R. v. Hassan, 2024 ONSC 6278

Court File No.: 19-50000259-0000 Date: 2024-11-15 Ontario Superior Court of Justice

Between: His Majesty The King – and – Mohamed Hassan

Counsel: A. Hauk, counsel for the Crown M. Macchia, counsel for Mr. Hassan

Heard: August 22 and September 12, 2024

Reasons for Sentence

H. McArthur J.:

Introduction

[1] Police executed a search warrant at the home of Mohamed Hassan and found a loaded handgun, counterfeit money, and the tools to make counterfeit money. Mr. Hassan was charged with three firearms offences, one breach of a weapons prohibition offence, and three counterfeiting offences. At trial, he admitted guilt on the counterfeiting offences, but argued that the Crown had failed to establish his guilt on the firearms related offences.

[2] For reasons set out in R. v. Hassan, 2023 ONSC 6771, I concluded that the Crown had established beyond a reasonable doubt that Mr. Hassan possessed the firearm and found him guilty of the following offences: Count 1, possession of a loaded, restricted handgun, Count 2, possession of a restricted firearm, Count 3, possession of a firearm knowing the serial number had been removed, and Count 4, breach of a weapons prohibition order.

[3] Given Mr. Hassan’s admissions and the evidence, I also found him guilty of Count 5, make counterfeit money, Count 6, possession of counterfeit money, and Count 7, possession of a tool or instrument knowing that it was used and was intended to be used in making counterfeit money.

[4] Mr. Hassan is a Black man. To assist in determining an appropriate sentence in his matter, his sentencing hearing was delayed for some time to allow for the preparation of an Impact of Race and Culture Assessment (“IRCA”) report. A detailed report was authored by Dr. Patrina Duhaney, an approved IRCA assessor in Ontario. The report helpfully documented socio-cultural information, factors that influenced Mr. Hassan’s involvement with the law, and made several recommendations to inform sentencing outcomes.

[5] The Crown now argues that a global sentence of four years, minus credit for six months, is fit and proportionate in the circumstances. [1] She submits that this sentence gives proper weight to the primary sentencing objectives of denunciation and deterrence, while still accounting for the challenges Mr. Hassan has faced in life as detailed in the IRCA.

[6] Defence counsel counters that a conditional sentence of two years less a day, followed by two years probation is the appropriate global sentence. While acknowledging that denunciation and deterrence are the paramount sentencing objectives, she argues that a conditional sentence can properly reflect these goals. Given the many mitigating factors in this case, including the information set out in the IRCA and the nearly seven years that Mr. Hassan has been on bail, she argues that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

Circumstances of the Offence

[7] The circumstances of the offence are set out in my reasons for judgment. I do not intend to repeat the facts in detail.

[8] In brief, on January 8, 2018, police executed a search warrant at Mr. Hassan’s home. In his bedroom, they found 21 counterfeit $100 bank notes, a holographic strip simulation of a $100 bill, and a paper cutter.

[9] In Mr. Hassan’s bedroom, police also found a locked safe. Inside the safe, police found a loaded Ruger P345 .45 auto caliber, semi-automatic handgun. There were eight .45 auto cartridges located in the magazine. The serial number had been obliterated. The police also found a bag of bullets.

Circumstances of Mr. Hassan

[10] My understanding of Mr. Hassan’s personal circumstances was significantly enhanced by the IRCA, as well as numerous support letters and letters attesting to his involvement in his mosque, counselling, and the community. At the sentencing hearing, the Crown took issue with the information provided, pointing out that there were some discrepancies in the materials. With respect to these disputed factors, however, I keep in mind that pursuant to s. 724 (d) of the Criminal Code, R.S.C. 1985, c. C-46 the defence does not have to establish them beyond a reasonable doubt; rather, I must be satisfied on a balance of probabilities of their existence. In my view, the issues raised by the Crown were satisfactorily explained by the defence. At the end of the day, I am prepared to accept the information tendered on Mr. Hassan’s behalf.

[11] Mr. Hassan was only 22 years old at the time of the offence. He is now 29.

