R. v. Haque, 2019 ONCJ 466

ONTARIO COURT OF JUSTICE CITATION: R. v. Haque , 2019 ONCJ 466 DATE: 2019 06 27 COURT FILE No.: 18-15009608-00 Toronto Region – Old City Hall BETWEEN: HER MAJESTY THE QUEEN — AND — NAIEMUL HAQUE Before Justice H.

Pringle Heard on May 31 and June 11, 2019 Reasons for Judgment released on June 27, 2019 Nathan KRUEGER.............................................................................. counsel for the Crown John ROSEN.................................................................................. counsel for the accused PRINGLE J.: FACTUAL OVERVIEW [ 1 ] Up until age 19, Naiemul Haque lived a positive and uneventful life. He was raised here in Toronto by loving parents, who raised his sister and him to work hard and get an education. Before November 17, 2018, Mr. Haque appeared to be on a positive track in life.

No doubt he was making his parents proud. He graduated from high school successfully. He had no criminal record or involvement with police. [ 2 ] His sister, in a compelling letter to the Court, revealed many positive aspects of her brother’s character. He was compassionate, caring, and extremely bright. He participated in Toronto Playgrounds baseball every summer, while working a series of part time jobs and full time employment. [ 3 ] This full time employment including working at a fast food restaurant for about 1 ½ years, in order to save money for post- secondary education. His employer confirmed Mr.

Haque was reliable, honest, possessed a good work ethic and leadership skills. At this restaurant, his sister advised, Mr. Haque would sometimes give leftover food to homeless people who fell asleep at the tables. Subsequently, he worked in west Toronto for a cleaning company. He had, and still has, a steady girlfriend who is now in college. [ 4 ] Mr. Haque also knew, somehow, a young man named Camar Hylton. A bunch of young men, including Camar Hylton, were hanging around a Popeye’s restaurant on a Saturday night in November 2018. At about 3:45 a.m., a grey Mazda stopped in nearby Loretto Lane.

The occupants of this car have never been identified. When Mr. Hylton stepped out of the restaurant briefly, this Mazda parked nearby. [ 5 ] Mr. Hylton stepped in the Popeye’s and out again, the second time accompanied by other men. His group spoke with the occupants of the Mazda. The car then re-parked, partially on the sidewalk, partially in Loretto Lane. Its occupants stepped out. [ 6 ] At some point that night, the defendant Naiemul Haque received a phone call requesting his presence at this same Popeye’s. Mr. Haque and his girlfriend had been having a bite to eat at Yonge and College when he got this call.

Afterwards, they finished their meals and drove together to Bloor and Bathurst. Mr. Haque got out of the car, alone, telling his girlfriend he would be right back.

[ 7 ] Hoodie up, Mr. Haque walked towards Bathurst and Bloor. Meanwhile, Mr. Hylton, alone, walked towards Mr. Haque. The two spoke, briefly. Mr. Haque then moved towards the men standing near the Mazda. Inside his right jacket pocket was a loaded handgun. [ 8 ] When he got closer, Mr. Haque drew this handgun and pointed it at the men near the Mazda. But at the same moment, one of those males drew a gun and fired at Mr. Haque. A second unknown male then produced another gun, and also fired it at Mr. Haque. [ 9 ] Mr. Haque discharged his handgun, intending not to scare or threaten but to endanger lives.

His bullet struck no one. But as he fired, a bullet struck him in the arm. Mr. Haque fired again, this time by lowering his gun and shooting at the road. The facts suggest this second shot was not deliberate. [ 10 ] No one other than Mr. Haque was injured. But the front fender of a taxi, stopped at Bloor and Bathurst behind Mr. Haque, was struck by one of the bullets discharged during the gunfight. There were passengers inside that cab, who felt the bullet impact and were legitimately terrified. [ 11 ] After shots were fired, everyone scattered. Mr. Haque, running, stopped briefly to give the handgun to Mr.

