R v Abdul-Aziz, 2023 ABCJ 98

In the Court of Justice of Alberta Citation: R v Abdul-Aziz, 2023 ABCJ 98 Date: 20230421 Docket: 220702559P1 Registry: Calgary Between: Her Majesty the Queen - and - Feysal Osman Abdul-Aziz Corrected judgment: A corrigendum was issued on September 11, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Judgment of the Honourable J ustice S.E. Pepper BACKGROUND [ 1 ] On January 23, 2023, I convicted Feysal Abdul-Aziz of 8 offences relating to an incident on July 14, 2022.

These offences are: Count 1 – unsafe storage of a firearm, s. 86(2) Count 2 – possession of a weapon for a purpose dangerous, s. 88(1) Count 3 – possession of a prohibited weapon, a handgun, without a license, s. 92(2) Count 4 – possession of a firearm without a license, s. 92(1) Count 5 – possession of a loaded prohibited firearm without a license, s. 95(1) Count 6 – possession of a firearm with an altered serial number, s. 108(1)(

b) Count 7 – possession of a firearm while prohibited, s. 117.01(1) Count 8 - failing to comply with a release order by possessing a firearm, s. 145(5)(a) [2] Count 2, 3, 4, 5 and 7 have a 10-year maximum; count 6 has a 5- year maximum and counts 1 and 8 have a 2-yearmaximum. Previous mandatory minimum sentences for the s. 95 offence have been struck down by the Supreme Court of Canada in thecase of R. v. Nur, 2015 SCC 15. [3] I note that I do not need to sentence on count 4 as that count is subject to a judicial stay pursuant to R. v. Kienapple, (SCC) and I make that order.

Facts [4] On the afternoon of July 14, 2022, Mr. Abdul-Aziz was in the passenger seat of a Jeep Cherokee. Dhia Mohommed was thedriver. The men were surveilled by Calgary City Police and this led to their arrest and search of the vehicle. A Glock semiautomatichandgun was found in a compartment hidden in the front passenger door. The restricted firearm’s magazine contained 8 live rounds of 9-millimeter Luger ammunition with a further round loaded in the chamber. The firearm’s serial number was removed.

The firearm wasplaced in the compartment with the front end facing down such that a person could easily grip it, pull it out and fire. It was the only itemin the compartment. [5] Mr. Abdul-Aziz’s left thumbprint was found on the front end of the left slide of the gun and I found that he did in factpossess the firearm on that day. [6] Mr. Abdul-Aziz had no license to possess a firearm and was in fact bound by two orders not to possess a firearm.

He wassubject to an order prohibiting him from having a firearm pursuant to s. 109 of the Criminal Code for 10 years which was imposed onJune 9, 2015 and he was also subject to a Judicial Interim Release Order with a condition that he not possess a firearm. Crown Position [7] The Crown seeks a global sentence of 6 years. They argue that this sentence reflects the primary principles of denunciationand deterrence that firearm offences of this type require. They concede no mitigating factors. [8] The Crown points out that Mr.

Abdul-Aziz’s criminal record includes a prior conviction for possession of a restricted orprohibited firearm with ammunition pursuant to s. 95(1) of the Criminal Code. The Crown argues that, while there is no longer anymandatory minimum for s. 95 offences, a sentence of 5 years for a second offence for a possession of a loaded firearm that reflects the“true crime” end of the spectrum is the appropriate sentence.

They suggest that 6 months consecutive be given for the breach of courtorder and for the removal of the serial number on the firearm. [9] The Crown urges me to consider the fact that the firearm was ready for use, accessible, and had an altered serial number asadditional aggravating factors. [10] The Crown seeks a DNA data bank order and a lifetime firearm’s ban pursuant to s. 109 of the Criminal Code. Defence Position [11] Defence counsel for Mr. Abdul-Aziz submits that an appropriate global sentence would be 2 years less a day.

He arguesfurther that this sentence should be served in the community as a conditional sentence (CSO). [12] Defence counsel urged me to apply the gap and jump principles to Mr. Abdul-Aziz’s criminal record. In his submission,Defence counsel argues that Mr. Abdul Aziz should be considered more like a first offender given the 8-year gap between his lastconviction and this one. Additionally, Defence counsel argues, that his last sentence of 11 months would require too great a jump to givea sentence in the Crown’s range. [13] Defence counsel suggests that, as this court did not find that the Crown had proven that Mr.

Abdul-Aziz was involved in acriminal enterprise, his offence is not as high on the “true crime” spectrum discussed in the Nur case, and as such, he should be given alower sentence. [14] Defence counsel argues further that, as a Black man, Mr. Abdul-Aziz experienced instances of racism in his life that led himto have a need to “prove himself.” Following the case of R .v. Morris, 2021 ONCA 680 , Defence counsel submits that Mr.Abdul-Aziz’s experience of racism should mitigate his sentence. [15] Also mitigating, according to Defence counsel, is the fact that Mr.