[12] Mr. Hassan identifies as Somali. His parents are both from Ethiopia and came to Canada to seek a better life. Mr. Hassan had three older sisters: Deeqa, Hamdi, and Sadia. Tragically, Sadia died of a drug overdose in July 2022.

[13] Mr. Hassan’s parents separated shortly after he was born. His mother raised her four children on her own. Mr. Hassan’s father was largely absent from his life. While he saw his father on “random” occasions, he never developed a relationship with him. The author of the IRCA highlighted the lack of positive Black male role models in Mr. Hassan’s life as a factor that could have contributed to some of his poor decision making.

[14] Mr. Hassan’s mother worked at factories, often holding down two or three jobs at a time to support her family. She was frequently away from home because of her need to make money. His oldest sister Deeqa acted as a “substitute mom” to Mr. Hassan. Despite the best efforts of his mother, their family struggled financially.

[15] Mr. Hassan’s family moved around a lot when he was younger, and they spent time living in a shelter in Scarborough. Eventually they moved to a rented condo in a lower-income neighbourhood marred by crime and violence. He told the author of the IRCA that he experienced constant anxiety as a Black man living in an impoverished neighbourhood with a lot of community violence.

[16] Mr. Hassan reported feeling unsafe in his area as there were “neighbourhood politics” that at times erupted into violence. People from other areas would come to his neighbourhood and fire warning shots. Mr. Hassan lived on the ground floor, which he feared put him at higher risk of being shot. Once he was almost shot through a window when he was mistaken for another individual. On another occasion, someone he knew and grew up with tried to rob him at gunpoint. Mr. Hassan told the author of the IRCA that his experience in his neighbourhood was traumatic, but he did not realize it at the time as he was “just trying to survive.” She noted that to survive in their communities, many Black youth, including Mr. Hassan, must restrict or hide their emotions and adhere to street culture beliefs such as not showing vulnerability.

[17] Mr. Hassan’s neighbourhood also had a strong police presence. Mr. Hassan told the author of the IRCA that he witnessed police violence being used against friends. He also reported that from an early age, he was “constantly and consistently” harassed by the police. The author of the IRCA explained how exposure to police violence can “elicit a sense of fear, vulnerability, and helplessness.” This is often more pronounced in Black individuals who are “fearful of being racially profiled and discriminated against on a daily basis.”

[18] Mr. Hassan reported experiencing discrimination and racism during his school years. He was bullied. He did not do well academically, although he excelled at playing soccer and basketball. Mr. Hassan left high school when he was 17 because he realized he would not graduate due to his poor grades. However, when he was 18, he enrolled in the Yorkdale Adult Learning Center, and completed his grade 12 education.

[19] Mr. Hassan got his first job at the age of 15 or 16, working during the summer at a private basketball gym. He also did seasonal work as a general labourer at a construction company when he was about 20. During his time on bail, Mr. Hassan did not work regularly, but did occasional construction work under the table for cash. Mr. Hassan’s future goal is to work in construction and join a union. He has also expressed an interest in working in the oil fields in Alberta, where some members of his extended family are employed.

[20] Mr. Hassan is a practising Muslim. When he was in grade five his mother took him to live in Yemen to learn about his religion. He stayed with family members and spent three months in a boarding school focused on intensive religious instruction. He remained in Yemen, without his mother, until grade seven, when he returned to Canada. He told the author of the IRCA that he gains strength through his connection to his faith, which allows him to better deal with life’s challenges. Mr. Hassan explained that as a practicing Muslim he should pray five times a day, but he does not do so regularly. Instead, he prays about two times a day, something that he feels allows him to be closer to Allah.

[21] Mr. Abukar Mohamed, a director of the Khalid Bin Al-Walid Mosque, wrote a letter on Mr. Hassan’s behalf. Mr. Mohamed reported that Mr. Hassan is a member of their congregation and that he has known him for a decade. In the past Mr. Hassan has volunteered at the mosque. He noted that Mr. Hassan has participated in lectures, classes, and programs at the mosque.

[22] Mr. Hassan has an extremely close relationship with his mother and sisters. They wrote letters of support and spoke to the author of the IRCA. It is clear that they deeply love Mr. Hassan and that they are there to assist him as he tries to move forward from this incident and become a contributing member of society.