Hylton. He then ran alone to his car. Mr. Hylton, meanwhile, ran back and fired that same gun, several times, down Loretto Lane at the fleeing Mazda. Innocent parties were nearby in Loretto Lane, in a car, when these bullets were fired. [ 12 ] Based on all information known to police, Mr. Haque was the only person who was struck by a bullet that night. The Mazda and the other car in Loretto Lane were never located. The taxi driver, and the passengers, were physically uninjured. There was no victim impact evidence. [ 13 ] Mr. Haque drove himself to hospital to have his gunshot wound treated.

Shortly after, he was arrested, and has been in custody since. The gun he and Mr. Hylton used was never recovered by police. MOTIVE FOR THE OFFENCE [ 14 ] Looking at Mr. Haque’s upbringing, it is hard to understand how he got here. It is hard to understand how the young man who fed the homeless became the young man who fired a bullet at other human beings in public. [ 15 ] To explain this, Mr. Rosen advised that the men from the Mazda were members of a larger street gang. They had been pressuring Mr. Haque and members of a smaller street gang, that Mr. Haque was “friendly with”, to join them. As a result, Mr.

Haque was constantly pressured. He was assaulted at work by this gang. He was subsequently assaulted in jail by this gang. The ongoing victimization drove him to fire a gun at his tormentors. [ 16 ] But Mr. Kruger objected to these factual assertions made in defence submissions. He argued there was no evidence about the extent Mr. Haque was involved with either gang, or the extent of any pressure to join, or any evidence at all that Mr. Haque’s victimization came at the hands of this larger gang.

He cautioned against drawing speculative inferences from evidence of the [ name of restaurant omitted ] assault and the jail assault. [ 17 ] Moreover, Mr. Kruger did not take the position that Mr. Haque was an actively involved member of this smaller gang. If he were, Mr. Kruger correctly pointed out, this would not be mitigating and if proven beyond a reasonable doubt, could be used to seriously aggravate Mr. Haque’s sentence. [ 18 ] I have no doubt that Mr. Rosen’s submissions were made in good faith. They always are.

But given that this aspect of his submissions was disputed by the Crown, I would require an evidentiary foundation to draw the conclusion he invites. I have no such foundation. This is not to say the events Mr. Rosen described did not happen. But the court lacks sufficient evidence to connect either this shooting or the assaults with gang activity. Accordingly, I have not relied upon suggestions of gang association to favour either side. THE GUILTY PLEA AND POSITION OF THE PARTIES [ 19 ] Mr. Haque’s wish to accept responsibility for his actions became apparent during the Judicial Pretrial process.

Although target preliminary hearing dates were set, given the in-custody status of both accuseds, Messrs. Kruger and Rosen continued to work towards resolution. On May 31 st , 2019, Mr. Haque pled guilty to one count of discharging a firearm with the intent to endanger life, contrary to s. 244(1) of the Criminal Code . Anyone who commits this particular crime faces a minimum sentence of five years in jail. [ 20 ] Mr. Kruger sought Mr. Haque jailed for six years less presentence custody. Mr. Rosen argued for five years jail less presentence custody and enhanced Duncan credit. More specifically, Mr.

Rosen submitted the occurrence and effects of a significant beating that Mr. Haque received, at the Toronto South Detention Centre, should further mitigate sentence. No mitigation was argued in relation to lockdowns at the jail. APPLICABLE PRINCIPLES OF SENTENCING [ 21 ] By law, every sentence must reflect the seriousness of the offence committed and the offender’s degree of responsibility in committing it. Mr. Haque’s sentence must reflect the seriousness of his specific offence, his level of culpability, and any harm he caused victims and community. Even though Mr.

