Court File and Appearances
Court File No.: CR-24-40000013-0000
Date: 2025-05-29
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Fahmid Iqbal
Appearances:
Brianne Bovell, for the Crown
Paul Aubin, for Fahmid Iqbal
Heard: February 18 and April 23, 2025
Reasons for Sentence
Catherine Himel
Introduction
[1] Fahmid Iqbal entered a plea of guilty to a charge of possession of a loaded restricted firearm without being the holder of a licence or registration permitting such possession contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46, as amended. He had elected to be tried by a judge sitting alone.
[2] Mr. Iqbal confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. He also acknowledged that immigration consequences may flow from a conviction.
[3] Following the plea of guilty, I ordered that a pre-sentence report be prepared. The report has been received and reviewed by counsel. Counsel have provided their submissions on sentence. The following are my reasons for sentence.
Factual Background
[4] On July 28, 2023, police received information that the complainant, Evan Ivkovic, was waiting at a pedestrian crossing when he was grabbed by his backpack from behind. A male then demanded that the complainant give him his air pods. The victim turned around and observed the person. The complainant refused to give him the items. The complainant left and called 911 when he got home.
[5] Officers responded to the 911 call and made their way to the area where the incident occurred. While making their way to the area, officers were flagged down by a pedestrian who informed them that there was a group of male youths acting belligerently near the area of 3003 Danforth which is in close proximity to the area of the charge of robbery. The pedestrian also advised that some of these males were making gestures that they were holding weapons in their waistbands.
[6] The officers arrived at the location of 3003 Danforth Avenue and observed a group of males who were consistent with the appearance of the males described to them. Officers observed Mr. Iqbal inside of the Ritz Caribbean Restaurant at 3003 Danforth Avenue. They determined that they had reasonable and probable grounds that Mr. Iqbal was involved in the initial occurrence.
[7] Police arrested Mr. Iqbal for robbery and searched him incident to arrest. Upon searching him, police located a loaded handgun in his waistband. The handgun was a Springfield XD9 9mm that had one round loaded in the chamber. Furthermore, the handgun was loaded with a magazine that allowed it to have a capacity of 16 rounds.
[8] On the basis of these facts and the admission of the defence, I found Mr. Iqbal guilty of the s. 95 offence.
Evidence on the Sentencing Hearing
[9] Crown counsel filed the Agreed Statement of Facts as an exhibit. Mr. Iqbal does not have a criminal record. The pre-sentence report was marked as an exhibit. It referenced a letter from the Mosque where Mr. Iqbal volunteers. Mr. Iqbal spoke in court and expressed remorse for his actions.
Positions of the Parties
Position of the Crown
[10] Crown counsel submits to the court that an appropriate sentence in this case is a sentence of two years less one day of imprisonment for the s. 95 offence served in jail and followed by two years of probation with a number of terms including counselling. Mr. Iqbal was arrested on July 28, 2023, and was released on a recognizance in the amount of $15,000 on August 24, 2023, with terms which included house arrest and electronic monitoring. His sureties are his uncle and his brother. He spent 28 days in custody and at 1.5:1, that would equal 42 days of credit in accordance with R. v. Summers, 2014 SCC 26 and s. 719(3.1) of the Code. The terms of his release allowed him to leave the house with his brother to volunteer. There have been no incidents since he has been on bail. Ms. Bovell, on behalf of the Crown, submits that the terms of release do not warrant further credit in accordance with R. v. Downes. In summary, the balance of the sentence to serve would be 688 days.
[11] Crown counsel also seeks the following ancillary orders: a s. 109 order for 10 years, an order that a DNA sample be taken pursuant to s. 487.051(3) as this is a secondary designated offence and an order of forfeiture of the property seized which was the loaded handgun and ammunition.
[12] Ms. Bovell submits that the principles of denunciation and deterrence are paramount for a case of this kind. She refers the court to R. v. Nur, 2013 ONCA 677 aff’d 2015 SCC 15, where the Supreme Court emphasized that gun crime is of grave concern and must be deterred. She also cited R. v. Lacasse, 2015 SCC 64 at paras. 89-90 where the Supreme Court said that while the Criminal Code applies across Canada, local characteristics in a given region may affect the sentence being given. Thus, the court may take into account local concerns regarding an offence and that the court should consider that gun crime in Toronto is on the increase and must be denounced. In R. v. Shin, 2009 ABCA 226, the Alberta Court of Appeal described how guns are designed to maim and kill and that death and serious injury are the consequence. The principles of denunciation and deterrence are the principle objectives of sentencing.