[23] Mr. Hassan had a particularly strong bond with his sister Sadia, as they were close in age. He experienced extreme grief due to her unexpected death. After she died, Mr. Hassan fell into a depression. He struggled with feelings of guilt, wondering if he could have done more to help his sister with her drug issues. After she died, Mr. Hassan found it difficult to work and often stayed in his room. As the author of the IRCA explained, experiencing the sudden loss of a family member can be one of the most traumatic occurrences in someone’s life, which is further complicated by experiences of racial disparities and witnessing police and community violence.

[24] Mr. Hassan also has a good relationship with his extended family. His aunt Ifrah Abdi wrote a letter in support of Mr. Hassan and said that she has seen many positive changes in her “beloved nephew” since his arrest in 2018. She noted that he has shown a commitment to “becoming a responsible and upstanding member of the Somali community.” His older cousin Shukri Abdi wrote a letter explaining that Mr. Hassan has faced many challenges in his life, including language barriers, cultural differences, and financial constraints because he grew up in a household with an immigrant single mother. She noted that since 2018, he has tried to distance himself from his old friend group and instead spend more time with his sisters and at the mosque.

[25] Mr. Hassan also acts as a mentor to his younger male cousins. His cousin Hamze Abdi wrote that Mr. Hassan has been a “vital male figure in my life, providing me with guidance, emotional support and a sense of stability.” He explained that Mr. Hassan has been an “influential figure in my spiritual growth” and has taken him and his younger brother to the mosque. Another cousin, Bilal Abdi, wrote that Mr. Hassan has been the only male figure in his life, and that he has been a “pillar of strength and guidance.” When Bilal was bullied in high school, Mr. Hassan helped him navigate through tough times, and offered unwavering support. Mr. Hassan has spent “countless hours” teaching him about Islam and taking him to the mosque.

[26] Mr. Hassan has taken some steps to address the root causes of his criminality by working with Reachout Community, a non-profit community-based organization. A letter from the organization advised that Mr. Hassan underwent counselling and that he enrolled in the Lifeskills and Better You Program. The program is an educational and prevention course designed to assist adults and teens in taking control of changing their behaviour and avoid reoffending. Mr. Hassan did two 45-minute phone sessions. He completed two other sessions that involved Mr. Hassan completing work sheets.

[27] Reachout is also involved in providing yearly food hampers and toys for children during Christmas, and backpacks filled with school supplies for their “Back 2 School” events in August. They also have a food bank and provide grocery and meals to elderly and physically challenged clients and families struggling financially. Mr. Hassan completed 46 hours of community service with Reachout. The author of the letter noted that Mr. Hassan has been “a valuable part of our volunteer driven programs during this time of food insecurities.” He assisted in sorting and distribution of meals, food, and PPE to needy members of the community.

[28] Mr. Hassan has a criminal record. In March 2012, as a youth, he was found guilty of robbery and fail to comply with bail. He was sentenced to 45 days of time served, and probation for 12 months, on both counts, concurrent. In July 2012, as a youth, he was found guilty of assault, and received a sentence of nine days time served, and probation for 12 months. In November 2015, he was convicted of assault and after considering six months of pre-sentence custody, received a suspended sentence and six months probation. In April 2018, he was convicted of possession of counterfeit money and uttering counterfeit money. He received a suspended sentence and 12 months probation. Mr. Hassan was on bail for these counterfeiting offences when he was charged with the current offences.

[29] With respect to the current offences, Mr. Hassan spent 15 days in pre-sentence custody. He has been on bail for almost seven years. Of that time, he spent 316 days (10.3 months) on house arrest. He spent one year, eight months and 11 days (20.4 months) on a curfew that required he be home between 10:00 p.m. and 6:00 a.m. In July 2020, his bail was varied to delete the curfew condition. On August 9, 2024, Mr. Hassan was charged with dangerous driving, flight from police, possession of property obtained by crime, and fail to comply and was released on a global bail that once again included a house arrest condition.

