] Lockdown records were available for the period from September 10, 2021 when Mr. Noor stepped into custody to July 4, 2023. The total number of lockdown days was 307 days, or 46.4 percent of the time, meaning that during that period, Mr. Noor was in lockdown for almost half of the time. 95 percent of lockdowns were due to staff shortages. The PSR provides some detail about the impact of pre-sentence custody at the TSDC on Mr. Noor’s physical and mental health.

[58] Because more updated lockdown records were not available for the sentencing hearing, counsel mutually agreed to apply the same ratio of lockdowns for the earlier period to the 14.5 months during which Mr. Noor has been in custody, from July 4, 2023 to September 10, 2024, for an additional 206 days of lockdown. The total number of lockdown days for the entire period of Mr. Noor’s pre-sentence custody is estimated at 513 days. Calculating lockdown days at the same rate of 46.4 percent, from September 11, 2024 to October 31, 2024, there would have been approximately 19 additional lockdown days.

[59] In Shaikh, Molloy J. gave detailed and thoughtful reasons for quantifying Duncan credit notwithstanding the Court of Appeal’s comments in Marshall. I agree with the rationale and could not state it more eloquently. In brief, quantifying Duncan credit lends to greater transparency and consistency in the sentencing process. It also serves the secondary goal of shining a light on the extremely harsh circumstances that accused persons encounter at the TSDC, before there is a finding of guilt: Shaikh, at paras. 23-30.

[60] I am mindful of Doherty J.A.’s caution in Marshall that the quantification of Duncan credit could improperly skew the calculation of the ultimate sentence, in the sense that it could lead to a sentence that is disproportionately or artificially low. In my view, quantification does not lead to such a result in this case. I therefore apply Duncan credit at a rate of 0.5 days for every day of lockdown. In this case, 532 days x 0.5 = 266 days.

Consecutive or Concurrent

[61] As noted above, under the principle of totality, where consecutive sentences are imposed, the combined sentence should not exceed the overall culpability of the offender: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 42. An unduly harsh or excessive sentence may frustrate the goals of the sentencing process and cause confidence in the fairness and rationality of the sentencing process to deteriorate: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 20. At the same time, a sentence should not be overly lenient or unresponsive to other principles underlying the sentencing regime and an offender “ought not to be seen to be reaping benefits from his previous serious criminal misconduct.” Johnson, at para. 23.

[62] The court must balance the need to protect the integrity of the sentencing process against the recognition that “there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive.” Johnson, at para. 24.

[63] Sentences for breaches of prohibition orders are to be served consecutively to any substantive offences. Similarly, two or more separate violations of prohibition orders generally require distinct sentences, unless the principle of totality requires otherwise. The imposition of consecutive sentences is intended to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. It also acknowledges that the breach of a prohibition order is different behaviour than the associated offences, engaging different social interests: R. v. Claros, 2019 ONCA 626, at paras. 51-52.

[64] While the defence argues that the sentence for the breaches of prohibition orders should be served concurrently with the sentence for the firearm conviction, no case law has been provided to support this position. Indeed, this would seem to be contrary to the Court of Appeal’s holding in Claros.

[65] In this case, Mr. Noor was bound by two weapons prohibition orders. The first was imposed when he was convicted for robbery with a firearm in 2017 and the second was imposed when he was on bail. The third breach in this case is a failure to comply with a condition of his release.

[66] In Ahmed, at paras. 50-51, the defendant was convicted of three counts of possession a firearm while prohibited because he was subject to three firearm prohibition orders. Citing R. v. Chambers, 2013 ONCA 680, Schreck J. found that the question of whether the prohibition order sentences should be consecutive to each other is discretionary. To give effect to the principle of restraint, Schreck J. imposed a sentence of six months for the breaches of orders, to be served consecutively to the sentence on the firearm offences but concurrently with each other.

Summary of the Application of the Sentencing Principles

[67] Higher courts have consistently held that the overarching sentencing principle in firearms cases is denunciation and deterrence by the imposition of exemplary sentences: R. v. Nur, 2015 SCC 15, at para. 5; R. v. Brown, 2010 ONCA 745, at para. 14.