Abdul-Aziz did 4 months in jail awaiting trial on another,unrelated, charge for which he was recently acquitted. [16] Mr. Abdul-Aziz also had no apparent access to a means to call his wife and child in Ethiopia while in the remand center. Thisis put forward as a mitigating factor. LEGAL PRINCIPLES

Fundamental Purpose of Sentencing [17]

Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to protect society and to maintain ajust, peaceful, and safe society by imposing just sanctions that meet several objectives. These objectives are denunciation; deterrence,both specific and general; separation of offenders from society; rehabilitation; repairing harm to victims where possible; and promotionof a sense of responsibility in offenders. [18] The broad objectives of sentencing are achieved through the principle of proportionality. Under

section 718.1 of theCriminal Code, it is a fundamental principle of sentencing that a sentence be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. As stated in R v Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089: ...proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on anoffender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier thesentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also onthe moral blameworthiness of the offender. [para 12] [19] It is through imposing a proportionate sentence that the public can gain and maintain confidence in the administration ofjustice. A sentence that is reflective of the seriousness of the crime and the moral responsibility of an offender will be a fair sentence; adeserved sentence. The Parity Principle [20]

Section 718.2(

b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. [21] In R v Friesen, 2020 SCC 9, the Supreme Court of Canada provides direction to trial judges on giving effect to the principleof parity. At paragraphs 32 and 33 the Court states: Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application ofproportionality will lead to parity.

Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity norproportionality (R v L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R v Ipeelee, 2012 SCC 13[2012] 1 S.C.R. 433, at paras.78-79). In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced fromfirst principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencingprecedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collectiveexperience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. [22] The Supreme Court in Friesen confirms that while certain offences will need to give primacy to denunciation and deterrence,sentencing judges can exercise discretion to affect the principles of sentencing as the situation may dictate.

The Restraint Principle [23] The restraint principle operates to prevent offenders from being easily incarcerated by making it clear that prison should bethe sanction of last resort. The principle of restraint is codified in ss. 718.2(

d) and (e). Both provisions are intended to remedy theacknowledged overuse of incarceration as a criminal sanction in Canada. The restraint principle operates both when deciding whetherincarceration is an appropriate disposition and, if it is, when fixing the length of that incarceration. The restraint principle, however,operates within the boundaries set by the fundamental principle of proportionality. [24] Although the restraint principle applies when sentencing all offenders, s. 718.2(

e) applies with “particular attention to thecircumstances of Aboriginal offenders.” The Gap and Jump Principles [25] Defence counsel’s argument that Mr. Abdul-Aziz should qualify for a sentence of under two years, is based largely on hisargument that Mr.

Abdul-Aziz should be viewed as a first time offender due to the gap between his first conviction for s. 95(1) and thisconviction. [26] The gap and jump principles are not codified principles of sentencing but they have become part of the group of factors thatcourts will consider in sentencing. [27] The gap principle suggests that if a person has a large enough gap between their current offence and a prior criminal record,that record should be given reduced or even no weight in the sentencing as an aggravating factor. [28] The jump principle suggests that sentences for repeat offenders should increase gradually rather than by large jumps. [29] The Alberta Court of Appeal considered the jump principle in the case of R. v.

Muyser 2009 ABCA 116. In Muyser, theCourt of Appeal decreased a sentence of 3 years to 18 months based on the jump principle. The court found that the jump principle “doescontemplate a progression in the length of sentence imposed in the event of recidivism for the same offences” (para 7). The court states:

While the jump principle is often one of the least significant mitigating factors in sentencing, it does remain relevant in certain cases.This is especially so where the court is concerned to ensure that the offender is not being re-punished for past offences. [para 8] [30] In Muyser, the court does remark that “typically, the jump principle has more room for potential application where theoffences are at the relatively less serious end of the criminal conduct spectrum” (para 9). [31] There is no specific rule as to how both the gap principle and the jump principle should be applied in an individual case.

Itwould appear that both principles are really varietals of the parity principle and the concept of proportionality; namely, that a sentenceshould be proportionate and similar to other offences and other offenders. [32] The seriousness of both the current and the previous offences will clearly be important factors to consider in any analysis, aswould the similarity between the two sets of convictions. The Mitigation of Anti-Black Racism [33] Defence counsel argues that the Mr. Abdul-Aziz’s experience of anti-Black racism is mitigating.

