Court File and Parties

Court File No.: CR-24-20000554 and CR-24-20000555

Date: September 3, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King

and

Mohamad Riahi, Defendant

Counsel:

Christina Sibian, for the Crown

Ayderus Alawi, for the Defendant

Heard: July 8, 2025

Reasons for Sentence

Nishikawa J.

Overview and Background

[1] On October 23, 2024, after a blended application under the Canadian Charter of Rights and Freedoms and a trial by judge-alone, Mr. Riahi was found guilty of the following offences:

(i) unlawful possession of a loaded prohibited firearm, a Glock handgun, without being the holder of an authorization permitting such possession, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code");

(ii) two counts of unlawful possession of a prohibited device, an overcapacity cartridge magazine, while knowingly not being the holder of a licence permitting such possession, contrary to s. 92(2) of the Code;

(iii) unlawful possession of a firearm while being prohibited from doing so by an order made under s. 109 of the Code, contrary to s. 117.01(1) of the Code;

(iv) two counts of unlawful possession of a prohibited device, an overcapacity cartridge magazine, while being prohibited from doing so by an order made under s. 109 of the Code, contrary to s. 117.01(1) of the Code; and

(v) unlawful possession of ammunition while being prohibited from doing so by an order made under s. 109 of the Code, contrary to s. 117.01(1) of the Code.

[2] At trial, Mr. Riahi admitted that the firearm located in the Unit belonged to him. He also admitted that the two overcapacity magazines and ammunition were his, although he testified that he had been intending to sell them for a profit.

[3] While Mr. Riahi was convicted of all the weapons-related charges against him, he was found not guilty of all of the drug-related offences, including possession for the purposes of trafficking of cocaine, crack cocaine, fentanyl, and oxycodone, among other things, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19: R. v. Riahi, 2024 ONSC 5849, 566 C.R.R. (2d) 297 ("Reasons for Judgment").

Analysis

The Parties' Positions

[4] The Crown seeks a global sentence of five years in the penitentiary, before subtracting credit for presentence custody. This consists of three years for the firearm offence, one year on each of the s. 92(2) offences to be served consecutively to the s. 95 offence but concurrent to each other, and one year for breaches of a court order, to be served consecutively to the other offences but concurrent to each other. The Crown takes the position that five years is reflective of the aggravating and mitigating factors in this case.

[5] The defence seeks a conditional sentence and probation. The defence does not dispute the aggravating factors in this case but argues that the Crown's position does not sufficiently take into consideration Mr. Riahi's prospects for rehabilitation.

The Circumstances of the Offences

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

[7] On June 11, 2022, officers of the Toronto Police Service ("TPS") executed a Feeney warrant at a unit at 29 Singer Court in Toronto where Mr. Riahi was believed to be staying. Mr. Riahi was wanted in relation to a shooting that took place in August 2019. In his testimony, Mr. Riahi admitted that he was evading police.

[8] During the dynamic entry, Mr. Riahi sustained multiple blows resulting in an injury to his lip, for which he was later taken to the hospital. While paramedics attended to Mr. Riahi, TPS officers searched a backpack found in the Unit and found a bundle of cash and a large Ziploc bag containing a substance they believed to be cocaine. The officers then obtained a search warrant for the Unit, where they located quantities of fentanyl, crack cocaine, oxycodone, digital scales and $4,074 in Canadian currency, among other items. They located a loaded 27 Gen 5 Glock semi-automatic handgun in a clothing hamper. In a duffel bag belonging to Mr. Riahi, officers located two 24-round overcapacity cartridge magazines, 210 rounds of ammunition and a speed loader.

[9] The firearm is a prohibited firearm as defined in s. 84 of the Code. Mr. Riahi did not possess any firearms licences. At the time, Mr. Riahi was subject to an order of the Ontario Court of Justice pursuant to s. 109 of the Code prohibiting him from possessing weapons.

[10] In the Reasons for Judgment, I found that Mr. Riahi's rights under ss. 7 and 8 of the Charter had been breached based on one of the officers' unreasonable use of force in arresting Mr. Riahi and because the search of the backpack was not a lawful search incident to arrest. Further, because the search warrant could not have been issued without the drugs and cash found in the backpack, the search of the Unit was also a breach of Mr. Riahi's s. 8 rights. Nonetheless, I declined to exclude the seized evidence pursuant to s. 24(2) of the Charter. I further concluded that a stay of proceedings would not be appropriate in the circumstances of this case.

The Circumstances of the Offender

Criminal Record

[11] Mr. Riahi was 25 years old at the time of the offences. He is currently 28 years old. Mr. Riahi has a criminal record with convictions in May 2018 for possession for the purposes of drug trafficking and dangerous operation of a motor vehicle.