[13] The aggravating factors in this case are that Mr. Iqbal attempted to take the air pods from someone while he had a gun on him. He showed aggression with a random member of society. The gun was a loaded firearm with a 16 round capacity and a bullet in the chamber. Mr. Iqbal was in a public place that was a densely populated area in Toronto. He could have caused serious injury. Ms. Bovell pointed to the comment at p. 7 of the pre-sentence report that Mr. Iqbal may have lacked insight as to the danger of his behaviour. He was reckless in showing belligerent conduct while carrying a loaded firearm. He made a deliberate and calculated choice to possess a gun in public.
[14] The mitigating factors, in Ms. Bovell’s submission, are that Mr. Iqbal has taken responsibility for his actions, he has spared the court the use of its resources, there are some mental health concerns, and he has no criminal record. Crown counsel submits that a conditional sentence is not appropriate where someone lacks insight into the dangers of carrying a gun and that he has not taken steps to be gainfully employed.
[15] Ms. Bovell points out that Parliament recently increased the maximum punishment for a s. 95 offence from 10 to 15 years of imprisonment demonstrating that a more severe sanction is needed for this offence. A conditional sentence is inconsistent with the principle of denunciation.
[16] Crown counsel submitted a number of cases to the court upon which she relies. In R. v. Mahamet-Zene, 2018 ONSC 1050, appeal dismissed on other grounds at 2020 ONCA 99, the accused was convicted following a trial of possession of a loaded restricted firearm contrary to s. 95(2) of the Criminal Code, and possession of a firearm knowing he was not the holder of a licence contrary to s. 92(1) of the Code. He had been socializing with friends outside a homeless person’s centre and security on duty noticed the outline of a gun inside his front pant pocket. He was seen by another security officer to be in possession of a black backpack with the butt end of a gun protruding from his trouser pocket. Police were alerted and they searched Mr. Mahamet-Zene.
[17] An officer noticed a black backpack hanging from a fence close to where Mr. Mahamet-Zene was standing. Inside the bag was a semi-automatic handgun loaded with a magazine and a bullet in the chamber. He was found guilty at trial and sentenced to 42 months in custody reduced by one month in accordance with R. v. Downes. He was 24 years of age, had no prior criminal record and was employed prior to the charges in the Information Technology department at the Canadian Imperial Bank of Commerce. The court highlighted that he was in possession of the gun in a public place and that the gun was loaded with a bullet in the chamber ready to be fired. He had left the gun in a backpack hanging off a fence where it could easily have been found.
[18] In R. v. Mohiadin, 2021 ONCA 122, the appellant was convicted of six counts arising from possession of a loaded handgun in a car and was sentenced to 38 months in custody less credit for pre-sentence custody, which was two months more than the Crown’s position. The appellant was 19 years old at the time, was sitting in a parked car and police saw and smelled clouds of marijuana smoke coming from the car. Police observed the handle of a handgun inside a satchel around his neck and arrested him and seized the gun. The Court of Appeal allowed the sentence appeal and reduced the sentence to the Crown’s original position of 36 months less 54 days for pre-sentence custody.
[19] In R. v. Riedl, 2023 ONSC 2107, the accused pleaded guilty to possession of cocaine for the purpose of trafficking, possession of a restricted firearm and unauthorized possession of a loaded restricted handgun. The accused was a relatively young first offender who was employed and remorseful. The court noted the aggravating factors that he was driving around with a loaded firearm in a vehicle, had one bullet in the chamber and another five in a clip and that the gun was ready to fire. The court noted that he was out in the community with a loaded firearm. The serial number of the firearm was tampered with, and the gun was used for protection in the accused’s drug business. The court held he was engaged in truly criminal conduct, that the combination of drugs and guns was a serious aggravating factor and sentenced him to three years for possession of the firearm and one year consecutive for the drug offence.
