R. v. Assefa, 2025 ONSC 3747

Court File No.: CR-23-00101724-0000
Date: 2025-06-20
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Abel Assefa

Appearances:
Andrew Choat, for the Crown
Jordan Drexler, for the Defence

Heard: June 20, 2025
Justice: A. J. Ohler

Introduction

[1] Abel Assefa was found guilty of one count of possession of a loaded, restricted firearm for which he did not have a license and registration certificate, contrary to s. 95 of the Criminal Code of Canada.

[2] The circumstances leading to the conviction and my findings of fact are set out in my reasons for judgment, reported at 2025 ONSC 867. In brief, Mr. Assefa came to the attention of police during a drug trafficking investigation known as Project Walrus. Police suspected that the two targets of the investigation stored controlled substances in a one-bedroom basement apartment located at Old Huron Road in Kitchener, Ontario. Mr. Assefa was recorded on surveillance cameras attending at the basement apartment on several dates, including on one day police conducted a controlled buy of a quantity of cocaine. On September 15, 2021, police executed a search warrant at the apartment and found a substantial amount of drugs and multiple firearms.

[3] Mr. Assefa was charged on a ten-count indictment with two others. The charges included offences relating to the undercover buy, as well as offences relating to the items located on execution of the search warrant. For the reasons set out in my judgment on the trial, Mr. Assefa was acquitted of these charges. In brief, I was not satisfied that Mr. Assefa was in constructive or joint possession of the drugs and firearms seized by police, given the absence of any evidence that Mr. Assefa attended at the apartment in the month prior to takedown day.

[4] On the same day the search warrant was executed, Mr. Assefa was arrested for trafficking in a schedule 1 substance and possession for the purpose of trafficking. Police conducted a traffic stop and placed him under arrest. During a pat-down search at the roadside, officers discovered a Glock 48, 9-millimeter semi-automatic handgun tucked into the waistband of Mr. Assefa’s pants. It was loaded with a magazine holding 11 rounds of ammunition. The serial number was defaced.

[5] The defence did not contest this evidence and Mr. Assefa was convicted.

The Positions of the Parties

[6] The Crown and the defence agree that, given this offence and this offender, the appropriate range of sentence would be less than two years imprisonment. The Crown and the defence also agree that Mr. Assefa is not a danger to the public, and that an order that Mr. Assefa should serve his sentence in the community would be consistent with the purpose and principles of sentencing.

[7] The parties do not agree on the length of the conditional sentence to be imposed. For the defence, an 18-month sentence is appropriate in light of Mr. Assefa’s strong prospects for rehabilitation, time spent under strict house arrest, days spent in pre-trial custody, and a breach of Mr. Assefa’s rights under s. 10(b) of the Charter that has not received a remedy. The Crown agrees that all of these factors are mitigating, but that to reduce the sentence to 18 months imprisonment would render the sentence disproportionate to the gravity of the offence. For the Crown, the appropriate sentence is two years less one day, less credit for time spent in presentence custody, to be followed by a probation order, and that a sentence of two years less one day, less credit for presentence custody, takes into account all of the aggravating and mitigating factors in this case.

[8] With respect to ancillary orders, the defence agrees that the imposition of a weapons prohibition under s. 109 is mandatory and does not contest the Crown’s request for a DNA order or a $200 victim fine surcharge, with 60 days to pay. The defence takes the position that a term of probation is not necessary to assist in Mr. Assefa’s rehabilitation.

Principles of Sentencing

[9] In determining the appropriate sentence for Mr. Assefa, I must weigh the purposes and principles of sentencing set out in s. 718 of the Criminal Code, 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.

[10] As set out in s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proportionate sentence is arrived at by considering any relevant aggravating or mitigating circumstances. While every case is unique and a relevant sentence imposed for the individual offender before the court, similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. When sentencing a first offender, the court should exercise restraint in imposing imprisonment. As Mr. Assefa is a young, Black man, I must also consider the principles relating to evidence of systemic anti-Black racism and its impact on an offender as a factor relevant to sentencing in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641.