Haque was the only person harmed by a bullet that night, his sentence must reflect the community harm done by his involvement in a shoot-out in public. There were innocent people all over that street. They were in restaurants, in cars and taxis, and no doubt on the sidewalk. It is only by chance that Mr. Haque did not take someone’s life that night. [ 22 ] This means that Mr. Haque’s sentence must denounce his criminal offending. His sentence must serve as a message, both to him personally and to like-minded people, that firing a gun on the streets of Toronto will carry a heavy price.

That price must include separating Mr. Haque from society for a substantial period of time. His sentence must be significant enough that it stops Mr. Haque from ever picking up a gun again. It must deter other people from picking up a gun and firing it at another person.

[23] At the same time, the sentence cannot quash any desire he currently has to rehabilitate himself. It must help Mr. Haque to takeresponsibility for his crime. It must help him gain insight into how he got here, inside the prisoner’s dock in this courtroom, instead ofbeing at home with his family. The sentence must help Mr. Haque return to a prosocial path and make better choices when he isreleased. [24] General deterrence and denunciation are crucial objectives to achieve in every firearm-related sentence, especially one asserious as discharging a firearm. However, Mr.

Haque was but 19 years old at the time, and as the Court of Appeal cautioned in R. v.Araya, 2015 O.J. No. 6413, general deterrence and denunciation should not overwhelm the analysis when sentencing youthful offenders.Mr. Araya was sentenced as a party to manslaughter, where during a robbery a boy was fatally shot. In reducing his 8 year sentence to 6years on appeal, the Court held at para. 19: A fit sentence for Araya must be proportionate to the gravity of his offence and to his moral blameworthiness.

And it must be assessed inthe context of the purposes and principles of sentencing in s. 718 of the Criminal Code. I agree with the trial judge that in this case theobjectives of ‘paramount concern’ are general deterrence and denunciation. However, because Araya is a youthful offender,rehabilitation should also be given significant weight”. [emphasis added] [25] Similarly, in R. v. Brown, 2015 ONCA 361, the Court of Appeal described the tensions engaged in sentencing a youthful firstoffender who commits a very serious crime.

At para. 5, they concluded: In our view, while individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance andweight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle of sentencing statedin s. 718.2 of the Criminal Code: ‘a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender’. [26] Accordingly, the Court overturned the 9 year sentence imposed on a youthful first offender who committed a violent homeinvasion.

The victim had been beaten, covered in gasoline, and threatened with ignition in order to effect the theft of her long guns. Sevenyears, the Court held, would reflect the proper balancing of these sentencing principles. At para. 7, they said: General deterrence and denunciation had to be weighed heavily in sentencing this serious violent crime. However, it was an error to saythese factors had become ‘the primary consideration’. The primary objectives in sentencing the youthful first time offender remainedindividual deterrence and rehabilitation.

In balancing the factors, the sentencing judge still had to impose the shortest term ofimprisonment that was proportionate to the crime and the responsibility of the offender, given his young age. [27] The punishment for discharging a firearm must accomplish general deterrence and denunciation. This is a most serious offence.I must not, however, lose sight of Mr. Haque’s youth and the need for his sentence to assist in his rehabilitation. IMPACT OF THE MANDATORY MINIMUM ON SENTENCING ANALYSIS [28] There is a 5 year mandatory minimum sentence for this offence.

Parliament has, in fact, increased this mandatory minimumfrom four years to five years. Clearly, Parliament means for this particular offence to be met by a substantial penitentiary term. Mr.Haque’s sentence lies on a spectrum between the minimum sentence of five years and the maximum sentence of fourteen years. [29] Here, Mr. Rosen seeks the minimum sentence of five years. Mandatory minimum sentences for firearm offences must, asMcLachlin J. held in R. v.

Morrisey (2000), 2000 SCC 39 , 148 C.C.C.(3d)1(S.C.C.) at para. 75, “act as an inflationary floor,setting a new minimum punishment applicable to the so-called ‘best’ offender whose conduct is caught by these provisions.” [30] Courts have since considered what the notion of the ‘best’ offender means. Trotter J. (as he then was), said in R. v. Johnson,2013 ONSC 4217 at para. 17: Identifying the ‘best offender’ is not as straightforward as it might seem. This classification will typically involve an assessment of theoffender’s background and a qualitative evaluation of the seriousness of the offending under s. 95.