To understand this argument,it is helpful to understand the context within which this issue has been analyzed by Canadian Courts in two Appellate level cases: R. v.Anderson, 2021 NSCA 62, and R. v. Morris, 2021 ONCA 680 . R. v. Anderson, 2021 NSCA 62 [34] In the case of Anderson, the offender Anderson was a young man of African descent living in Nova Scotia. Anderson wasfound in possession of a loaded .22 caliber revolver following a traffic stop. The trial Crown sought a sentence of 2 to 3 years butAnderson received a conditional sentence of two years less a day followed by probation.

On Appeal, the Crown did not dispute theconditional sentence but rather asked the court to provide guidance on how to assess individuals of African descent in the Nova Scotiacommunity. [35] In upholding the conditional sentence, the Nova Scotia Court of Appeal considered how the history of anti-Black racism inNova Scotia could be used to affect the sentencing process. The Court concluded that judges sentencing black individuals in Nova Scotiashould look at how racism has affected a particular individual.

They should also examine how the effects of growing up in a communitywhich has a deeply entrenched historical disadvantage based on systemic racism have impacted that person.

These factors would beevaluated in the same way they are applied when sentencing an indigenous individual and could be used to impact both the gravity of theoffence and the moral blameworthiness of the offender. [36] In the Anderson case, Justice Derrick, writing for the panel, found that just as the history of Indigenous people in Canada isdistinct, as is their place in our legal and constitutional framework, African Canadians in Nova Scotia have experienced many of thesame effects of discrimination and marginalization. Justice Derrick observed that R v.

Ipeelee, 2012 SCC 13 , established thatthere is "nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken intoaccount for other, non-Aboriginal offenders" (para. 93). [37] Justice Derrick found that Nova Scotians of African descent have a distinct history reflected in how they arrived in Canadaand their experience over the past 400 years. This history is rooted in systemic and institutionalized racism and injustice.

The history ofAfrican Nova Scotians includes re-enslavement of freed slaves by profiteers, forced migration as the chattels of American loyalists afterthe revolutionary war, servitude to Loyalist households even for free slaves, lawful segregation in schooling and public life, and thedenial of ownership of real property.

The experience of racism and segregation “inflicted deep transgenerational wounds” (para 99).Justice Derrick explains that the “history of slavery and racism, the trauma of marginalization and exclusion, discrimination and injusticeare the threads that woven together are the fabric of the lives of many African Nova Scotian offenders” (para. 102). [38] In order to understand how this history intersects with Mr. Anderson, the trial court ordered an Impact of Race and CultureAssessment (IRCA) and heard evidence from the report’s authors and two other witnesses. The IRCA established that Mr.

Andersongrew up in a poor black neighborhood. His father was from rural Nova Scotia and was an alcoholic and died when he was eight yearsold. [39] The author of the IRCA spoke of Anderson’s “extreme proximity” to gun violence in the African Nova Scotia community.His best friend had been shot dead, which influenced Mr. Anderson sense of threat and personal vulnerability. Evidence was also calledaddressing the lack of Afrocentric education for black students.

There were also few black teachers, counsellors, and administrators.Anderson had struggled in school and had sporadic employment opportunities. [40] Justice Derrick concluded that Mr. Anderson's life was characterized by “poverty, housing instability, family breakdown, alack of culturally relevant educational opportunities, limited employment prospects, lack of positive role models, disrupted communityattachments, transgenerational trauma, loss of close friends to violence, and hopelessness” (para 101).

Justice Derrick quoted from theauthor of the IRCA that “young Black men are dramatically overrepresented on both ends of the gun” (para 101). [41] While evidence of the systemic existence of racism was presented in the Anderson case, Justice Derrick was clear that thiswould not necessarily be needed in future cases. She explains: Like racial prejudice, acknowledged by the Supreme Court of Canada in R. v. Spence as "notorious and indisputable", the existence ofanti-Black racism can be admitted on the basis of judicial notice without the need for evidence.

Judges are entitled to take notice ofracism in Nova Scotia and have done so. There is no justification for requiring offenders to produce viva voce evidence of this pernicioushistorical reality. [para 111] [42] Justice Derrick looks to the principle of restraint codified in s. 718.2(

d) of the Criminal Code with a view to “reversing the

trend of over-incarceration of Black offenders” (para 161). She concludes that imposing a conditional sentence where the statutory pre-requisites have been met, can “underpin and fortify a restrained, restorative, approach and allow for a sanction that is responsive to thedisproportionate incineration of African Nova Scotians” (para 163). [43] It is important to note that the Anderson case was exclusively focused on the unique history and context of African NovaScotians.