[30] The allegations of the new offences were not fleshed out in detail before me. In general, the Crown alleges that Mr. Hassan was driving a rented Lamborghini (with a passenger) in a dangerous manner, did not stop for police as required, and when pulled over, the police found $10,000 in the car. The breach relates to an allegation that he had a debit card without a name on it, in contravention of a condition prohibiting him from possessing any identification cards not in his name. As defence counsel noted, he is presumed innocent of these charges and Mr. Hassan intends to have a trial. Apart from this incident, there is no suggestion that Mr. Hassan breached the terms of his release order in any way during the almost seven years he was out on bail.

[31] At the conclusion of the sentencing hearing, Mr. Hassan addressed the court. He said that his biggest regret in life was having a gun and bringing it into his family home and community. He said he was “deeply sorry and remorseful.” He noted how his offending had negatively impacted and disappointed his family. He acknowledged the seriousness of his conduct. He explained how he is trying to move forward on a “new journey in life” - one that is more meaningful and revolves around his family and community. Mr. Hassan highlighted that he is now 29 years old and that he is not the same 22-year-old man who committed the offences. Having had the opportunity to see and hear from Mr. Hassan, I accept that his expression of remorse is genuine.

Sentencing Principles and Objectives

[32] As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”

[33] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society...”. This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in ss. 718 (a) to (f), including denunciation, general and specific deterrence, and rehabilitation.

[34] Section 718.1 sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[35] The Criminal Code lists several other principles to guide sentencing judges. The parity principle is set out in s. 718.2 (b) and provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Given the highly individualized sentencing process, however, the sentencing principle of parity remains secondary to proportionality: R. v. Parranto, 2021 SCC 46, at para. 38. Sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17; Lacasse, at paras. 53-58.

[36] The totality principle is addressed in s. 718.2 (c) of the Criminal Code, which provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The totality principle is important in this case, as Mr. Hassan is to be sentenced for several offences.

[37] The restraint principle is reflected in s. 718.2(d) and provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Subsection 718.2(e) highlights the particular importance of restraint and requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders…”

[38] The various sentencing objectives and principles often compete with one another, in that maximizing the denunciatory or deterrent effect of the sentence may be contrary to the rehabilitation of the offender and the principle of restraint, and vice versa. That said, the competing objectives and principles must be balanced in a way that respects the principle of proportionality. Even when denunciation and deterrence are the paramount sentencing objectives, the sentencing judge retains discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: R. v. Friesen, 2020 SCC 9, at para. 104; R. v. Rayo, 2018 QCCA 824, at paras. 103, 107-8.

[39] Pursuant to s. 742.1 of the Criminal Code, with some exceptions, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may impose a conditional sentence if satisfied that allowing the offender to serve their sentence in the community does not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing.

[40] Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender. Such an assessment is also mandated by s. 718.2 (a) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating and Mitigating Factors

Aggravating Factors

[41] Mr. Hassan has a criminal record. At the time of this offence, he had findings of guilt on offences of robbery, fail to comply with bail, and two counts of assault. I note that Mr. Hassan received the suspended sentence for counterfeiting offences in April 2018, after he had been charged with the current offences. That is, the counterfeiting offences I am to sentence him for do not represent “a repetition of an offence after an offender has been, so to speak, ‘warned’ and ‘put on notice’ by the imposition of a prior sentence”, which may be viewed more seriously than a first offence: see Sentencing, eighth edition, Clayton Ruby, Gerald Chan, Nader Hasan, s. 8.69.

[42] That said, at the time Mr. Hassan committed the offences before the court, he was facing three separate counterfeiting cases, and was on a global bail for these three offences. He was clearly breaching his release order and engaging in the same conduct he was on bail for. I take that into consideration as aggravating.

[43] With respect to the counterfeit money, he was not simply in possession, but he was actively involved in making false currency. The police discovered counterfeit bills in various stages of production. He had a holographic strip, a paper cutter, and a money counter.

[44] Mr. Hassan was involved in a relatively sophisticated counterfeit operation. He was producing high quality counterfeit $100 bills. Police found $2,100 worth of counterfeit bills in Mr. Hassan’s bedroom. The quality and quantity of the counterfeit bills Mr. Hassan made and possessed are aggravating.