[20] In the case of R. v. Vijavakumaran, 2025 ONSC 886, the accused was found guilty after trial of unlawful possession of a restricted firearm, unlawful possession of a restricted handgun without the requisite licence and unlawful possession of a prohibited magazine. The case arose when the accused and his then girlfriend had a heated argument, he threatened her, and her family and she informed police about his possession of a handgun. Police executed a search warrant and found and seized a handgun, a magazine with ammunition and a lockbox resembling a book. The accused was 29 years of age at the time of sentencing and had a relatively recent criminal record in 2019 and 2022 for impaired driving. He had already received a conditional sentence in 2022 when he committed the firearms offences “in the home where he lived with his family.” The court emphasized the gravity of the offence of gun crime and referenced that an exemplary custodial sentence was needed (para. 39). The sentence imposed was a three-year global sentence subject to credit for pre-sentence custody. K. Campbell J. cited the decision of R. v. Nur where the Supreme Court held at para. 82 that most s. 95 offences will warrant a sentence of three years or more depending on whether the gun crime is related as a tool of the trade and the offender is engaged in truly criminal conduct.
[21] Ms. Bovell submits that in the case of Mr. Iqbal, he was attempting to steal the air pods while possessing the gun. Further, the gun was in a public place, and he acted dangerously while armed. She argues that a conditional sentence is not indicated and distinguishes this case from some of the cases cited by the defence such as where the gun was found in the home of the offender: see R. v. Yogo, 2023 ONSC 4144; R. v. Ndaylhezagiue, 2024 ONCJ 457 where the gun was in a closet of a bedroom.
[22] For these reasons, Crown counsel submits that the sentence should be two years less one day served in custody followed by probation with conditions of reporting, maintaining employment, advising the probation officer where he is residing, taking counselling for substance abuse and for mental health and signing any necessary releases, that he not possess weapons, that he not attend at the Ritz Restaurant and that he have no contact with the complainant. She also asks the court to impose the ancillary orders outlined above.
Position of the Defence
[23] Counsel for the defence, Mr. Aubin, submits that an appropriate sentence is a period of imprisonment served as a conditional sentence. He says the circumstances of the offender fall within the scope of the case law and points to numerous sentencing cases where a conditional sentence was imposed: see R. v. Morris, 2021 ONCA 680 where the Ontario Court of Appeal held that a conditional sentence can be a fit sentence for a s. 95 offence: at para. 126. In R. v. Desmond-Robinson, 2022 ONCA 369, the Ontario Court of Appeal held that the trial judge erred in holding that a conditional sentence was not available and imposed a sentence of two years less a day served as a conditional sentence and two years of probation on appeal. The court wrote at para. 13 that the trial judge erred as the Court of Appeal has recognized that a conditional sentence may be appropriate in certain circumstances: see R. v. Morris. In Desmond-Robinson, the appellant was convicted of firearms-related offences and possession of cocaine and marijuana. The court wrote that “He was a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.”
[24] The availability of a conditional sentence is especially the case for a youthful offender even after a trial and even where there are other aggravating factors: see R. v. Beharry, 2022 ONSC 4370 where the offender was in possession of a loaded firearm in public, the court, after receiving an Enhanced Report, held that the youthful first offender who had family support should receive a conditional sentence and probation; R. v. Stewart, 2022 ONSC 6997 where the court found the accused guilty of four counts relating to possession of a loaded prohibited firearm with an over-capacity magazine, imposed a sentence of two years less a day and two years of probation for the offender who was 19 years old, had no criminal record, had strong family support and the Morris factors were present; R. v. Moses, 2022 ONSC 332 where the offender was convicted following a trial of s. 95 and 92 offences for possession of a loaded firearm located in a closet and found during the execution of a search warrant. The court imposed a sentence of two years less a day served as a conditional sentence and one year of probation for an offender who was middle-aged, had no criminal record, was a college graduate, had strong family support, was employed and had immigration issues. Quigley J. referenced the cases of R. v. Fabbro, 2021 ONCA 494, R. v. Hassan, 2017 ONSC 4570 and R. v. Ulmer, 2020 ABQB 393, where conditional sentences were imposed in gun possession cases.
[25] In R. v. Hussey-Rodrigues, 2024 ONSC 2671, Presser J. following a no contest plea to two counts of possession of a loaded prohibited firearm without being the holder of a licence and one count of possession of a prohibited firearm while knowingly not being the holder of a licence, and after there was a Charter application, sentenced the offender to two years less one day imprisonment served as a conditional sentence where he was 18 years old at the time, had no criminal record, had been on bail for almost five years, and was involved in prosocial activities.