Justice Derrick states at paragraph 14 of her judgment that “these reasons are intended as guidance for judges sentencingAfrican Nova Scotian offender.” The court was clear in finding that the history of African Nova Scotian’s had many similarities to thehistory of indigenous peoples. R v. Morris, 2021 ONCA 680 [44] The Ontario Court of Appeal considered the issue of anti-Black racism in a gun sentencing in the case of Morris. Mr. Morriswas found guilty of carrying a loaded, prohibited handgun contrary to s. 95 of the Criminal Code. Mr.

Morris had been a suspect in ahome invasion robbery and was approached by police. He ran from the police, dropping his coat in a stairwell. The coat had a loadedfirearm in it. In the end, he was not tied to the robbery. He was given a sentence of 15 months plus 18 months probation at trial. TheCrown appealed. The Court of Appeal substituted a sentence of 2 years less a day. [45] The Court of Appeal in Morris took a different approach to sentencing a Black offender than the court in Anderson.

The courtin Morris agreed with the court in Anderson that anti-Black racism is a real phenomenon in Canadian society and can be acknowledgedthrough judicial notice. However, the court in Morris found that not all individuals of African descent would experience systemic racismin the same manner and evidence would need to be called about the circumstance of a particular individual’s experience with racism. The court found that, in some cases, the existence of anti-Black racism and the disadvantages that flow from this reality could reduce themoral culpability of an offender.

The court was clear, however, that these same factors could not reduce the seriousness of the offence.As such, in Morris, the existence of racism becomes one of the individualized factors provided to trial judges to consider at a sentencingwhen determining an offender’s moral blameworthiness in the context of a fit and proportionate sentence. [46] The trial judge in Morris relied heavily on two reports filed by the defence counsel. The first was the “Expert Report onCrime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” (The Report).

In the Report, the author provided ahistorical and social account of the Black experience in Canada. The Report draws a connection between the history of racism towardBlack people with the institutional and systemic discrimination that exists today. The Report “explains how systemic discrimination inmany social institutions marginalized Black people in communities marked by poverty, diminished economic and employmentopportunities and a strong police presence” (Morris, para 39). [47] The Report was used in Morris to help the trial judge understand how the offender Mr. Morris ended up in his situation.

TheCourt of Appeal recommends that all trial judges and lawyers read the Report (para 43). The Report is focused primarily on the Torontocommunity, but it does also speak to the wider experience of Black people in Canada.

The Report contains the fact that 80% of BlackCanadians in Toronto feel that police treat Black people worse than White people; that half of the Black student population in Torontoreport being stopped and questioned by the police on 2 or more occasions compared to 23% of White students; and, that, whereas Blackpeople represent just 2.9% of the overall Canadian population, they account for 9.3% of the total federal prison population. [Page 11,Appendix A of R. v. Morris, 2017 ONSC 4298] [48] A second report filed in Morris discussed Mr. Morris’ specific background. That report indicated that Mr.

Morris’ life wasmarked by violence and fear, circumstances that are both linked to anti-Black racism. The report included information that Mr. Morrishad been stabbed a few years prior to the incident before the court. The report concluded that Mr.

Morris lives in fear of the police andof other possible offenders, stating that he “fears both freedom and incarceration.” The Court of Appeal accepted this evidence statingthat “there can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender’scommunity and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background andcircumstances.” The court found that “the evidence is not only admissible, it is, in many cases, essential to the obtaining of an accuratepicture of the offender as a person and a part of society” (para 91).

Judicial Notice [49] The Court of Appeal in Morris noted that, in a manner similar to Indigenous peoples in Canada: ….the experience of Black people in Canada is also marked by discrimination. Black people share with Indigenous peoples many of thesame disadvantages flowing from that discrimination. The reports filed on Mr.

Morris’s sentencing speak eloquently to the historicalroots of that discrimination and its pernicious ongoing effect on many aspects of the day-to-day lives of Black people in Canada. [para 9] [50] The Court of Appeal in Morris found that the existence of anti-Black racism is so fundamental to Canadian society that “weaccept, as did the trial judge, that the trial judge could have taken judicial notice of many of the historical and social facts referred to inthe report” (para 42).

Link to Offender/Moral Culpability [51] The Court of Appeal in Morris was clear, however, that the use that can be made of this judicial notice is limited to what canbe specifically linked to the offender.

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour.

Everyone agrees there can be no such discount . [para 97] [Emphasis added] [ 52 ] The trial judge in Morris indicated that, as systemic racism effectively limited the choices available to Mr. Morris, the seriousness of the crime was, for him, reduced. The Court of Appeal rejects this premise, while at the same time accepting that these factors could work to reduce moral culpability. Evidence 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.