In terms of a person’s background, thevery ‘best offender’ will be easier to identify – the person with no prior criminal record, whose (sic) has led a flawless life. But does thismean that someone who has a minor, unrelated record is not also entitled to enjoy ‘best offender’ status? In my view, there is a broaderassortment of offenders who, for the purposes of s. 95, might also be classified as ‘best offenders’. [31] Rahman J., in R. v.

Wolfe, 2018 ONCJ 602 at para. 34, summarized what to consider in assessing ‘best offender’ status: That low end of the spectrum [the ‘best offender’] would involve an offender whose conduct is relatively minor in circumstances wherethere are no significant aggravating features, and where there are significant mitigating features such as a guilty plea or a significantexpression of remorse. [32] While there are many factors that lean towards the conclusion that Mr. Haque is the ‘best offender’ in terms of his background,there are also aggravating factors that detract from that conclusion.

In particular, shooting a gun, at people, on a public street, makes themandatory minimum sentence of five years inappropriate here. The more difficult question is where, on the spectrum above themandatory minimum, to place Mr. Haque’s sentence. ASSESSING RANGE AND SIMILAR SENTENCES [33] The Court of Appeal’s decision in R. v. Bellissimo, 2009 ONCA 49, was brought to my attention, relating to range of sentencefor discharge of a firearm. While this endorsement contains no information about the offender himself, he was sentenced, after trial, forfiring several shots in a restaurant.

He directly caused one person major injury, another person minor injury, and “narrowly missedkilling” a third person.

[ 34 ] In overturning the lower court’s decision of 8½ years jail and imposing 10 years, the Court of Appeal held, at para. 3, that “the range of sentence for these kinds of serious gun related offences is between seven and eleven years”. Five years later, in R. v. Jefferson, 2014 ONCA 434 , the Court affirmed a 10 year sentence as “inside the 7-11 year range for serious firearm offences set by this court in Bellissimo ”: para. 14 . [ 35 ] Cases applying the Bellissimo range include: • R. v.

Weeden, 2019 ONSC 773 where after trial McArthur J. imposed a 9 ½ year sentence on a 23 year old man who shot a gun outside a club and struck an Uber driver in the shoulder. The defendant had a single drug-related conviction, from 8 years prior, and was on two releases and a weapons prohibition order at the time he committed this offence. • R. v. Ali, 2016 ONSC 8190 , an after trial sentencing where 7 years jail was imposed The 26 year old defendant had a minor criminal record and was on a weapons prohibition order at the time.

One year of the seven year total was imposed to reflect breaching the weapons prohibition order alone. The shooting resulted in ‘no serious injury’: para. 8. • R. v. Reis, 2017 ONSC 1961 , where Akhtar J. imposed sentence after a contested trial. Citing a “rough scale” of between 7-11 years as per Bellissimo, he imposed a six year sentence on a 28 year old first offender. The offender had taken a firearm from someone who had it out to intimidate him, and fired it five times.

One bullet hit another involved male. [ 36 ] Some jurists have queried what, precisely, kind of “serious gun related offences” the 7-11 year range applies to. As Schreck, J., in R. v. Ferdinand, 2018 ONSC 7476 , observed at paras. 47 and 49 : Bellissimo is a one-page endorsement from the Ontario Court of Appeal allowing a Crown appeal against sentence. It is not clear from the endorsement what offence the offender was being sentenced for, but it appears that there was more than one.

The only facts set out are that the offender fired several shots in a restaurant, one of which significantly injured a victim, another of which caused minor injury to a victim, and a third of which narrowly missed killing a third victim. Whether or not the offender had a prior criminal record is not indicated. *** The range identified in Bellissimo applies to ‘ these kinds of serious gun related offences’. The applicability of that decision will therefore depend on whether the offence in this case falls into that category. In my view, it does not because Mr.