The Pre-Sentence Report

[12] A pre-sentence report ("PSR") was completed by Probation and Parole Officer Radika Koneswaran (the "Officer"). The Officer interviewed Mr. Riahi, his mother (Sara Nabhan), his girlfriend (Jessica Rosario), his girlfriend's mother (Carmela Rosario), and two of his friends (Jeffrey Gruchy and Aaron Gotlieb).

[13] Mr. Riahi was born in Toronto and had a difficult upbringing. Mr. Riahi's father was physically abusive toward him, his twin brother and his mother. While Mr. Riahi did not recall observing domestic violence, Ms. Nabhan reported that he witnessed domestic violence when he was five or six years old. Child protective services became involved with the family when it was alleged that Mr. Riahi's father had sexually assaulted Mr. Riahi's half-sister. This disclosure had a profound emotional impact on Mr. Riahi.

[14] When Mr. Riahi was eight years old, his father left the family to live with another woman in the neighbourhood. Mr. Riahi and his brother became aware of this as a result of teasing at school. When they attempted to visit their father, their father's new partner became upset and did not want them there. Mr. Riahi's relationship with his father ended shortly after. Currently, Mr. Riahi has no contact with his father. Mr. Riahi's family faced significant challenges following the separation, including financial difficulties.

[15] Until the age of 24, Mr. Riahi lived with his mother, half-sister and twin brother in a Toronto Community Housing Corporation building in a disadvantaged neighbourhood, which he referred to as the "jungle". Mr. Riahi described his environment in the following terms: "[a] lot of losses, shootings, harassment by cops, being scared, cars coming in shooting and driving off, I'm seeing drug addicts walking outside looking crazy." Mr. Riahi's mother also described violence, shootings, and fighting in the neighborhood when Mr. Riahi was young.

[16] Mr. Riahi explained that when he was 12 years old, he would hear shootings when going to the mall or basketball court. When he was 14 years old, someone shot his neighbour. A friend of his also died that year. When he was 19 years old, another friend was killed. At age 20, some girls came to his house when someone was shooting at them. When Mr. Riahi was in high school, his twin brother was stabbed and almost died. His brother's aggressor was not arrested. Mr. Riahi underlined that these events took an emotional toll on him. Mr. Riahi explained that he carried a firearm for protection because he was scared, especially given the violence in the neighbourhood.

[17] Mr. Riahi attended multiple schools and encountered discrimination at school. He felt targeted by school staff, including a vice principal, because of his background. Mr. Riahi was falsely accused of starting a fight and suspended, which he believed was discriminatory. Despite these challenges, Mr. Riahi completed a French immersion program, earning good grades in some subjects. Mr. Riahi earned his final high school credit while in custody.

[18] Mr. Riahi reported troubling police interactions in his neighbourhood. When he was ten years old, police officers chased him and beat his brother. The police frequently carded and searched him. When Mr. Riahi was arrested on the charges before this court, he believed the officers were going to kill him.

[19] Mr. Riahi reported that he felt profiled by police and targeted by school officials, which affected his mental and emotional well-being. Mr. Riahi stated that his experience of racism and discrimination has made him feel "less than". These experiences have contributed to his distrust of the justice system and authority figures. He felt alienated and feared for his safety, especially in interactions with police.

[20] Mr. Riahi is currently unemployed. Mr. Riahi reported having a job lined up with a particular construction company. Mr. Riahi expressed interest in pursuing education at the Canadian College of Business and Technology, with aspirations of working in marketing for social media.

[21] Mr. Riahi's relationships with his family and friends have been a source of support. He has demonstrated loyalty and care for his loved ones. Mr. Riahi has been in a relationship with Jessica Rosario since April 2016. She describes him as quiet, understanding, and supportive. Her mother, Carmela Rosario, who is one of Mr. Riahi's sureties and with whom Mr Riahi has resided since March 2023, described him as quiet, helpful, and respectful.

[22] His mother, Ms. Nabhan, remains a supportive figure. She describes him as polite, loving, and kind. Mr. Gruchy described Mr. Riahi as bright, independent and calm and wanting "to do good things". Mr. Gotlieb described him as caring, good-hearted, and loyal to his friends. Ms. Nabhan and Mr. Gruchy described the overwhelming impact of growing up in a disadvantaged and crime-ridden neighbourhood. Ms. Nabhan disclosed that at one point she took her sons to stay with family in her home country to remove them from negative influences; however, this only led to further resentment on their part.

[23] The Officer noted that Mr. Riahi presented as cooperative, respectful, and engaged, answering most questions in an open and forthcoming manner. Mr. Riahi expressed regret over his decision to carry a firearm, acknowledging it was a mistake that he would not repeat.