[68] The most significant principles engaged in this case are denunciation, deterrence and the separation of the offender from society. At the same time, given the impact of anti-Black racism and Mr. Noor’s personal experiences, my consideration of those objectives must be balanced with a consideration of the objective of rehabilitation.

[69] I am more optimistic than the Crown about Mr. Noor’s prospects for rehabilitation. At 28 years old, he is relatively young and has time to turn his life around. There are circumstances that would lend to his ability to do so. He has strong family support from his mother and siblings. Despite his difficult and disadvantaged circumstances, Mr. Noor gained admission into university, which demonstrates that he can be motivated to overcome challenges and persevere. He has expressed a desire to return to school and continue his studies in business.

[70] In addition, it is likely that the consequences of his criminal conduct in this case have caused Mr. Noor to reflect more deeply than he may have in the past, given the significant price that he has paid. He was shot twice and continues to experience the physical and mental effects of that injury. His statement in the PSR shows that he understands that given the number of bullets that were fired by both sides that night, it is a miracle that no one else was hurt.

[71] Mr. Noor also admitted in testimony at trial that he had no business being out that night and that he was extremely drunk. His statements in the PSR reflect that he has developed some insight into his conduct that night, including breaching the orders and consuming an excessive amount of alcohol, and the consequences of his actions.

[72] Based on all of the circumstances, taking into consideration the gravamen of the offences, as well as the aggravating and mitigating factors detailed above, I find that an appropriate total sentence for the offences is 6.5 years for the firearm offence. While I have determined that a sentence at the lower end of the range is appropriate, I am not satisfied a sentence lower than the applicable range, as the defence has argued, would be proportionate in the circumstances.

[73] Based on the principle of totality and the principle of restraint, I find that an appropriate sentence for the two breaches of the weapons prohibition orders and for failing to comply with a release order is 12 months, to be served consecutively to the sentence for the firearm offence but concurrently to each other, for a global sentence of 7.5 years.

Pre-Sentence Custody

Summers Credit

[74] Under s. 719(3.1) of the Criminal Code, Mr. Noor is entitled to credit for pre-sentence custody at a rate of 1.5:1: R. v. Summers, 2014 SCC 26.

[75] Mr. Noor was arrested on September 10, 2021 and has been in custody since that time. As of the end of the sentencing hearing on September 20, 2024, Mr. Noor spent a total of 1,105 days in pre-trial custody. Since that date, an additional 41 days has passed, for a total of 1,146 days.

[76] However, not all of that time is available to this case as it was used in another disposition. As detailed earlier in these reasons, Mr. Noor received credit for 115 days (70 days x 1.5) spent in presentence custody on offences for which he was sentenced in the Ontario Court of Justice on November 4, 2022. The number of days available is thus 1,076 days (1,146 days – 70). The total Summers credit is 1,614 days (1,076 days x 1.5).

Ancillary Orders

[77] The Crown seeks a DNA order under s. 487.051 of the Code, forfeiture order for all items seized for destruction under s. 491 of the Code, and a s. 109 weapons prohibition order for life. The orders are mandatory in the circumstances and shall be made.

Conclusion

[78] For the foregoing reasons, Mr. Noor is sentenced to 6.5 years on count 2 and 12 months on each of counts 3, 4, and 5, to be served consecutively to the sentence on the firearm offence but concurrently with each other, for a global sentence of 7.5 years.

[79] After subtracting Summers credit (1,614 days) and the time I have allocated for Duncan consideration (266 days), the sentence that remains to be served is 2 years and 4 months (2,737 days - 1,614 days – 266 days = 857 days).

Nishikawa J.

Released: October 31, 2024

[1] At the hearing, defence counsel submitted a news article from a local Mississauga newspaper regarding two of Mr. Noor’s brothers who were sentenced to 10 years in jail, along with 19 others, for a gang rape in Somalia. The article states that they were sentenced within 7 days of being arrested, without a trial. They were eventually released after 18 months in custody. I place no reliance on this article, which is entirely without context. It is unclear when this incident took place because the article has no date. Moreover, no one interviewed for the PSR referenced this incident.