[11] In Morris, the Court of Appeal held that social context evidence relating to the offender’s life experiences may be used, where relevant, to mitigate an offender’s degree of responsibility and/or to assist in the balancing the principles and objectives of sentencing in order to fashion a sentence that best serves the purposes of sentencing as set out in s. 718 of the Criminal Code. Courts may acquire such social context evidence through appropriate judicial notice or through social context evidence, such as an enhanced presentence report (an “EPSR”), describing the existence, causes, and impact of anti-Black racism in Canada and its effect on the offender: Morris, at paras. 13, 132-147.

[12] Evidence of systemic anti-Black racism and its impact on an offender may be relevant to sentencing in two ways: First, it may be mitigating in relation to assessing the offender’s moral culpability for the offence: Morris, at paras. 75-81, 87-101; Second, it may inform how a sentencing judge balances the various sentencing principles in the circumstances of an individual case. It does not mitigate the gravity of the offence, as acknowledged by Mr. Assefa when he addressed the court on the day of sentencing.

[13] A presentence report was prepared for Mr. Assefa, though not the EPSR that is sometimes available to the court. Mr. Assefa addressed the court personally and touched on his experience growing up in government housing and his experiences with police. I am prepared to take judicial notice of the circumstances facing young Black men in Canada today and acknowledge Mr. Assefa’s personal experience.

Gravity of the Offence and Aggravating Factors

[14] Mr. Assefa has been convicted of a grave offence. There is no good reason to possess a loaded handgun in a public place. The gun itself is a significant and immediate risk to the public. As put by the Court in Morris, 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. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. 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: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, [1993] 4 S.C.R. 199, at pp. 214-15.

[15] The following aggravating factors are present in this case. Mr. Assefa possessed a loaded firearm, in a public place, at the roadside. The serial numbers on the gun were defaced. Mr. Assefa was not charged with an offence under s. 108(2)(b) of the Criminal Code, possession of a firearm knowing that the serial number on it had been defaced, but it is certainly an aggravating factor on sentencing: R. v. Gorgievski, 2024 ONSC 5899, at para. 25.

[16] As emphasized in Morris, denunciation and general deterrence are the primary sentencing objectives when crafting sentences for firearms possession offences due to the risk such offences pose to the public: Morris, at paras. 70-72. Denunciation and general deterrence must be given significant weight in arriving at the appropriate sentence for Mr. Assefa.

The Range of Sentence for s. 95 Offences

[17] The range of sentence for a first firearm possession offence is often stated as three to five years. That range reflects the gravity of the offence and the absolute scourge of firearms on our society. To be crystal clear, it would not be inappropriate or unusual to impose a sentence of three years incarceration in a federal penitentiary for Mr. Assefa’s possession of a loaded firearm, with serial numbers defaced, in a public place. That said, there is also an established range of sentences as low as upper reformatory, including conditional sentences, for youthful first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality, such as drug trafficking: R. v. Marshall, 2015 ONCA 692, at paras. 47-48; R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Beharry, 2022 ONSC 4370, at para. 31.

[18] While I am cognizant of the manner in which Mr. Assefa came before the court, it must be borne in mind that Mr. Assefa was acquitted of multiple offences related to trafficking in narcotics.

[19] In Morris, the Court of Appeal held that a three-year sentence will be appropriate for the vast majority of s. 95 possession offences. However, the court also held that sentences at or just below the two-year mark may be appropriate for some s. 95 offences: Morris, at paras. 71 and 131. See also: R. v. Smickle, 2013 ONCA 678, at para. 30 (additional reasons at 2014 ONCA 49); R. v. Desmond-Robinson, 2022 ONCA 369. The Court of Appeal has also recognized that in some cases, particularly those involving young adults with no criminal record and good prospects for rehabilitation, a conditional sentence of imprisonment may be an appropriate sentence even for serious firearm possession offences: Morris, at paras. 124-28, 180-81; Desmond-Robinson. Finally, the court in Morris provided specific direction that, in appropriate cases, a court must give consideration to conditional sentences of imprisonment as a sentencing option for young Black men convicted of handgun possession: paras. 131 and 180.