[45] Mr. Hassan was producing counterfeit bills while he also had a loaded gun in his safe.

[46] Moreover, Mr. Hassan not only had a loaded gun in his safe, but he also had a bag of bullets. The serial number of the gun was also defaced.

[47] Mr. Hassan also possessed the gun in contravention of a weapons prohibition order. However, I will not consider this as an aggravating factor. As explained in R. v. McCue, 2012 ONCA 773, at para. 22, when sentencing an offender for such an offence, the sentencing judge has two options. First, the judge can take the convictions for breaching a prohibition order into account as a significant aggravating factor when fixing the appropriate sentence on the firearms offence, and then impose a concurrent sentence on the breach of a prohibition order offense. Second, the judge can ignore the breach of a prohibition order offence when fixing the appropriate sentence on the weapons offence and then impose a consecutive sentence on the breach offence. I have determined that the proper approach in this case is to impose a consecutive sentence for the breach of the prohibition order.

[48] Mr. Hassan had a trial on the gun charges. That is not aggravating but it does mean he is not entitled to the mitigation in sentence that he would have received if he had pled guilty.

Mitigating Factors

[49] In contrast, Mr. Hassan admitted responsibility for the counterfeiting offences. He thus saved the court time and resources, and he is entitled to some mitigation in sentence as a result.

[50] Mr. Hassan was only 22 years old at the time of the offence. While he is not a first offender, he is youthful. He has been on release for almost seven years and apart from the recent allegations there is no suggestion that he otherwise breached his bail. This supports that he has rehabilitative potential.

[51] Mr. Hassan has faced many challenges in his life. He was raised by a single mother of four, who could not be there for her children because she had to hold down several jobs at a time to survive. His father was absent from his life and Mr. Hassan did not have a positive male role model. He grew up in an impoverished neighbourhood, where violence was a common occurrence. He encountered racism throughout his life. The IRCA eloquently set out how Mr. Hassan’s experiences as a Black youth and man have impacted him.

[52] Mr. Hassan has some employment history. He got his first job as a teenager and has been involved in the construction industry. The Crown argued that Mr. Hassan’s sparse employment record during his time on bail belies any suggestion that he has good rehabilitative potential. But in my view the context is important in assessing that submission. Mr. Hassan’s time on bail was marked by two significant events that affected his ability to work. First, the Covid-19 pandemic started in March 2020, and his ability to work was hampered because of lockdowns. Second, his sister Sadia died in the summer of 2022. Mr. Hassan was profoundly affected by her death and struggled with depression and processing his grief. While I agree that he could have done more with respect to employment, that observation cannot be divorced from the circumstances Mr. Hassan found himself in.

[53] Mr. Hassan has extremely strong family support. This is reflected in the numerous support letters authored by his family members and their comments to the author of the IRCA. He also had family members attend every day of his trial and sentencing hearing. His close family connections will assist him as he tries to move forward from this incident.

[54] Mr. Hassan’s faith is important to him. He has been a part of his mosque for over a decade. He has attended for classes and workshops. While he may not always pray five times a day, or attend the mosque regularly, I have no doubt that he is a devout Muslim. Mr. Hassan’s connection to his religion will also be a positive factor that will help to ensure that he remains on a pro-social path.

[55] Mr. Hassan has also acted as a mentor to his younger cousins. He takes them to the mosque and has taught them about their faith. He has taken it upon himself to act as a male role model for his cousins, something that he himself missed growing up. The care and attention he has shown to his younger relatives speaks well to his character.

[56] Mr. Hassan has done some counselling with Reachout. While he has not done a significant amount, and has only undertaken this work recently, I am unable to dismiss it as simply performative as urged by the Crown. That is, I do not find it to be too little, too late. Instead, I view it as better late than never. Given the issues he has faced as a Black man as set out in the IRCA, his modest steps to grapple with issues is something to be encouraged and I consider his efforts to be mitigating.

[57] Similarly, he has taken steps to give back to the community. He has put in 46 volunteer hours. Again, his volunteer work was only undertaken recently. But in my view, despite the late start of his volunteer activity, it does show that Mr. Hassan has the potential to be a contributing member of society and highlights that he has rehabilitative potential.