Ferdinand did not intentionally discharge the firearm, unlike in all of the cases in which the Bellissimo range was applied… [ emphasis in original ] [ 37 ] The application of the Bellissimo range was earlier analyzed in R. v. Dhaliwal, 2018 ONSC 303 . Unlike Ferdinand, this did involve an intentional shooting: the offender fired a gun while standing outside an apartment door. A dispute between two parties led to the shooting, but an uninvolved third person was inside that apartment.

Wilson J. said at para. 54 and 55: Cases since Bellissimo have imposed sentences of less than seven years for firearm offences when appropriate mitigating factors are present. …. I conclude from a review of the case law post Bellissimo and Jefferson , that these cases do not set a mandated range of seven to eleven years applicable to all firearm cases. Rather these cases set a guideline in the complex process of sentencing. Unless there are significant mitigating factors, the cases for serious firearm offences post Bellissimo and Jefferson appear to fall in the seven to eleven year range.

Wilson J. then imposed a sentence within the 7-11 year range, albeit at the low end. This sentence has since been overturned by the Court of Appeal for Ontario. [ 38 ] Finally, in R. v. Larmond, 2011 ONSC 7170 at para. 26 , Belobaba J. interpreted Bellissimo as applying when there is evidence the firearm discharge caused injury : [t]he Court of Appeal in Bellissimo stated that the range for serious gun-related offences where shots are fired and someone is wounded is 7 to 11 years.

The case law indicates that the following factors are considered: the offender’s criminal record; the extent of planning or premeditation; and the seriousness or permanence of the shooting-related injury. [ emphasis added ] [ 39 ] The Court in Bellissimo was, perhaps, not this specific about what “type” of serious gun offences attract the 7-11 year range.

But the following cases have applied the Bellissimo range to facts where the intentional discharge of a firearm injured someone: • in Bellissimo itself two people were injured, one seriously; • in Jefferson , the victim was shot in the shoulder [1] ; • in Weeden , an innocent Uber driver was shot in the shoulder; • in R. v. Ali, 2016 ONSC 7121 the victim was in a busy shopping mall when he was shot in the foot; • in R. v. Reis , one of males involved in the altercation was shot in the stomach; • in Larmond , the victim was wounded in the stomach;

• in R. v. Murphy, 2016 ONCJ 67, the victim was shot in the face. [40] In Dhaliwal, where no one was injured after a gun was intentionally fired inside an apartment building, the trial judge imposedan eight year global sentence – one year for a weapons prohibition offence and seven years for the shooting itself. On appeal, the Courtoverturned this sentence. At paras. 2 and 3 of R. v. Dhaliwal, 2019 ONCA 398, they held: …the Crown concedes that the facts underlying the firearm offences in this case are not as serious as those in R. v. Danvers, (2005) (ON CA), 199 C.C.C. (3d) 490 (Ont.

C.A.) and similar cases that establish a 7 to 11 year range for ‘serious gun relatedoffences’. In light of this, and recognizing that the Criminal Code minimum sentence is a serious minimum (5 years), we are of the viewthat the sentencing judge erred in imposing a 7 year sentence. Reviewing all of the facts relating to the firing of a single bullet into a hallway ceiling between, but not in, stores and apartments in asmall strip mall building, we are inclined to reduce the appellant’s sentence by a modest amount. [emphasis added] [41] They reduced the sentence related to discharging a firearm to six years.

A one year consecutive sentence for breaching aweapons prohibition order and a recognizance remained in place. The offender, only 23 years old, had a lengthy youth and adult criminalrecord, including increasingly serious entries for violence and weapon offences. He did not plead guilty. He was sentenced after acontested Superior Court jury trial. AGGRAVATING, NEUTRAL, AND MITIGATING FACTORS [42] The following factors must aggravate Mr. Haque’s sentence: • The planned and deliberate nature of the shooting, as evidenced by Mr. Haque leaving his girlfriend alone, briefly speaking withMr.