Mitigating Factors and Background of the Offender

[20] Mr. Assefa was 27 years old at the time of the offence. Though not a very young man, I consider him to be a youthful offender. He is single and lives with his parents and younger brother, who was disabled in a car accident many years ago. With his parents, he cares for his brother. He also has two older sisters with whom he shares a close relationship. Mr. Assefa’s parents are from Ethiopia from the Tigray region. They left Tigray as a result of unrest, immigrating first to Greece and then to Canada in 1989. Like his siblings, Mr. Assefa was born in Canada. Mr. Assefa grew up in government housing, in what he and his sister both described to the presentence report writer as a crime-ridden area. In his youth, he was generally successful at avoiding drugs and a criminal lifestyle.

[21] Mr. Assefa graduated high school and was a good student. He played on his school’s football, basketball, and rugby teams. He began college, but he did not complete it. He has worked as an occupational health assistant and as a salesperson. He was laid off during the COVID-19 pandemic, which led to a low period in his life, culminating in the charge before the court.

[22] Mr. Assefa does not have a criminal record. The principle of restraint – that a sentencing judge must consider all sanctions apart from incarceration, and when incarceration is necessary, must impose the shortest sentence of imprisonment that will achieve the various purpose of sentencing – applies with particular force when sentencing a first offender: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35; R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, at paras. 40-42. In this case, the principle of restraint must be balanced with the primary need for general deterrence, denunciation, and specific deterrence.

[23] Mr. Assefa spent 28 days in jail before being released on bail. The terms of his release were strict, involving house arrest for 18 months and 17 days. Over time, the conditions of his release were gradually relaxed – the system worked as it should. Mr. Assefa re-enrolled in college, taking courses part-time. He has approximately two semesters remaining to complete a degree in construction management. His conditions were further relaxed for volunteer work. Eventually, the house arrest became a curfew. As of today’s date, Mr. Assefa has been on a curfew for 25 months and 23 days. He is currently working as an appliance delivery person. The presentence report writer spoke to Mr. Assefa’s past and current employers, who praised him very highly.

[24] There is not a single charge of breach. The court does not take this lightly; it is difficult to live under conditions. That Mr. Assefa has been compliant with the terms of his release for over four and a half years is strong evidence that he will comply with the terms of a conditional sentence of imprisonment, if imposed, and is evidence that he is not a risk to his community. Following the direction of the Court of Appeal in R. v. Downes (2006), 79 O.R. (3d) 488 (C.A.) and the subsequent cases, the over 18 months Mr. Assefa spent on house arrest bail is a significant mitigating factor on sentence.

[25] Mr. Assefa has a strong community supporting him, attending court with him for his trial, providing letters of support on sentencing, and attending with him at the sentencing hearing. Eighteen letters of support have been filed with the court. These letters have come from Mr. Assefa’s parents, sisters, uncles, cousins, friends, and employers. I have read each one with great interest. I cannot mention all of them here, but I do want to highlight a few themes that were particularly helpful to the court.

[26] First, the letter writers all express their surprise at the fact that Mr. Assefa was criminally charged. This speaks well to his reputation within his family and his community and that he is trusted by those that know him.

[27] Second, the letter writers repeatedly refer to Mr. Assefa’s remorse for his actions. More so than mere words of regret, the letter writers discuss what Mr. Assefa has done since his arrest on these charges. His actions have given the letter writers faith that his rehabilitation is real, and he will not make the same mistakes again.

[28] Third, the letter writers offer their continued support of Mr. Assefa going forward. It is not a small thing to come to court with this kind of support. Many of those convicted of criminal offences do not have the benefit of such a community, and in this respect, Mr. Assefa is a very lucky man. I have no doubt that they will continue to support Mr. Assefa as he moves forward.

[29] Finally, both the Crown and the defence agree that the breach of Mr. Assefa’s rights under s. 10(b) of the Charter is a mitigating factor. The defence suggests that the length of the sentence imposed be reduced by four months to take into account this breach. While I accept that the breach is a mitigating factor, I agree with the submissions of the Crown that, in this case, such a reduction of the sentence to the 18 months sought by the defence would render it disproportionate. The breach of Mr. Assefa’s Charter rights was not found to be serious. There is nothing before the court to establish that the delay in consulting with counsel of choice delayed Mr. Assefa’s bail hearing.

[30] Following the direction of the Court of Appeal in R. v. Marshall, 2021 ONCA 344, the mitigating effect of the Charter breach and “credit” for time spent on house arrest (the Downes “credit”) are all taken into account in arriving at the appropriate sentence to impose.