Impact of Race and Cultural Assessment

[24] The defence submitted an Impact of Race and Cultural Assessment Report completed by the Sankofa Psychotherapy & Consultancy Group (the "IRCA Report"). The author interviewed Mr. Riahi, Ms. Nabhan, Ms. Jessica Rosario, Ms. Carmela Rosario, Mr. Gruchy, Mr. Gotlieb, and a community mentor (Mike Jonathan).

[25] The IRCA Report noted that Mr. Riahi's family experienced years of verbal and physical abuse by Mr. Riahi's father. The IRCA Report described the effects of paternal absence and abandonment as deeply traumatic, especially in racialized immigrant families such as Mr. Riahi's.

[26] The IRCA Report noted that policing in the neighbourhood where Mr. Riahi grew up has long been characterized by systemic surveillance and tensions stemming from anti-Black racism. Mr. Riahi described his first interaction with police, at 11 years old. After a car was stolen in the community, police chased Mr. Riahi and his brother, and "roughed them up" before letting them go. The IRCA Report noted that, by age 12, Mr. Riahi was routinely being carded by police while playing outside. Mr. Riahi described being subject to police scrutiny when playing basketball or sitting outside with friends. The IRCA Report opined that Mr. Riahi's story is consistent with the disproportionate surveillance and criminalization of Black youth.

[27] The IRCA Report highlighted Mr. Riahi's traumatic experiences of community violence. Mr. Riahi described hearing gunshots when playing outside or hanging out with his friends. On many occasions, he saw boys running from the scene of a shooting in the neighbourhood. The IRCA Report explained that Mr. Riahi's exposure to community violence led to feelings of hypervigilance and emotional numbing.

[28] The IRCA Report noted that in 2018, a childhood friend and mentor of Mr. Riahi's, Yahya, survived after being shot 12 times while on a late-night snack run at the local gas station. Yahya's injuries left him confined to a wheelchair with a bleak medical prognosis. Yahya remained an active and inspiring figure in the community, mentoring youth and working in local schools. In June 2025, Yahya was fatally shot while socializing in the community. This loss had a profound impact on Mr. Riahi.

[29] Mr. Riahi shared that his repeated police interactions limited his ability to gain consistent work experience. Police interactions in the neighbourhood where he lived led to his involvement with the youth justice system. The IRCA Report highlighted the systemic barriers to employment faced by Black and racialized youth in Ontario like Mr. Riahi.

[30] Ms. Nabhan sought to have her children attend schools outside the neighborhood to set them up for success. She had to advocate for Mr. Riahi to be admitted into a French immersion program. However, at those schools, Mr. Riahi reported experiencing challenges such as unwarranted attention and discipline based on his race. He recalled a Grade 7 or 8 teacher telling his mother that her sons were "bad kids" and would end up in jail. Ms. Nabhan recounted an incident in which Mr. Riahi was expelled because he was believed to be the instigator of a fight when he was in fact the victim of an attempted robbery. The family initiated an appeal, which was ultimately successful. However, the damage was done and Mr. Riahi did not return to that school.

[31] Mr. Riahi's personal experience echoes systemic issues raised in the IRCA Report about the "school to prison pipeline", which describes the phenomenon of Black students' behaviour being disproportionately interpreted as defiant or dangerous, resulting in suspension, exclusion or police involvement. The IRCA Report noted that, consistent with Mr. Riahi's experience, Black youth in low-income or racialized neighbourhoods are routinely profiled and stigmatized in education systems.

[32] After leaving that high school Mr. Riahi and his brother attended different schools. His brother was physically assaulted by students from their previous school. They then decided to finish their high school education together. In a separate incident, his brother was stabbed on the first day of school, requiring weeks of hospitalization.

[33] The IRCA Report noted that after his brother was attacked, Mr. Riahi feared returning to school because of his concerns about retaliation and because they were identical twins. The IRCA Report opined that this event changed how Mr. Riahi experienced safety in his community.

[34] The IRCA Report noted that Mr. Riahi started smoking marijuana at age 12 years old to relieve stress and anxiety. The IRCA Report opined that this speaks to the pervasive and early onset of trauma in Mr. Riahi's life.

[35] The IRCA Report concludes as follows:

Mr. Riahi's life narrative illustrates the far-reaching and compounding effects of fatherlessness, racialized poverty, systemic anti-Black racism, and community violence on the mental health and life trajectories of Black youth in Canada. His story is one of both struggle and survival, shaped by early childhood trauma, school exclusion, police surveillance, and painful loss include[ing] friends and mentors. Despite these challenges, Mr. Riahi demonstrates deep reflection, remorse, and a desire for change. His acknowledgement of his past decisions, coupled with his recognition of his potential and support network, signals a readiness for rehabilitation rather than punishment.