Hylton, and then approaching the other men armed with a loaded gun; • Mr. Haque’s illegal possession of this gun, whether he had it before he arrived or obtained it along the way, and his decision tobring it to a confrontation; • The fact that Mr. Haque did not shoot into the air, or at a ceiling, or at a physical object, but at a group of people; • The public nature of his offence, taking place at a major intersection where people can be found at any hour of the day or night; • The evidence, which must have been obvious to Mr.

Haque, that there were innocent bystanders in passing cars and in the nearbyrestaurant, and; • That after being shot, he provided the gun to Mr. Hylton who went on to fire it at the fleeing Mazda again, endangering the livesof more innocent people. I should add here Mr. Kruger’s fair acknowledgment that Mr. Haque may not have been thinking about thisspecific consequence when he passed the gun to his friend, but at best for Mr. Haque, he hoped his friend would dispose of the evidence. [43] I find the following factors are neutral, and must play no meaningful

part in fashioning sentence: • The spectre of gang involvement. Mr. Rosen’s submissions carefully characterized Mr. Haque as being “friendly with” people in asmall street gang. The Crown explicitly did not take the position that Mr. Haque was an actively involved member of this gang at thetime. I did not find the April 2019 jail record entry to be compelling evidence on this point, and did not infer any gang activity wasmeaningfully connected to this shooting; • The level of intention engaged being that of endangering life.

In my respectful opinion, the gravamen of the offence cannot doublecount as an aggravating factor, although all circumstances surrounding its commission may be, and; • The fact that Mr. Haque left the scene after discharging the firearm twice. He was wounded. He went to the hospital. This isnormal and entirely neutral. [44] I find the following factors must mitigate Mr. Haque’s sentence: • Mr. Haque’s early plea of guilt in the Ontario Court of Justice, which reflects his remorse and regret for the crime he hascommitted and which separates his case from many sentencing decisions I reviewed; • The fact that Mr.

Haque was and is a very young man, being just 19 when he committed the offence and 20 years old atsentencing; • The absence of any prior criminal youth or adult record: see Sentencing, Ruby, Chan, Hasan, and Enenajor, 2017 ed. at p. 419; • The significant rehabilitative potential apparent from Mr. Haque’s school and employment background, in the letter from hissister, and the intellect and insight his own letter to the court demonstrated; • The community support Mr.

Haque is lucky to have, in his parents, his sister, and his girlfriend, all of whom are willing to movehim from Toronto upon release to ensure a more prosocial environment for him. APPLICATION TO THE CASE AT BAR [45] Turning to the sentence to be imposed, I have concluded that I am not bound by any 7-11 year range. The fact that an intentionalshooting led to someone being injured is a key difference between cases that apply Bellissimo and cases that do not. While Mr. Haque

intentionally discharged the firearm at least once, neither that shot nor the second, unintentional shot, struck anyone. [46] I appreciate that he, easily, could have wounded or killed someone by firing a gun off at Bathurst and Bloor, no matter the hourof day. I know innocent parties around him feared for their lives when he fired that gun. I appreciate the harm he did to our community,which is currently ravaged by senseless and blatant gun violence. But in sentencing, consequences matter. His bullets struck no one.

Hewas the only person injured that night. [47] The Court of Appeal, in Dhaliwal at para. 2, took into account that a five year minimum sentence is a “serious minimum”. Iadopt that characterization here. Five years in the penitentiary is a steep sentence, and reaches far towards the goals of general deterrenceand denunciation. [48] I have concluded Mr. Haque’s sentence must be above the mandatory minimum, in order to properly reflect the aggravatingfactors. I must add that the Crown’s six-year position is considered and fair.