[26] Similarly, in R. v. Izaz, 2024 ONSC 6460, Pinto J. sentenced an 18-year-old first offender who had a loaded gun in a motor vehicle, with five people in the car, and was in first year of university to two years less a day served as a conditional sentence and followed by probation. In R. v. Alexander, 2025 ONSC 961, following a jury trial, the offender was convicted of a s. 95 offence and flight from police, where the offender fled police on foot to a park and discarded the firearm. He was sentenced to a conditional sentence and probation. He was 18 years old at the time, had a difficult upbringing but a supportive mother and while on house arrest, he furthered his education.
[27] In R. v. McLarty-Matthieu, 2022 ONCJ 498, the offender who had no criminal record was sentenced following a guilty plea for possession of a loaded firearm while driving impaired and had been on house arrest for three years, to a 20-month conditional sentence and probation. In R. v. Roberts, 2023 ONCJ 226, the accused pleaded guilty to s. 95 and 92 offences where he had a gun for his protection while he travelled from Kingston to Ajax to sell Percocet and discarded the gun behind a convenience store when chased by police before his arrest. He had no criminal record and was 20 years old at the time. He had been on eight months of bail with an ankle monitor and was employed. He was sentenced to two years less a day served as a conditional sentence with credit for 191 days of pre-sentence custody and 18 months of probation.
[28] In R. v. Ramos, 2023 ONSC 1094, Goldstein J. sentenced the offender following a guilty plea to a s. 95 offence and possession for the purpose of trafficking to two years less a day served as a conditional sentence. The aggravating factor was the combination of drugs and a gun. The mitigating factor was that he had pleaded guilty and was addicted to drugs at the time. In R. v. Sahadevan, 2023 ONSC 6764, Forestell J. sentenced the offender who pleaded guilty to a s. 95 offence and had a youth record for aggravated assault and fail to comply. She imposed a 23-month sentence served as a conditional sentence and two years of probation where he had mental health issues and was now 23 years old and employed.
[29] Mr. Aubin points to the mitigating factors in the case of Mr. Iqbal. Mr. Iqbal is a youthful offender (19 years old at the time), he pleaded guilty to the charge, and he has a positive pre-sentence report. He had a difficult upbringing and was raised in a dangerous neighbourhood in Bangladesh. He has expressed remorse and has distanced himself from negative peers. He now spends time with his family. He has utilized minimal court resources as there was no preliminary hearing, no motions and his trial dates were vacated. He used his time on bail productively and during the 20 months on house arrest, he re-enrolled in school and received nine credits and is close to graduating. He has plans to further his education. He experienced a difficult time with the loss of his mother and his father, is schizophrenic, and has been hospitalized on occasion but is now doing better. Mr. Iqbal recognizes that he may also have mental health issues and is open to counselling. His family doctor is attempting to make a referral for him. He also has sleep problems and is waiting for an assessment to determine whether he has a sleep disorder.
[30] Counsel for the defence argues that, with respect to the Agreed Statement of Facts, it cannot be said that possession of the gun is associated with earlier criminality. There is no evidence he had the gun on him during the air pod incident. Further, Mr. Iqbal did not plead to, nor is he being sentenced to a count of robbery.
[31] In summary, Mr. Aubin submits that a conditional sentence can meet the objectives of denunciation and deterrence: see R. v. Proulx, 2000 SCC 5. In R. v. Morris, the Ontario Court of Appeal held that a conditional sentence for a youthful first offender can provide general deterrence. Further, in R. v. Priest, Rosenberg J.A. held that for a first offender, general deterrence should not dictate the sentence and there is a duty on the court to explore other dispositions. The court wrote at para. 12 that where a term of incarceration must be imposed because of the nature of the offence, for a young first offender, the term “should be as short as possible and tailored to the individual circumstances of the accused.” Mr. Aubin also points to paragraph 113 of R. v. Nur which says that the effect of the punishment not the severity of the punishment is what is important.
[32] Mr. Aubin notes that Mr. Iqbal has shown over the past 20 months that he can comply with strict bail. He has had 32 compliance checks by police. He has distanced himself from negative peers. He has not engaged in any criminality. He has attended school. He has demonstrated prosocial endeavours through volunteering at a community centre where he has organized community events and programs. He has expressed remorse and regrets his actions. Mr. Aubin submits that a conditional sentence will allow his rehabilitation to continue. Should the court impose a custodial sentence, however, Mr. Aubin would seek 6 months credit for the strict bail terms of house arrest that he has been subject to in accordance with R. v. Downes.