Letter of Support

[36] The defence submitted a letter of support from Mr. Riahi's girlfriend, Jessica Rosario. Ms. Rosario states that she has known Mr. Riahi for over 15 years. They first met when Mr. Riahi served as her peer math tutor and then became friends. They have been in a relationship for the past nine years.

[37] Ms. Rosario states that Mr. Riahi has been a caring, supportive and responsible partner. He has been living with her and her mother while on bail and has helped with household tasks, repairs and pet care. Ms. Rosario states that Mr. Riahi has made steps to improve himself, build his skills and to rebuild his life. His objective is to find stable employment to contribute to their family and society.

Analysis

The Principles of Sentencing

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

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

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

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

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

(d) to assist in rehabilitating offenders;

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

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

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

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

• any aggravating and mitigating factors, including those listed in s. 718.2 (a)(i) to (iv) of the Criminal Code;

• the principle of parity, in that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));

• the principle of totality, meaning that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and

• the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[41] The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: see s. 718.2 (b) of the Code; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 8-9.

Firearm Offences

[42] The courts have repeatedly condemned the menace that the criminal possession of handguns pose to society and the need for sentences to further the goals of denunciation, deterrence and protection of the public: R. v. Burke-Whittaker, 2025 ONCA 142, 175 O.R. (3d) 726, at paras. 37 and 100, leave to appeal to S.C.C. requested, 41786, citing R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14. As Campbell J. observed in R. v. Browne, 2014 ONSC 4217, at para. 25:

[t]he criminal possession of handguns in such circumstances remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. These firearms are almost invariably tools employed in some other criminal activity, and their possession and use, on occasion, tragically results in serious bodily harm or death.

That threat has only grown since Campbell J. made those comments.

[43] The Supreme Court of Canada has observed that s. 95(1) of the Criminal Code "casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more but conduct at the far end of the range may not": R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82, aff'g 2013 ONCA 677, 117 O.R. (3d) 401. In Nur, the Supreme Court upheld a 40-month sentence in relation to a 19-year-old first offender for one count of unlawful possession of a firearm under s. 95(1).

[44] The Court of Appeal for Ontario has affirmed that possession of a loaded handgun is a very serious offence that will normally attract a penitentiary term of imprisonment: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 151. Most s. 95 offences will attract a penitentiary term even for first offenders: R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19. For individuals who bring guns into public spaces, a sentence of greater than three years is commonly imposed: R. v. Mohiadin, 2021 ONCA 122; R. v. Camara, 2019 ONSC 115, aff'd 2021 ONCA 79, 400 C.C.C. (3d) 490. In Mohiadin, the court upheld a three-year sentence for a youthful first-offender.

[45] The exception to a penitentiary term of imprisonment is where there are "strong mitigating factors": Morris, at para. 151. In R. v. Smith, 2023 ONCA 620, the Court of Appeal set aside a conditional sentence on the basis that the sentencing judge erred in finding that the conduct at issue did not fall within the "true crime" characterization: paras. 5-6. The Court of Appeal further held that mitigating factors did not warrant a departure from the presumptive penalty of a penitentiary term, given the seriousness of the offences and the aggravating factors: Smith, at paras. 7-9. If a penitentiary term of imprisonment cannot be excluded, then a conditional sentence should not be imposed: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 58; see also Smith, at para. 7, citing Proulx, at para. 58.

[46] In respect of the possession of additional, over-capacity magazines, in R. v. Walters, 2023 ONCA 4, at para 39, the Court of Appeal found that it was within the discretion of the sentencing judge to impose consecutive, as opposed to concurrent, sentences because it was a distinct legal wrong deserving of its own punishment. Had a consecutive sentence not been imposed, possession of an additional magazine would have been a serious aggravating factor warranting an increase in the global sentence imposed: Walters, at para. 39.

Breach of Prohibition Orders

[47] Sentences for breaches of prohibition orders are to be served consecutively to any substantive offences. The imposition of consecutive sentences is intended to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. It also acknowledges that the breach of a prohibition order is different behaviour than the associated offences, engaging different social interests: R. v. Claros, 2019 ONCA 626, at paras. 51-52.

[48] Breach of one prohibition order will typically result in a one-year sentence, whereas breach of more than one prohibition order may warrant a sentence of 18 months: R. v. Carrol, 2014 ONSC 2063, at para. 30.

The Principle of Totality

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

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

[51] The correct approach is for the trial judge to first identify the gravamen of the conduct giving rise to all the criminal offences and next determine the total sentence to be imposed: R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 85, citing R. v. Jewell (1995), 100 C.C.C. (3d) 270, 83 O.A.C. 81, at p. 279. Once the appropriate total sentence is determined, the trial judge should then impose sentences with respect to each offence which result in the total sentence and which appropriately reflect the gravamen of the overall criminal conduct.