Given the aggravating features here, particularly thedischarge of the firearm in a well-travelled public area, I cannot impose the minimum sentence. While Mr. Haque personally can becharacterized as the ‘best offender’, the circumstances of his offence do not fall neatly into that same category. [49] Returning to Dhaliwal, the Court of Appeal reduced a 7 year firearm discharge sentence to 6 years for a youthful offender, whodid not plead guilty and who had a violent criminal record.

In my view, a youthful first offender who pled guilty at an exceptionally earlyopportunity should receive less, unless they injured someone. As the Court of Appeal instructs, in R. v. Borde (2003), (ON CA), 63 O.R. (3d) 417 at para. 36: The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciationand general deterrence.

Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courtsought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. [50] After balancing the aggravating and mitigating factors, the shortest possible sentence I can impose is five years and six monthsin jail. I must add that this sentence does not represent a compromise, or ‘saw-off’ position.

Looking at the minimum sentence,considering Dhaliwal and other relevant cases, considering the aggravating and mitigating factors, I could only express the aggravatingfactors properly by adding six months to the minimum. Any more would lose sight of Mr. Haque’s status as a youthful first offender.Any less would lose sight of the aggravating factors. ENHANCING CREDIT TO MITIGATE SENTENCE [51] There is still the issue of presentence custody to be determined. Here, any mathematical corrections that Crown or defence wishto make will be warmly welcomed. As of today, Mr.

Haque has served 7 months and 5 days or 217 real days in presentence custody. At1.5 days for each day, by my count Mr. Haque’s presentence credit is 326 days. This does not end the analysis, however. [52] Mr. Haque had, upon admission to Toronto South, expressed safety concerns to correctional authorities. Deciding to remain ingeneral population, but on a unit he perceived as safe, he was badly beaten by other inmates on March 26, 2019. He suffered blunttrauma injury, including a broken nose and a fracture to the right mandible. Accordingly, Mr.

Rosen sought further mitigation in the formof enhanced credit, relying on R. v. Duncan and R. v. Simeunovich, 2018 ONCJ 581. [53] I found West J’s analysis in Simeunovich to be most persuasive and I have adopted it. More specifically, I agree with para. 114,where he held: I do not have any evidence before me that the attack on Mr. Simeunovich was in any way connected or related to the offences he wasfacing. Consequently, I cannot determine whether this attack and his resulting injuries were related to Mr.

Simeunovich’s charges orsimply the fact that he did or said something that angered his fellow inmates who were in protective custody. It is my view that Duncanwould still apply. Both Duncan and Suter are clear there are no rigid formula[s] for determining how much enhanced credit should beassessed or for taking collateral consequences into account in determining a proportionate and fit sentence. One thing is clear, I cannotreduce Mr. Simeunovich’s sentence to a point where it becomes disproportionate to the gravity of the offence or the moralblameworthiness of Mr.

Simeunovich. [54] Even absent any connection between Mr. Haque’s beating in jail, and the commission of the offence, I would still enhance hispresentence credit as per Duncan given this collateral consequence. In Simeunovich, the sentence was enhanced at a credit of 1.7 days foreach day in presentence custody. I have, in the past, enhanced presentence custody for a jailhouse beating but eschewed any precisemathematical formula in doing so. [55] Mr. Haque’s beating in jail, as well as the fact that he suffered a gunshot wound, are both available to mitigate sentence ascollateral consequences.

They cannot render an otherwise unfit sentence fit. But I have concluded they mitigate Mr. Haque’s presentencecustody to be the equivalent of one year. This closely mirrors the results of the mathematical formula used by Justice West inSimeunovich. Mr. Haque therefore has four years and six months remaining on his sentence, to be served in the penitentiary. [56] There will be an order that Mr. Haque provide a sample of his DNA. There will be an order under s. 109 prohibiting Mr. Haquefrom possessing weapons for life. Finally, the Crown sought an order prohibiting contact with Mr. Hylton. Released: June 27, 2019

Signed: Justice H. Pringle