[33] Counsel for the defence submits that Mr. Iqbal was co-operative and forthcoming with the police. He accepts responsibility and does not make excuses or discount the seriousness of the offences. He recognizes that he should not have had a gun in his possession. He was only 19 years old when he went into custody. He has learned how difficult jail can be. He appreciates how this has affected his family.
Analysis and the Law
[34] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[35] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.
[36] I now turn to the relevant jurisprudence concerning the offence in this case. The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, para. 78.
[37] In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada emphasized the objectives of denunciation and deterrence when sentencing persons found in possession of loaded firearms. While striking down the mandatory minimum sentence for possession of a firearm contrary to s. 95(2), the court upheld the sentence of 40 months for a 19-year-old first offender.
[38] In the decision of the Court of Appeal at 2013 ONCA 677, Doherty J.A. wrote at para. 206: “Individuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”
[39] In R. v. Smickle, 2014 ONCA 49, the offender was convicted of possession of a loaded prohibited firearm contrary to s. 95(1) of the Code. The Court of Appeal held that the offence was serious, that the principles of deterrence and denunciation are paramount but that those principles could be met without re-incarcerating the offender. The court wrote at para. 19: “…Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders…” In R. v. Kawal, 2018 ONSC 7531, the court said at para. 16: “The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.”
[40] In addition to cases outlined above, there are numerous decisions where conditional sentences have been imposed for possession of firearm offences. In the case of R. v. Carter, 2021 ONCJ 561, the accused pleaded guilty to two counts of importing prohibited firearm parts and possessing a prohibited firearm. Mr. Carter was sentenced to 18 months served as a conditional sentence under house arrest and 18 months’ probation. The accused was a 50-year-old man who was a full-time professor at a local college and was a first-time offender. Fergus O’Donnell J. wrote at para. 29: “I have come to the conclusion that a sentence of real jail as sought by Mr. King is not called for. Indeed, I think it would be harmful to Mr. Carter and to his prospects for rehabilitation…”
[41] In R. v. Marier, 2023 ONSC 5194, the accused tossed a satchel containing a loaded handgun over a backyard fence while fleeing from police. He pleaded guilty to possession of a loaded prohibited firearm without a licence. Garton J. sentenced him to two years less 46 days of pre-sentence custody served as a conditional sentence. He was a youthful first-time offender who took full responsibility for his actions. He had strong support from his family and community and had been proactive in taking steps towards his rehabilitation while on bail. The court held that he was not likely to reoffend or pose risk to the safety of the public during the period of community supervision.
[42] In R. v. Lewis, [2022] O.J. No. 872, Boswell J. sentenced a 25-year-old offender for possession of a loaded prohibited firearm and possession of cocaine following guilty pleas to two years for the weapons offence to which he credited for seven and half months in custody with two months credit for harsh conditions of incarceration and four months in recognition of stringent bail conditions for the first nine months of release followed by a curfew for 20 months. The sentence was ordered to be served in the community as a conditional sentence.
Decision
[43] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, para. 44.
[44] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Iqbal.
[45] Mr. Iqbal is 21 years of age and was born on September 29, 2003, in Dhaka, the capital of Bangladesh. He has an older brother and a younger brother. He advised the probation officer that he grew up in a family home with his grandfather and his parents. He recalls that there was poverty and crime and kidnapping in the community. Thus, his parents were strict, and he was expected to do well in school. They were raised in the Muslim faith. He was subject to some physical abuse by his mother. He lived with his family in Bangladesh until 2017 when they moved to Canada, first to Saskatoon, Saskatchewan where his aunt and her family resided. His immediate family moved to Toronto in 2019 and his aunt and her family followed soon after. They lived in the Crescent Town neighbourhood in a 3-bedroom apartment where they still reside. He liked school in Canada as compared to Bangladesh, where corporal punishment was used as a consequence of not doing homework. Mr. Iqbal’s mother passed away in January of 2020. The family had returned to Bangladesh and his mother became ill with Covid-19 and died there.
[46] The family had to cope with the death of Mr. Iqbal’s mother. Mr. Iqbal said that none of the family knew how to cook, and they had to learn. His mother’s death was a shock, and it was very traumatic for him and his brother. He is still affected by the loss of his mother at the age of 16. Two years later, his father married a woman from Bangladesh who arrived in Canada in March of 2025 and lives with the family. Mr. Iqbal had never met her before and only learned of the marriage from his younger brother.