Possession of a loaded, concealed handgun in public is made no less serious, dangerous, and harmful to the community by evidence that the offender’s possession of the loaded handgun can be explained by factors, including systemic anti-Black racism, which will mitigate, to some extent, the offender’s responsibility. [para 76] Deterrence and Denunciation [ 53 ] The court in Morris finds that the principles of denunciation and deterrence are so paramount in the sentencing of gun cases that a sentence of incarceration – even in the face of many mitigating factors – will usually result.

Indeed, the court finds that this is no less true in Black communities like the one that produced Mr. Morris: As pointed out in the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, Black communities experience a disproportionate share of serious violent crime in the Toronto area. Black youth in particular report higher levels of both violent victimization and violent offending than youth from other racial groups. Law-abiding members of those communities are the victims of overt and systemic anti-Black racism.

They are also the victims, both direct and indirect, of the harm caused by gun-related crimes in their communities. Are these law-abiding members of the community to be told that the message of denunciation and deterrence, which applies to gun crimes committed in other communities, is to be muted in gun crimes committed against them in their community so the court can acknowledge the reality of anti-Black racism, a reality that those members of the community know only too well?

We strongly doubt that more lenient sentences for the perpetrators of gun crimes will be seen by the law-abiding members of the community as a positive step towards social equality. Any failure to unequivocally and firmly denounce serious gun crimes, like those committed by Mr. Morris, through the punishment imposed, implies tolerance of those crimes when committed by certain offenders in certain communities . [para 85] [emphasis added] [ 54 ] The Court of Appeal in Morris concluded that the trial judge erred in holding that systemic racism and its impact on Mr.

Morris could and did mitigate the seriousness of the offence. They found, however, that the circumstances of Mr. Morris’ life assisted in explaining why he made the choices he made to carry the firearm. The moral blameworthiness of his conduct was found to be mitigated by his mental and physical health issues, as well as his education and economic disadvantages. The court found that all of these factors were influenced by the systemic anti-Black racism Mr. Morris experienced. The court also considered his lack of criminal record and his family support.

They accepted the trial judge’s finding that there was no evidence that the gun was to be used for some specific criminal purpose (para 179). [ 55 ] The court concluded that in most cases “at the ‘true crime’ end of the spectrum, a penitentiary sentence will be necessary for a s. 95 offence” (para 177). However, the mitigating factors for Mr. Morris put the sentence at the low end of the range and the court imposed a sentence of 2 years. Additional Comparative Case Law R. v.

Nur , 2015 SCC 15 [ 56 ] In Nur , the Supreme Court of Canada considered the mandatory minimum sentences for convictions under s. 95 of the Criminal Code . They found that the minimum sentences (3 years for a first offence and 5 years for a second) violated s. 12 of the Charter because such sentences could result in grossly disproportionate punishment in reasonably imaginable hypotheticals. The court concluded that, while most cases may well merit a sentence of 3 years or more, some conduct that could be caught by the

section would not. This is because s. 95 could apply to licensing offences which involve little moral fault or danger to the public. The court states at paragraph 82: At one end of the range, as Doherty JA observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade…[T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public (para 51).” At this end of the range – indeed for the vast majority of offences - a three-year sentence may be appropriate.

A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [ 57 ] Mr.

Nur was in possession of a loaded .22 caliber semi-automatic with an oversized ammunition clip. Mr. Nur possessed the handgun while he was standing with a group of men outside a community center. Another man reported feeling threated by the group, causing the center to go on lock down. When police attended, the offender Nur threw the gun under a car, where it was retrieved. Nur was 19 at the time and came to Canada as a refugee. He was hoping to attend University and had no prior criminal history. He was sentenced to 40-months incarceration.

[ 58 ] The case of Nur also involved an offender Charles who received a 5-year sentence for a second offence of possession of loaded firearm in his bedroom. [ 59 ] While no argument was made as to the general fitness of the sentence, the Court appeared to direct its mind to the issue of fitness stating in paragraph 120 of Nur : It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar.

For this reason, I would decline to interfere with the sentences that the trial judge imposed for Nur and Charles. [ 60 ] The case of Nur is important in that it demarcates an appropriate range of sentencing in cases of possession of restricted or prohibited loaded firearms that are not regulatory in nature. In these cases, significant penitentiary time will usually be appropriate. Crown Cases [ 61 ] In R v. Bird , 2022 ABPC 9 , the indigenous offender was found with a sawed-off shot gun by his leg in his vehicle while he slept. It was a loaded prohibited firearm.

He plead guilty and received a sentence of 3.5 years. The court remarked that the sentence would have been 5 years, given Mr. Birds 4 prior firearms offences, but for the guilty plea and Gladue factors. [ 62 ] In R. v. Law , 2021 ABCA 326 , the police located a loaded, sawed-off double barrel shotgun in a vehicle within easy reach of the driver. The indigenous man received a 5-year sentence for the s. 95 firearms offence. He received consecutive sentences for 3 separate possession while prohibited charges and 1 year consecutive for unauthorized firearm in a motor vehicle. His total sentence was 9.5 years.