The Appropriate Range

[52] The Crown notes that a sentence in the range of three years is appropriate for possession of a loaded, prohibited firearm, even in the case of a first offender: R. v. Ramos, 2023 ONSC 1094, at para. 46; R. v. Boreland Goode, 2023 ONSC 6799, at para. 55.

[53] In support of their position that a conditional sentence is appropriate, the defence relies on the following cases: R. v. Desmond-Robinson, 2022 ONCA 369; R. v. Mohamed, 2020 ONCA 163; R. v. Marier, 2023 ONSC 5194; R. v. Orin Moses, 2022 ONSC 332; and R. v. Hassan, 2017 ONSC 4570.

[54] The cases on which the defence relies involve first offenders, in many cases younger than Mr. Riahi. Mr. Riahi was 25 years old at the time of the offences. He has a criminal record for serious offences including possession for the purposes of trafficking. Moreover, in a number of the above cases, the defendant pleaded guilty or there was evidence of significant, demonstrable steps toward rehabilitation.

[55] Based on the foregoing case law, and the aggravating and mitigating factors further described below, I find that the appropriate sentencing range for the offences at issue in this case is from three to five years. As a result, in the circumstances of this case, a conditional sentence is not appropriate.

The Principles Applied

Aggravating Factors

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

• The firearm was a prohibited, semi-automatic handgun loaded with 10 rounds of ammunition, including one round in the chamber;

• There is no lawful use for the firearm in question;

• The firearm was carelessly and dangerously stored in a hamper in a Unit accessed by multiple individuals;

• Mr. Riahi admitted that he sometimes carried the firearm in public;

• Two overcapacity magazines, 210 rounds of ammunition and a speed loader were also found in Mr. Riahi's duffel bag in the apartment;

• At the time, Mr. Riahi was subject to a weapons prohibition order; and

• The prevalence of gun crime in the community.

Mitigating Factors

Rehabilitation

[57] There are a number of mitigating factors in this case. First, Mr. Riahi's rehabilitative potential is high. He did well in school when he applied himself and has maintained interpersonal relationships throughout the years. He completed his high school diploma while in custody by engaging with the Amadeusz Program. His friends and mentors describe Mr. Riahi as a highly intelligent individual with a great deal of potential.

[58] Mr. Riahi has held jobs in retail and reports having a job opportunity lined up with a construction company. Mr. Riahi has expressed an interest in pursuing his education at the Canadian College of Business and Technology. Mr. Riahi does not drink alcohol but has used marijuana to cope with the trauma and stresses he has experienced. Mr. Riahi is a practising Muslim.

[59] Mr. Riahi has strong support from his family and community. He continues to receive support and encouragement from Ms. Nabhan, Jessica Rosario and Carmela Rosario. The letter of support speaks to Mr. Riahi's supportive, responsible and loyal nature, as well as his continued growth and development. Mr. Riahi's friends, Mr. Gruchy and Mr. Gottlieb, are also sources of support and encouragement. The Crown concedes that Mr. Riahi's family and community ties are important mitigating factors and that his rehabilitative potential is evident.

Remorse

[60] Second, Mr. Riahi has expressed remorse for the conduct that resulted in his convictions. In the PSR, Mr. Riahi expressed regret that he was walking around with a firearm and that he would never do that again, saying it's not safe and anyone could get hurt. Although the investigation that led police to execute the Feeney warrant where Mr. Riahi was staying was a project case relating to a particular gang, Mr. Riahi denies any gang affiliation, stating that he does "not want to be around people where I have to watch my back every minute."

[61] Mr. Riahi has demonstrated significant insight into the causes and consequences of his conduct. He accepts responsibility for his choices. The IRCA report quotes Mr. Riahi as admitting that "I lost a lot of my time and opportunities dealing with the stupid decisions I made as a kid…. My choices were a correlation with my environmental circumstances, emotional issues, and lack of direction at the time." At another part of the report, Mr. Riahi recognized that lost time, poor decisions and a lack of skills led to his circumstances. He expressed his belief that "he needs to be held accountable for any wrongdoings that are just and fair." His girlfriend, Jessica, confirms that Mr. Riahi thinks a lot about life and how things have played out.

[62] Third, it is also significant that while on bail and when Mr. Riahi was previously on probation, he adhered to all necessary conditions. He was described by his supervising probation officer as pleasant and cooperative.

[63] I note that while Mr. Riahi did not plead guilty, he was justified in pursuing the Charter application. Moreover, Mr. Riahi was acquitted of the drug-related charges. The trial was conducted in a responsible and efficient manner, with the defence conceding facts that resulted in the convictions on the firearm offences.