The Appropriate Sentence for Mr. Assefa

[31] I accept the joint position of the Crown and the defence that it is appropriate to impose a conditional sentence of imprisonment. There is no mandatory term of imprisonment. The statutory conditions have been met: (i) a conditional sentence will not endanger the public; and (ii) a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[32] I am satisfied that a conditional sentence would not endanger the public. In coming to this conclusion, I acknowledge that possession of a loaded handgun in public is a very grave offence and a significant danger to the community. Mr. Assefa is a first offender. He has been on bail since the fall of 2021. He has no further convictions. I am satisfied in all of the circumstances that a conditional sentence would not endanger the community.

[33] I am satisfied that the imposition of a conditional sentence of imprisonment would be consistent with the fundamental purposes and principles of sentencing. A conditional sentence with a term of house arrest can express denunciation and deterrence, give effect to the principle of restraint, and permit Mr. Assefa to continue on his demonstrated path of rehabilitation. Having considered the various precedents the parties put before the court, including the finding in Morris, that properly used conditional sentences can ameliorate the longstanding problem of the over-incarceration of young Black men, I am satisfied that a conditional sentence of imprisonment is consistent with the principles and purposes of sentencing and is proportionate.

[34] I am satisfied that Mr. Assefa has very strong prospects for rehabilitation and that those prospects will be better achieved by a sentence that does not remove him from his community. Mr. Assefa’s rehabilitation is a goal that is not only in his interest but also in the public interest. Long-term public safety will be better served by a sentence that assists him to improve his education and work prospects and gain control over his life as a contributing member of the community: R. v. Bissonnette, 2022 SCC 23, at para. 48.

[35] Since his arrest in September 2021, Mr. Assefa has gone back to school part time. He has learned the art of drywall mudding and taping, he has gotten a job working as an appliance delivery man, and he has reconnected with his community of faith. I agree with the Crown and the defence that Mr. Assefa has very strong prospects for rehabilitation. In my view, it would be of little to no utility to interrupt the progress that has been made with a term of incarceration in an institution.

[36] I turn now to the appropriate length of the conditional sentence for Mr. Assefa, taking into consideration the gravity of the offence, the aggravating and mitigating factors, and the circumstances and background of Mr. Assefa.

[37] A sentence of two years less one day is appropriate, taking into account the gravity of the offence of possessing a loaded firearm in a public place, with the serial numbers defaced. I have taken into account the fact that Mr. Assefa is a first offender, with strong prospects for rehabilitation.

[38] A period of house arrest is necessary to give effect to the principles of denunciation and deterrence. In light of the lengthy period of time that Mr. Assefa has been on bail, without incident, any return to house arrest will be a significant restriction of his liberty.

[39] I sentence Mr. Assefa as follows:

1. A conditional sentence of imprisonment to be served in the community of two years less a day;
2. Taking into account a Summers credit of 45 days, the remaining time left to serve is 22.5 months;
3. The first third shall be served under house arrest – with the standard exceptions;
4. The second third shall be served under curfew from 11:00 p.m. to 5:00 a.m.; and
5. The final third shall be served under statutory conditions alone.

[40] The effect of this sentence is that Mr. Assefa will have been on conditions in the community from October 2021 through to June 2027, about six-and-a-half years. At that point, he will be 33 years old. In the circumstances, I do not find an additional period of probation is necessary to ensure that he remains on the path he is set.

[41] I also impose the following ancillary orders:

1. An order to provide a DNA sample, pursuant to s. 487.051(3) of the Criminal Code, as this is a secondary designated offence;
2. A weapons prohibition order, pursuant to s. 109(1)(b) of the Criminal Code;
3. An order of forfeiture of the firearm, magazine, and ammunition seized, pursuant to s. 491(1) of the Criminal Code; and
4. Victim fine surcharge in the amount of $200, with 90 days to pay.

A. J. Ohler
Date Released: Given orally in court on June 20, 2025.

[1] This decision was given orally on June 20, 2025. At that time, I indicated that written reasons would follow. These are those reasons. They may vary in the precise language used. Where there is a variation between the oral and written reasons, the written reasons prevail.