He had a significant criminal record, including weapons offences. He was also subject to 3 lifetime firearm’s prohibitions. The Court of Appeal upheld the sentence. [ 63 ] In R. v. Kottusch , 2015 ABCA 93 , a loaded handgun was found in the accused’s possession when he was arrested for shoplifting. He was on judicial interim release and subject to two firearms prohibitions at the time. He was convicted of 17 counts, which included the s. 95 possession of the firearm. He received a 5-year sentence for the s. 95 offence but was given a total 6-year 9 months sentence.

This sentence was reduced at the Court of Appeal on the totality principle to 5 years and 9 months, with the s. 95 offence reduced to 4 years. Defence Cases [ 64 ] In R. v. Ulmer , 2020 ABQB 393 , an offender was sentenced to a 15-month CSO. The accused was 61 years old and was found in possession of a loaded rifle. He had a record, but it was his first weapons offence. The Crown sought a sentence of 18 months jail. The court found that Mr. Ulmer’s possession was low on the “true crime” spectrum and his offence had no “aura of criminality” around it (para 31). [ 65 ] In R. v.

Moses , 2020 ONSC 332 , the court imposed a 2-year CSO. The Crown sought a sentence of 3 to 4 years. A loaded handgun was found in the accused’s room after a search warrant. The accused was a middle-aged first offender. There was no evidence that the accused was engaged in other criminal activity at the time. [ 66 ] In R. v. Mero , 2021 BCCA 399 the British Columbia Court of Appeal reduced a sentence of 40 months to a 2-year CSO. The trial judge had not ordered a Gladue report and the Court of Appeal found that there were significant Gladue factors justifying the reduction in sentence. [ 67 ] In R. v.

Lugela , 2021 ABPC 310 , this court sentenced the offender to 3 years on a s. 95 offence. Mr. Lugela was in a similar situation to Mr. Abdul-Aziz, having come East Africa and being of similar age. He also had a record for firearm’s offences, although no prior conviction under s. 95 . The Crown sought a sentence of 4 years and Defence counsel suggested a 2-year sentence. Mr. Lugela possessed the loaded firearm in a bag while he was walking across a park with some other individuals. FINDINGS Particulars of Mr. Abdul-Aziz [ 68 ] No reports were requested or produced for Mr. Abdul-Aziz.

Rather, his counsel made submissions on his behalf. [ 69 ] Mr. Abdul-Aziz is 30 years old. He was born in Ethiopia on February 24, 1993. He and his mother came to Canada as refugees when he was 4 years old. He became a Canadian citizen at the age of 10 and has grown up in Calgary. He only met his father on one occasion, in 2017. Eventually, Mr. Abdul-Aziz’s mother was able to bring her brother and her two sisters to Calgary. [ 70 ] Mr. Abdul-Aziz attended an Islamic school. He says that, while there, he was subject to anti-Black racism. He was called racial slurs and felt the teachers treated him differently.

He also blames the racism for an increased number of fights. He says that this racism created a need to “prove himself.” He says that the racism continued when he left school and occurred on other jobs sites. He says his coworkers would make jokes about his race and treat him poorly. [ 71 ] Mr. Abdul-Aziz was close to his uncle. However, his uncle was shot and killed on New Years Eve in 2015. Nobody was ever charged with his murder.

[ 72 ] After his uncle was shot, Mr. Abdul-Aziz says he used opioids to numb the pain of his loss and went into a downward spiral. He tells his counsel that his mother “saved him” by sending him to Ethiopia. While there, he married and had two children who are now 4 and 3 years old. [ 73 ] He returned to Canada while his wife was pregnant with their second child. He trained as a mechanic and got a job working in this vocation but left because he says that he was constantly the butt of anti-Black jokes at his workplace.

He found the jokes “generally harmless; however, it got monotonous” (Defence Brief on Sentencing, para 26). He left the business to work in construction with friends. [ 74 ] Mr. Abdul-Aziz has support in the community. Four letters of support were filed on his behalf in the sentencing hearing from family members and friends. These letters describe him as a devoted family member, hardworking, generous, and warm-hearted. Criminal Record [ 75 ] Mr. Abdul-Aziz has a criminal record. On June 9, 2015, he plead guilty to 8 offences.