[47] Mr. Iqbal said that his mother had worked in childcare and was a kind person. He was close to her and considered their relationship as positive and supportive. He told the probation officer that his father was always home for meals, and they are close. His father is now on government support. When Mr. Iqbal was six years old, his father was hospitalized in Bangladesh for six months because of a mental health episode. He had a number of such incidents in Bangladesh and has been diagnosed as suffering from schizophrenia. He is now on medication and his condition seems to have stabilized. Mr. Iqbal says that he has a good relationship with his father, his brothers, and the extended family. The effect of his mother’s untimely death and his father’s mental health problems has been profound. Mr. Iqbal has not been involved in a significant serious relationship.
[48] As for education, he completed grade 6 in Bangladesh and did well. He said he was subject to corporal punishment from tutors. He attended grades 8 to 10 in Saskatoon and Grade 11 in Toronto. He enjoyed school and did well except for absenteeism due to sleeping issues. Mr. Iqbal travelled to Bangladesh with his family and was required to stay because of COVID-19 restrictions during which time his mother passed away. He had difficulty returning to school although he made a modest effort in 2021. After he was released on bail in 2023, he registered with an Ontario accredited online school and has completed nine credits. He has only four left in order to graduate. He wants to attend post-secondary education in the trades.
[49] Mr. Iqbal has not had employment other than cash jobs for babysitting and assisting a friend’s father. He is financially supported by family.
[50] With respect to substance use, Mr. Iqbal first consumed alcohol at the age of 14 years and since he was 17 years old, he has not consumed any alcohol. He smoked marijuana from time to time at first but after the death of his mother, he smoked marijuana frequently and on a daily basis. He also began to use Percocet daily to help with his sleep issues until his arrest.
[51] The probation officer described that Mr. Iqbal “presented as co-operative, respectful and engaged with the writer.” He took responsibility for his actions. He said he did not know how to use a gun but recognized it was a mistake to possess one.
[52] He has some old friends who are good influences on him. He has dissociated from the friends involved in criminality. He is involved in the Muslim community and has volunteered with the local Mosque. A letter from the Danforth Community Centre dated December 19, 2024 outlined that Mr. Iqbal volunteered with his brother and otherwise remotely from home and “dedicated roughly 63 hours to helping our Mosque over the duration of approximately a year.” His role has been in organizing community events and programs and supporting educational initiatives.
[53] Mr. Iqbal has had several years of sleeping difficulties. In addition, he has heard noises and says he sees things that are not there related to his sleep difficulties. Referral for counselling and therapy for his sleep and mental health problems is necessary. His brother says that he has changed since his arrest and that if he was sent to jail “it would make more setbacks in his life.”
[54] In summary, Mr. Iqbal was 19 years old at the time of the offence. When he was released from custody, he was placed on house arrest with an ankle monitor. He lives with his family, and his sureties are his uncle and his brother. He dropped out of grade 11 in 2021 but is finishing high school online and has four credits to complete his degree. He has accepted responsibility for the offence and knows that his behaviour was wrong. He has made substantial changes to his life and has turned to religion and his family for support. He is in need of medical and psychological assistance to address his sleep and mental health difficulties. Mr. Iqbal is a Permanent Resident, and his conviction and sentence may have immigration consequences.
[55] With respect to the circumstances of the offence, the offence was possession of a loaded restricted weapon without being the holder of a licence or registration. While there is no evidence that he presented this gun to anyone with whom he was in contact that evening, nonetheless, he had it on his person in a public place, it was loaded, and possession of the gun posed a danger to himself and others.
[56] In terms of mitigating factors, Mr. Iqbal pleaded guilty and has demonstrated remorse, thus taking responsibility for his actions. He has a supportive family. He is a youthful offender. At the time of this offence, he had no criminal record.
[57] The aggravating factors are that the gun was a fully loaded weapon which posed a significant danger, and this type of offence is what the Supreme Court of Canada considered to be at the more significant spectrum of firearm related offences in that Mr. Iqbal was out in public with a loaded firearm.
[58] As outlined above, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2(e)). R. v. Proulx, 2000 SCC 5 highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
[59] Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f).