[58] Mr. Hassan has shown some insight into his offending. He displayed sincere remorse for his crimes. While the mitigating impact of his expression of remorse is lessened in that it only came after his trial on the gun offences, I accept that he is sorry for his actions.

[59] I turn now to my analysis as to what a fit and proportionate sentence would be in this case.

Analysis

a) What is a fit and proportionate sentence for the firearms possession offences?

[60] Gun-related crime poses a grave danger to all Canadians and calls for significant sentences: R. v. Nur, 2015 SCC 15, at para. 1. More locally, the “possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed” in the “strongest possible terms”: R. v. Danvers, [2005] O.J. No 3532 (C.A.), at para. 78. Guns are designed to maim and kill. The possession of firearms must be condemned. The message must be sent through the imposition of exemplary sentences.

[61] As explained in Nur, at para. 82, the offence of possession of a loaded restricted handgun casts a net over a wide range of potential conduct. At the least serious end of the spectrum is the otherwise law-abiding gun owner who mistakenly stores their gun, with ammunition close by, in the wrong place. At the other end of the spectrum is the “outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade.” A three-year sentence may well be appropriate for such an offender.

[62] There are also cases that fall in the middle of the spectrum, where the conduct at issue is less serious and poses less danger. In such cases, a three-year sentence may be disproportionate, though not grossly so.

[63] In R. v. Stewart, 2022 ONSC 6997, at para. 80, Copeland J. (as she then was) concluded that the sentence for a young first offender for a handgun possession offence, where there is no evidence of other criminality such as drug trafficking, ranges from an upper reformatory sentence (including conditional sentences) to three years. As highlighted by defence counsel, there have been several cases where a conditional sentence was deemed to be a fit sentence for a particular offender who illegally possessed a loaded handgun: see for example, R. v. Morris, 2021 ONCA 680, at paras. 124-28; 180-81; R. v. Desmond-Robinson, 2022 ONCA 369, at para. 18; R. v. Mohamed, 2020 ONCA 163; R. v. Hassan, 2017 ONSC 4570; R. v. Lewis, 2022 ONSC 1260; R. v. Goodridge, 2022 ONCJ 139; R. v. Stewart, 2024 ONSC 281; R. v. Edwards, 2023 ONCJ 53; R. v. Roberts, 2023 ONCJ 226; R. v. Jeffery, 2022 ONSC 3828; R. v. Moses, 2022 ONSC 332; and R. v. Beharry, 2022 ONSC 4370.

[64] However, there are significant differentiating features between Mr. Hassan’s matter and many of the cases relied upon by the defence. He was not suffering from mental health issues: in contrast see R. v. Fabbro, 2021 ONCA 494. His Charter rights were not violated by the police: in contrast see R. v. Collins, 2023 ONSC 5768. He did not plead guilty to the firearms offences: in contrast see R. v. Warsame, 2022 ONSC 424; R. v. Yogo, 2023 ONSC 4144; R. v. Burke-Whittaker, 2024 ONSC 2906; and Collins. Moreover, most of the cases relied upon by the defence involved youthful first offenders. While Mr. Hassan was youthful at the time of the offence, he was not a first offender. He had previous findings of guilt for robbery, breach of probation and two counts of assault.

[65] Mr. Hassan did not have his gun out in public. This helped to reduce any immediate danger to the public. I also have no evidence that he used the gun as an “outlaw” to further his “criminal trade”. On the other hand, Mr. Hassan offered no evidence or explanation as to why he had a loaded handgun in his possession: R. v. Ellis, 2013 ONSC 3092, at para. 23, aff’d 2016 ONCA 598, at para. 80. While I cannot find beyond a reasonable doubt that Mr. Hassan used his gun to facilitate his counterfeiting offences, the fact remains that Mr. Hassan possessed the loaded handgun at the same time he was committing his counterfeiting offences. That is, his offending was not isolated. And he illegally possessed a loaded handgun while on bail.

[66] Considering the aggravating factors, I have determined that the conditional sentence sought by the defence would fail to give sufficient weight to the paramount sentencing objectives of denunciation and deterrence.