Five of the offences were failures to comply with a court order pursuant to s. 145 (3 curfew breaches and 2 weapons) of the Criminal Code . He also plead guilty to 2 counts of obstruct a peace officer contrary to s. 129 of the Criminal Code . He received fines on all the above matters. [ 76 ] On June 9, 2015, Mr. Adbul-Aziz also plead guilty to the possession of a loaded firearm pursuant to s. 95(1) of the Criminal Code . He received a sentence of 1 day, with 11 months noted as pre-trial custody. As a result of the s. 95 conviction, Mr.

Abdul-Aziz received a 10-year firearms prohibition pursuant to s. 109 of the Criminal Code . [ 77 ] The possession of the firearm occurred on September 21, 2013. The circumstances of that offence are that Mr. Abdul-Aziz was attending a concert with other young men. Someone saw one of the young men with a gun and they all ran. Mr. Abdul-Aziz took possession of the loaded firearm and tried to discard it but was caught by the police. The Gravity of the Offence [ 78 ] There can be no doubt that firearms offences are serious crimes.

The Criminal Code imposes severe restrictions on firearms and anyone wishing to possess them. All firearms must be licensed, and laws govern their storage and use.

Section 95 is punishable by 10 years’ incarceration. All of this reflects the basic fact that firearms are very dangerous. They kill and maim with efficiency, providing a shooter with no time for a sober second thought. The case law is clear that the paramount principles in sentencing a s. 95 offence are deterrence and denunciation. [ 79 ] Defence counsel points out that I did not find that the Crown had proven that Mr. Abdul-Aziz was involved in a criminal enterprise.

While this is true, I also remarked that “the presence of drugs in the driver’s side compartment provides a reason such an illegal and dangerous item might be hidden in the jeep.” I found the drugs reflected a motive for the presence of the gun (para 76). [ 80 ] Even if the drugs were not found in the motor vehicle, and even if Mr. Abdul-Aziz did not know about them, it remains the case that Mr. Abdul-Aziz possessed a loaded firearm hidden in a secret compartment in a motor vehicle; a firearm that could be accessed easily and at any moment with deadly effect.

There are no legitimate purposes for the firearm in this case. [ 81 ] This is not a regulatory offence and the facts are consistent with what is characterized in Nur as a “true crime.” The existence of the firearm in the motor vehicle brings the possession within the “aura of criminality” ( Ulmer , para 31 ). Moral Blameworthiness [ 82 ] As in every sentencing, a judge is to consider all of the principles of sentencing articulated in

section 718 of the Criminal Code , including any relevant aggravating or mitigating circumstances relating to the offence and the offender. Mitigating Factors Community Support [ 83 ] Mr. Abdul-Aziz has garnered the support of many in his community. He has people who still believe in him. This would increase his chance of rehabilitation in the community after a jail sentence. Pre-Trial conditions [ 84 ] It is argued that Mr. Abdul-Aziz suffered in pre-trial custody because he could not call his family in Ethiopia.

While there were not a lot of details about this aspect of his pretrial incarceration, I accept that it is true. I find, however, that the enhanced credit that Mr. Abdul-Aziz is going to receive as a result of his pre-trial incarceration adequately addresses this hardship. Pre-Trial Custody on other Offence [ 85 ] Mr. Abdul-Aziz’s counsel argued that his pre-trial custody on another offence on which he was acquitted could be mitigating. No case authority was presented to support this claim and I find that it is not logically related to the facts before me and is not mitigating.

Anti-Black Racism [ 86 ] I take judicial notice of the fact that racism exists in our community. There are barriers to acceptance and access for Black people. However, the fact that an individual experienced racism in their past does not automatically operate to reduce moral culpability. There must be a link between the racism and the motivating mind set that is being examined. [ 87 ] In this case, Mr. Abdul-Aziz experienced racism in the form of racial slurs as a teenager. He found this behaviour upsetting and it led to fights.

I am told that it made him feel he had to “prove himself.” Shortly after high school, he lost his uncle to gun violence. It is around this time that he is sentenced to his first offence. [ 88 ] After high school, he reports that he also experienced some of this same racist behavior while on job sites. He told his lawyer that he found these comments at times upsetting and at other times more monotonous.

In spite of a decade of growth, a “saving” trip to Ethiopia where he became a husband and father, at the time this offence was committed, he apparently still had a need to “prove himself.” [ 89 ] However, there is no obvious nexus between experiencing racial slurs and or tasteless jokes and needing to prove oneself by possessing a loaded firearm in a secret compartment in a vehicle. [ 90 ] I doubt very much that Mr. Abdul- Aziz’s family wanted him to prove himself by possessing a loaded firearm.