Systemic Factors

[64] Mr. Riahi identifies as a Muslim, African Canadian of Tunisian and Tanzanian heritage. The defence requests that this court take into consideration the systemic factors embedded in the criminal justice system that work consistently to the disadvantage of young Black men such as Mr. Riahi.

[65] In Morris, at para. 102, the Court of Appeal confirmed that social context relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing. Where past hardship including the impact of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. While a direct causal link is not required, there must be some connection between the overt and systemic racism identified in the community and the circumstances that are said to explain or mitigate the criminal conduct in issue: Morris, at paras. 96-97.

[66] As the Court of Appeal pronounced in Morris, at para. 76, "[e]vidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts and not to the seriousness of the crimes." Further, in Morris, at para. 81, "the social context evidence was found to provide a basis upon which the trial judge could give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence."

[67] In this case, the PSR and IRCA Report provide considerable insight into the significant impact of anti-Black racism on Mr. Riahi and the potential connection between his experiences with systemic racism and the offences at issue in this case. It is clear that Mr. Riahi has had to contend with systemic, anti-Black racism throughout his life. The IRCA Report summarizes the compounding impact of parental abandonment; economic disadvantage; growing up in a marginalized, over-policed neighbourhood characterized by violence; discriminatory discipline at school; and repeated interactions with law enforcement from a young age. Ms. Nabhan made deliberate efforts to separate and shield her sons from the negative influences in their environment; however, those influences proved overwhelming. Mr. Riahi recognizes his disadvantaged circumstances but also acknowledges that he made choices.

[68] I find a clear connection between the overt and systemic racism that Mr. Riahi experienced and the circumstances relating to the criminal conduct in issue. In my view, Mr. Riahi's circumstances are similar to those in Morris, where the Court of Appeal found that it was open to the trial judge to find that anti-Black racism was connected to the defendant's strong fear for his personal safety in the community and mitigated his moral blameworthiness for choosing to possess a loaded gun: Morris, at para. 100.

[69] In Mr. Riahi's case, the fear was magnified because his identical twin brother almost lost his life in a stabbing and his attackers were never found. This is not to suggest that Mr. Riahi was justified in deciding to carry a firearm. As noted by the Court of Appeal in Morris, at para. 101, fear for one's personal safety is only a limited mitigating factor and does not detract from the seriousness of the offence because carrying a firearm still put members of the community and police officers at risk.

Mitigation for Breach of Mr. Riahi's Charter Rights

[70] The defence seeks a reduction in sentence based on the breaches of Mr. Riahi's Charter rights.

[71] The Crown submits that a sentence reduction is not appropriate in this case because the breaches are not sufficiently connected to the circumstances of the offence or the offender to be relevant to the sentencing process. Alternatively, the Crown argues that any sentence reduction should be minimal because the breach was not the result of intentional or egregious police misconduct.

[72] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 47-48, the Supreme Court of Canada held that where state misconduct relates to the circumstances of the offence or the offender, a sentencing judge may take the relevant facts into account in determining a fit and proportionate sentence. In doing so, it is not necessary to invoke the court's remedial power under s. 24(1) of the Charter to effect an appropriate reduction of sentence to account for the misconduct.

[73] Similarly, in Morris, the Court of Appeal upheld the trial judge's reduction of sentence by three months on account of the breach of the defendant's ss. 7 and 10(b) Charter rights. In doing so, the Court noted, at para. 174, that "[e]xcessive use of force in the course of detaining or arresting an individual, even if the arrest or detention is for a different offence than the offence ultimately prosecuted, can constitute state misconduct relating to the circumstances of the offence or offender." The effects of state interference are to be assessed objectively: R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at para. 120.

[74] In this case, the police were authorized to enter the Unit dynamically. The use of force by the two officers who initially entered the Unit was found to have been reasonable. However, I found that Mr. Riahi's rights under s. 7 of the Charter were breached because of the excessive use of force by one of the officers, PC Dodds. I further found that the search of a backpack in the Unit was not a lawful search incident to arrest and that, consequently, the search warrant for the Unit would not have been issued.

[75] The evidence is that PC Dodds stomped on Mr. Riahi's head. Mr. Riahi sustained an injury to his lip, requiring stitches, and leaving a permanent scar. Even if PC Dodds did not cause the injury to Mr. Riahi's lip, which could have been inflicted by one of the other officers, at the very least, he exacerbated it. Mr. Riahi testified at trial that he is reminded of the circumstances of his arrest every time he looks in the mirror. In the PSR, he reported that when he was arrested that day, he thought the police were going to kill him.