[67] Yet, I also keep in mind the challenges Mr. Hassan faced as set out in the IRCA. As a Black youth growing up in an impoverished neighbourhood, he was exposed to violence and dysfunction. He lacked a male role model, experienced racial discrimination, and had reduced opportunities. Despite his challenges, Mr. Hassan has shown that he has rehabilitative potential. While he could have done more to turn his life around since he was charged, he was also grappling with the death of his sister. He has taken some nascent steps to address his offending behaviours. He has shown insight and remorse.

[68] Looking at the totality of the circumstances, I find that the three-year sentence proposed by the Crown does not give sufficient weight to the sentencing objective of rehabilitation and the principle of restraint.

[69] Balancing the aggravating and mitigating factors and the relevant sentencing objectives and principles, I find that a fit and proportionate sentence on the possession of a loaded firearm offence, before taking into consideration any pre-sentence credit, is two years and eight months. (32 months).

[70] There is no dispute that Mr. Hassan should receive credit for his time on bail. As the Court of Appeal stated in R. v. Downes, [2006] O.J. No. 555 (C.A.), at para. 37, stringent bail conditions, especially house arrest, represent an infringement on liberty and are a relevant mitigating factor in sentencing. The Crown and defence are not far apart in the credit they submit Mr. Hassan should received for his time on bail. The Crown argues that six months is warranted, whereas the defence asks me to credit Mr. Hassan with eight months. In my view, something in between the two positions is appropriate. I am prepared to credit Mr. Hassan with just over seven months for his time on bail. Mr. Hassan should also receive credit for 15 days pre-sentence custody, calculated on a 1.5:1 basis, for the equivalent of 23 days.

[71] Thus, the total credit for time spent on bail and actual pre-sentence custody will be eight months. That will be applied to Count 1, the possession of the loaded restricted handgun, leaving a remaining sentence on that count of two years (24 months).

[72] Mr. Hassan will receive a one-year concurrent sentence on Count 2, the possession of a restricted firearm. He will also receive a one-year concurrent sentence on Count 3, the possession of a firearm with the serial number obliterated.

[73] I turn now to what I view as a fit and proportionate sentence for the offence of breach of a weapons prohibition order.

b) What is a fit and proportionate sentence for the breach of a weapons prohibition order offence?

[74] Breaching a firearms prohibition order is a serious offence. Along with denunciation and general deterrence, specific deterrence is an important sentencing objective in this case. Mr. Hassan must get the message that he must abide by court orders and that breaching a firearms prohibition order will attract a significant sentence. In all of the circumstances, I find that six months is a fit and proportionate sentence.

[75] The six-month sentence will be consecutive to Count 1, the possession of a loaded firearm offence. As noted in R. v. Claros, 2019 ONCA 626, at para. 51, this type of breach should be served consecutively to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. Making the sentence consecutive also recognizes the fact that the breach of a prohibition order is different behaviour than the associate offences, engaging different social interests.

c) What is a fit and proportionate sentence for the counterfeiting offences?

[76] Counterfeiting is not a victimless crime. As McMahon J. stressed in R. v. Ijam, 2007 ONCA 597, at para. 20:

Counterfeiting is a crime that strikes at the heart of commercial confidence in our Canadian currency. …… Counterfeiting not only victimizes the public confidence in our Canadian currency, it also victimizes the cab driver, the shopkeeper or the large commercial bank. As soon as the counterfeit bill goes into circulation, it is only a matter of time until someone will be stuck with the loss when the counterfeit is finally discovered. Often innocent members of the community have to try to explain to the police how they ended up in possession of counterfeit money and tried honestly to use it at the local grocery store. Counterfeiting is simply a crime driven by dishonesty and greed that impacts on all Canadians.

[77] Here, there are several aggravating factors. Mr. Hassan was not just in possession of the finished product, rather he manufactured the fake currency. The police found bills in various stages of production. He had the tools of the trade, including a holographic strip and a paper cutter. He produced high quality counterfeit $100 bills. He possessed $2,100 in counterfeit money. At the time of this offence, he was on a global bail for three counterfeiting offences. Given these aggravating features, I have concluded that the conditional sentence sought by the defence would fail to give sufficient weight to the principles of denunciation and deterrence.