I read their letters and they clearly want him to prove himself by being the father, relative, worker, and man they believe him to be. [ 91 ] As presented to this court, Mr. Abdul-Aziz’s experience with racism, while no doubt challenging for him, did not result in a life of extreme marginalization or violence. Unlike Mr. Morris, Mr. Abdul-Aziz did not fear “both freedom and incarceration” due to his lived experience. [ 92 ] Generally, the people who would be impressed by, or afraid of, Mr. Abdul-Aziz’s possession of a loaded gun, are mainly criminals, gangsters, and drug dealers.

If proving yourself to this group is the goal, then the principle of deterrence must operate to deter it from forming. [ 93 ] I conclude that Mr. Abdul-Aziz’s experiences with racism, as terrible as these slurs and comments are, do not mitigate his moral blameworthiness for the possession of a loaded firearm in 2022. Aggravating Factors Criminal Record [ 94 ] Mr. Abdul-Aziz’s criminal record is aggravating. This is the second time he has possessed a loaded firearm contrary to s. 95(1) of the Criminal Code .

The first time he received a sentence of almost 1 year as a 20-year-old first offender. [ 95 ] I find that it would be contrary to logic and common sense to apply the gap principle to treat Mr. Abdul-Aziz as a first offender. He simply is not a first offender. Indeed, Mr. Abdul-Aziz is still bound by the firearm’s prohibition that was given him at the time of his first conviction. [ 96 ] I note as well that Mr. Abdul-Aziz was also bound by a release order requiring him not to possess a firearm at the time of this offence. This is a separate offence, but it is also aggravating on the s. 95(1) charge.

If anything should have reminded Mr. Abdul-Aziz of his prior criminal conviction and deterred him from doing the same thing again, it was this release condition. [ 97 ] The jump principle has little application given the seriousness of the offence. Even a first offender is generally given a significant jail sentence on a s. 95 offence. Nature/Circumstances of the Firearm [ 98 ] Mr. Abdul-Aziz possessed a firearm that was readily accessible. He would only need to put his hand into the compartment and pull it out to be ready to fire. The only way that this firearm could have been made more dangerous is if Mr.

Abdul-Aziz had been waiving it around. [ 99 ] While the nature of the firearm goes primarily to the seriousness of the offence, it is also an aggravating circumstance. Conclusion [ 100 ] I find that, after examining all the applicable principles of sentencing, including the principle of totality, the aggravating and mitigating circumstances, and the case law provided me by the Crown and Defence, an appropriate global sentence is 5 years. [ 101 ] In general, the Crown cases are more similar to the facts before me. The Defence cases involve either first offenders, or contain significant Gladue factors, or both.

I find the Nur case provides a persuasive range of sentence. I find the facts of the case before me to be near the top end of the true crime scenario. There are really no factors that mitigate in favour of a sentence below 5 years. At the same time, I find the 6 years sentence suggested by the Crown to be too high given that Mr. Abdul-Aziz has a limited record and there may still be room at the very top of the “true crime” range. I am also mindful of the principle of totality.

[ 102 ] Given my findings, a conditional sentence is not available. [ 103 ] The sentence will be broken down as follows: Count 1 – unsafe storage of a firearm, s. 86(2) 1 year concurrent. Count 2 – possession of a weapon for a purpose dangerous, s. 88(1) 2 years concurrent. Count 3 – possession of a prohibited weapon, a handgun without a license, s. 92(2) 1 year concurrent. Count 4 – Judicial Stay Count 5 – possession of a loaded prohibited firearm without a license, s. 95(1) 5 years. Count 6 – possession of a firearm with an altered serial number, s. 108(1)(b) 1 year concurrent.

Count 7 – possession of a firearm while prohibited, s. 117.01(1) 1 year concurrent Count 8 - failing to comply with a release order by possessing a firearm, s. 145(5)(a) 1 year concurrent. [ 104 ] As Mr. Abdul-Aziz has been in custody since July 21, 2022, he will have these days applied at an enhanced basis toward the 5- year sentence. [275 actual days plus 138 days of enhanced credit equals 413 days – Rounding up to Mr.

Abdul-Aziz’s benefit, this amounts to 14 months of PTC deducted from his 60 month sentence leaving him 3.8 years left to serve on his sentence] [ 105 ] There will be a DNA data bank order on count 5 pursuant to s. 487.051 and a lifetime firearm’s ban pursuant to s. 109 of the Criminal Code , also on count 5. Dated at the City of Calgary, Alberta this 21 st day of April, 2023 S.E. Pepper Justice of the Provincial Court of Justice Appearances: Matt Dalidowicz Michelle Kai for the Crown

Matthew Albert Browne for the Defence _______________________________________________________ Corrigendum of the Judgment of The Judgment of the Honourable J S.E. Pepper _______________________________________________________ The wrong paragraph was cited in paragraph 56. Paragraph changed from 95 to 82