[76] Viewed objectively, the use of force caused a permanent, physical injury to Mr. Riahi. The defence led no evidence of any physical impairment or disability from the injury. However, the physical scar is layered on a long history of negative interactions with the police from the time Mr. Riahi was 10 or 11 years old, compounding the psychological impact on him of having to see it daily.

[77] The s. 8 Charter violations had an objectively less serious impact on Mr. Riahi. Not only did he disclaim ownership of the backpack that was the subject of the illegal search, but he also testified that he did not reside at the Unit and that it was simply a place where he stayed from time to time. As a result, the intrusion on his reasonable expectation of privacy was minimal.

[78] In my view, in the circumstances of this case, the state misconduct resulting in breaches of Mr. Riahi's Charter rights relate to the circumstances of the offender and can be taken into consideration as a mitigating factor in determining the appropriate sentence. I recognize, however, that the sentence must remain proportionate to the gravity of the offences. In my view, mitigation in the amount of three months would be in keeping with the facts of the Charter breaches, the sentencing principles, and the case law.

Duncan Consideration

[79] Mitigation can also be given on account of particularly difficult and punitive presentence custody conditions, including extended time spent on lockdown and a lack of access to facilities. In determining whether any enhanced mitigation should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused: R. v. Duncan, 2016 ONCA 754, at paras. 6-7.

[80] The defence submits that Mr. Riahi should be given enhanced credit for a portion of his time in presentence custody because of the harsh conditions in which he was held, including lockdowns and restrictions at the Toronto South Detention Centre (TSDC). The defence seeks a credit of 1.5 days for every day of lockdown, which totalled 144 days during Mr. Riahi's time in custody.

[81] The Crown does not dispute that the conditions at the TSDC have been harsh or the number of lockdown days.

[82] In R. v. Marshall, 2021 ONCA 344, at para. 52, the Court of Appeal held that "'Duncan' credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence." The Court of Appeal has stated that quantifying the Duncan credit in the same manner as the "Summers" credit for presentence custody might improperly skew the calculation of the ultimate sentence: Marshall, at para. 53.

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

[84] I am mindful of Doherty J.A.'s caution in Marshall that the quantification of Duncan credit could improperly skew the calculation of the ultimate sentence, in the sense that it could lead to a sentence that is disproportionately or artificially low. In the circumstances of this case, I find that Duncan consideration is warranted. However, I decline to assign a specific number of days and will take it into consideration in the overall sentence.

Summary of the Application of the Sentencing Principles

[85] Higher courts have consistently held that the overarching sentencing principle in firearms cases is denunciation and deterrence by the imposition of exemplary sentences: Nur, at para. 5; Brown, at para. 14.

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

[87] The circumstances of this case are not at the lower end of the seriousness spectrum. The firearm was loaded and ready for use. It was located with two over-capacity magazines and a large quantity of ammunition. Mr. Riahi was subject to an order prohibiting him from possessing any weapons. The "true crime" characterization applies. While I have found some basis for Mr. Riahi's explanation for possessing a firearm and that this mitigates to some extent his moral blameworthiness, his explanation does not diminish the seriousness of the offences at issue.

[88] Mr. Riahi's experience of systemic anti-Black racism highlights that rehabilitation should be an important sentencing objective in the circumstances: see Morris, at paras. 80-81. Moreover, Mr. Riahi's prospects for rehabilitation are strong: at 28 years old, he is relatively young. He has solid support from Ms. Nabhan, Jessica Rosario and Carmela Rosario, along with his friends and mentors. He is highly motivated to work and improve his situation.

[89] In addition, Mr. Riahi's statements in the PSR reflect that he has matured, reflected deeply on the consequences of his conduct, and developed insight into his circumstances.

[90] Based on all of the circumstances, taking into consideration the gravamen of the offences, as well as the aggravating and mitigating factors detailed above, and applying the principles of totality and restraint, I find that an appropriate global sentence is four years, which I apportion as follows: 30 months for the firearm offences; nine months for possession of the over-capacity magazines, consecutive to the firearm offence but concurrently to each other; and nine months for the breach of a prohibition order, to be served consecutively to the other offences but concurrently with each other.

Pre-Sentence Custody

Summers Credit

[91] Under s. 719(3.1) of the Criminal Code, Mr. Riahi is entitled to credit for pre-sentence custody at a rate of 1.5:1: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[92] The parties agree that Mr. Riahi was in custody for 283 days between his arrest and his release on bail. The total Summers credit is therefore 425 days (283 x 1.5).

Downes Credit

[93] The defence also seeks credit for the period during which Mr. Riahi was under house arrest bail. Mr. Riahi has been on house arrest bail with GPS monitoring since his release on March 20, 2023, or for 841 days. The defence seeks a credit of 210 days, or a day of credit for each four days of house arrest.