[78] On the other hand, Mr. Hassan was only 22 at the time of this offence. While not a first offender, he was clearly youthful. I take into consideration his experiences as a young Black man, who grew up in a poor neighbourhood marred by crime and violence. The challenges Mr. Hassan has encountered as set out in the IRCA attenuate his moral blameworthiness. He also has strong family support, insight into his offending, and good rehabilitative potential.

[79] Moreover, and of import, Mr. Hassan admitted responsibility for the counterfeiting offences at the outset of the trial. By relieving the Crown of its obligation of prove these counts, Mr. Hassan saved the court time and resources. His sentence should be mitigated as a result. In my view, the six months sought by the Crown on this count does not properly reflect the mitigating factors in this case.

[80] Looking at all of the factors, I conclude that four months is a fit and proportionate sentence for the make counterfeiting offence.

[81] Defence counsel argues that the sentence on this offence should be concurrent to the firearms offences. I am unable to accept this argument. A concurrent sentence would denigrate the significance of the counterfeiting charge and suggest that it is not in and of itself worthy of punishment: McCue, at para. 20. I have also considered the principle of totality and find that imposing a consecutive sentence would not lead to an unduly harsh sentence. As a result, the four-month sentence will be consecutive to Count 1.

[82] For the remaining two counterfeiting offences, Mr. Hassan will receive two months on each count, concurrent to the make counterfeiting count.

Conclusion

[83] In conclusion, the global sentence before granting any credit, is three and a half years (42 months). After granting eight months credit for the time in pre-sentence custody and time on bail, Mr. Hassan will receive a remaining global sentence of two years and 10 months (34 months).

[84] The sentence should be structured as follows:

• Count 1 - 32 months, less credit for eight months, for a remaining sentence of 24 months;
• Count 2 - one year concurrent to Count 1;
• Count 3 - one year concurrent to Count 1;
• Count 4 - six months consecutive to Count 1;
• Count 5 - four months consecutive to Count 1;
• Count 6 - 2 months concurrent to Count 5; and
• Count 7 - 2 months concurrent to Count 5.

Ancillary Orders

DNA Order

[85] Possession of a loaded prohibited firearm is a primary designated offence. As a result, pursuant to s. 487.051(1) of the Criminal Code, I make an order authorizing the taking of samples from Mr. Hassan for the purpose of DNA testing.

Weapons Prohibition Order

[86] A mandatory weapons prohibition order is also required. Pursuant to ss. 109(2) (b) and 109(3) of the Criminal Code, Mr. Hassan is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance, any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

Order for Forfeiture

[87] Pursuant to s. 490.1 of the Criminal Code, and on consent, I order that the following be forfeited as offence-related property:

• 21 X $100 CND counterfeit bills (P642054)
• Plastic zip lock bag was containing ammunition (P599885)
• Westcot cutter (P599869)
• Visa cards, misc. cards (P599869)
• Money counter (P599883)
• Black iPhone (P599885)
• Samsung cell phone, Pink iPhone (P599869)
• Samsung cell phone, Black iPhone (P599883)

[88] Further, pursuant to s. 491 of the Criminal Code, and on consent, I am ordering that the following be forfeited:

• 50x 45 Calibre Winchester and Federal ammunition (P572532)
• 2x Luger ammunition (P7252532)
• Ruger Magazine (P572316)
• Ruger Handgun (P572533)

Victim Surcharge

[89] Given that Mr. Hassan will be serving a penitentiary sentence defence counsel asks me to waive the victim surcharge. In considering the request, I take into consideration that because Mr. Hassan will be incarcerated, his opportunity to work will be limited. Moreover, when he is done serving his sentence, he will need time to reintegrate himself back into society. His family also has financial difficulties. As a result, I am prepared to waive the victim surcharge as posing an undue hardship.

Justice Heather McArthur

Released: November 15, 2024

[1] The Crown suggests that the sentence be structured as follows: Count 1, three years minus six months, Count 2, one year concurrent, Count 3, one year concurrent, Count 4, six months consecutive, Count 5, six months consecutive, Count 6, six months concurrent, and Count 7, six months concurrent.