[60] The first pre-requisite for a conditional sentence is that the sentence to be imposed must be less than two years. In my view, the first requirement is met. The sentence should be two years less a day of imprisonment in light of the circumstances of the offender and the offence which I have outlined above. There is also the mitigating factor of his compliance with very restrictive bail terms during the past 21 months. He has shown his ability to comply with conditions ordered by the court.
[61] I recognize that the same factors of systemic racism that are described in R. v. Morris are not relevant here. However, I also note the exposure to violence that Mr. Iqbal experienced in the neighbourhood in Bangladesh where he lived for some of his early childhood and the negative criminal influences he was exposed to in his community in Canada. These influences may have some connection with the criminal activity with which he was involved while committing this offence and may be a relevant factor in terms of his exposure to gun violence.
[62] As the Court of Appeal has said in Morris, sentencing involves a blending of the objectives set out in s. 718 of the Code and the circumstances of the offender and the offence. In considering all the mitigating and aggravating circumstances, I have determined that a sentence of two years less a day of imprisonment is appropriate. It is in keeping with the jurisprudence and recognizes that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: see s. 718.2(b) of the Code. Mr. Iqbal has been on bail for approximately 21 months under strict house arrest and without incident and with numerous compliance checks. In R. v. Downes, Justice Rosenberg of the Ontario Court of Appeal wrote that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider: see para. 37. The court is to look at the factors of the length of time on bail subject to the conditions, the stringency of the conditions, the impact on the offender’s liberty and the offender’s ability to carry on normal relationships, employment, and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit. The conditions of Mr. Iqbal’s release over the past 21 months have been stringent. He has been on an ankle monitor and only permitted to leave his home in the presence of a surety or because of medical emergencies or to attend court. I consider the time spent on strict terms of judicial interim release and his compliance with those terms as a mitigating factor. That is what leads me to exercise my discretion and conclude that a sentence of two years less one day served as a conditional sentence is appropriate in these circumstances.
[63] As Proulx emphasizes at para. 126, a “carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender” may be appropriate in some situations. Further, the determination of a just sentence is a highly individualized exercise: see R. v. Lacasse, 2015 SCC 64, paras. 57 and 58. In the case of Mr. Iqbal the statutory requirements are met. I am satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles set out in s. 718 to 718.2 of the Code.
[64] Accordingly, I impose a sentence of two years less one day for the s. 95 offence followed by two years of probation. Mr. Iqbal was in custody from his arrest on July 28, 2023 until August 24, 2023 a total of 28 days. In accordance with R. v. Summers, at 1.5:1, he is credited with 42 days for pre-sentence custody. This leaves a balance to serve of 688 days of imprisonment. He shall serve this period of imprisonment in the community as a conditional sentence. In addition to the statutory conditions in s. 742.3 which I impose, Mr. Iqbal must report to his supervisor forthwith and attend as often as his supervisor deems appropriate. He shall reside at 2915-5 Massey Square, East York, Ontario or such address as approved by his supervisor; he shall be under house arrest for the first twelve months of the conditional sentence and shall only leave the house for the purpose of work, to attend school or attend at appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household, to attend religious services as approved by his supervisor and to shop once each week for three hours as permitted in advance by the conditional sentence supervisor and he may leave the house if he is in the company of one of his brothers. In any event, he shall be in the house between the hours of 10:00 p.m. and 6:00 a.m. each day for seven days each week.
[65] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 10:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor.
[66] During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing, or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence. He shall not attend the Ritz Restaurant at 3003 Danforth Avenue, Toronto. He shall have no contact, direct or indirect with Evan Ivkovic.
[67] Following this period of imprisonment, Mr. Iqbal is placed on probation for two years. In addition to the statutory conditions, he shall reside at an address approved by his probation officer, he shall maintain employment or attend school and provide proof to his probation officer, he shall abstain from owning or possessing any weapon and he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary. He shall attend and participate in any counselling and/or treatment as directed by his probation officer and sign any necessary releases. He shall not attend at the Ritz Restaurant at 3003 Danforth Avenue. He shall have no contact direct or indirect with Evan Ivkovic.
[68] I further make an order under s. 109 of the Code prohibiting Mr. Iqbal from possessing any weapon as defined by the Criminal Code for 10 years. There will be an order that a sample of his DNA shall be taken in accordance with s. 487.051(3) of the Code. Finally, there will be an order of forfeiture of the gun, magazine, and ammunition.
Catherine Himel
Released: May 29, 2025