[94] The Crown's position is that being on bail will always involve a measure of interference with a person's liberty interests: see R. v. Bullens, 2021 ONCA 421, at para. 4. The Crown notes that at no time did Mr. Riahi attempt to have the terms of his bail amended to allow him to work or take courses.

[95] The Court of Appeal has held that it is an "error in principle" for a trial judge to fail to take into account as a mitigating circumstance in sentencing time spent under stringent bail conditions, especially house arrest: R. v. Downes (2006), 79 O.R. (3d) 321, 208 O.A.C. 324, at para. 33. The determination of enhanced credit is not the product of a formula but is within the discretion of the trial judge.

[96] The criteria to be considered in assessing the weight of the mitigation to be given includes the amount of time spent on bail conditions, the stringency of those conditions, their impact on the offender's liberty and the ability of the offender to carry on normal relationships, employment and activity. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge.

[97] The onus is on the offender to establish the facts supporting the impact of the conditions on a balance of probabilities in accordance with s. 724(3) of the Criminal Code: R. v. Place, 2020 ONCA 546, at para 20.

[98] At all times, Mr. Riahi has abided by the stringent conditions of his release. Mr. Riahi reported that it was difficult to remain at home and not to be able to work or pursue his studies while on bail. This is supported by Jessica Rosario's comments in the IRCA Report. As the Crown notes, however, Mr. Riahi did not seek to vary the terms of his bail. Mr. Riahi could maintain his most important relationships, as he was living with his girlfriend and allowed to leave his residence with any of his sureties. However, Mr. Riahi was not permitted to speak with his brother, which has been hard on him, given their close relationship.

[99] In view of the relevant considerations, including the amount of time Mr. Riahi was on bail, the stringency of the terms and the level of interference with Mr. Riahi's activities, I exercise my discretion to allocate Downes credit for the time Mr. Riahi spent on bail, although I decline to assign a specific amount to it.

Disposition

[100] After subtracting Summers credit, as well as credit for Duncan consideration and Downes credit, and three months for the Charter breach, the sentence that remains to be served is 17 months, which I apportion as follows: ten months to the firearm offences, four months to the prohibited device offences and three months to the breach of a prohibition order.

[101] For the foregoing reasons, Mr. Riahi is sentenced to a global sentence of 17 months, apportioned as follows:

• Ten months for the offence of possessing a loaded prohibited firearm, without being the holder of an authorization permitting such possession, contrary to s. 95(1) of the Code (Count 1 on indictment CR-24-20000554);

• Four months for two counts of unlawful possession of a prohibited device, an overcapacity cartridge magazine, while knowingly not being the holder of a licence permitting such possession, contrary to s. 92(2) of the Code (Counts 2 and 3 on indictment CR-24-20000554), concurrent to each other but consecutive to the offences under ss. 95(1) and 117.01(1);

• Three months for the four counts of the offence of breach of a weapons prohibition order made under s. 109 of the Code, contrary to s. 117.01(1) of the Code (Counts 1 to 4 on indictment CR-24-20000554) concurrent to each other but consecutive to the offences under ss. 95(1) and 92(2).

Probation

[102] The defence had indicated that in the event of a conditional sentence, Mr. Riahi would be prepared to make "reparations" by volunteering and seeking community supports. The PSR also recommended certain conditions in the event that a conditional sentence was ordered.

[103] In my view, it is in the best rehabilitative interests of Mr. Riahi that following his release from the custodial portion of his sentence, he should be subject to the terms of a probation order for a period of 18 months.

[104] In addition to the statutory terms under s. 732.1(2) of the Code, the probation order will include the following terms:

(a) Mr. Riahi shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer;

(b) Mr. Riahi shall reside at an address as approved by the probation officer and not change that address without prior approval from the probation officer;

(c) Mr. Riahi shall seek and maintain gainful full-time employment, or attend an educational facility on a full-time basis;

(d) Mr. Riahi shall participate in any counselling programs that may be recommended by his probation officer and sign any releases necessary to monitor his compliance with this condition. A number of culturally responsive resources were enumerated in the IRCA Report;

(e) Mr. Riahi shall abstain absolutely from the possession or consumption of any non-medically prescribed drugs;

(f) Mr. Riahi shall perform 100 hours of community service, as directed by the probation officer;

(g) Mr. Riahi shall abstain from owning, possessing or carrying any weapon; and

(h) Mr. Riahi shall not apply for or possess a firearm acquisition certificate or any other form of gun licence.

Ancillary Orders

[105] The following ancillary orders shall be made: a DNA order under s. 487.051(3) of the Code; a weapons prohibition order for life under s. 109 of the Code; and a forfeiture order for all items seized under s. 491 of the Code.

Nishikawa J.

Released: September 3, 2025