2015 QCCQ 8222, 2015 QCCQ 8222

R. c. Adullahi 2015 QCCQ 8222 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU CITY OF GATINEAU Criminal Division No: 550-01-057761-118 DATE: September 9, 2015 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ THE QUEEN Plaintiff v.

AHMED ABDURAHMAN ADULLAHI Accused ______________________________________________________________________ SENTENCE Rendered orally at the hearing and edited ______________________________________________________________________ INTRODUCTION [ 1 ] The Court has to sentence Mr. Ahmed for uttering threats to a correctional officer when he was detained in the Gatineau Detention Center or Hull’s jail.

He already received disciplinary measures for his behavior concerning this event and has been sent to confinement each time he was transferred to Hull's prison from other detention centers because the correctional officer was working in the wing where he would normally have been sent following his security level. QUESTIONS IN DISPUTE [ 2 ] The Court has to decide the appropriate sentence for the accused. Also, the Court has to decide if it considers the disciplinary measures and the time spent in confinement each time the accused was transferred to the Hull’s prison.

POSITION OF THE PARTIES The Crown [ 3 ] Me Legault reminds the Court that Mr. Ahmed was declared guilty of uttering threats to a correctional officer. The infraction was committed on April 1 st , 2011. The accused is now serving an 8 years jail term. [ 4 ] The accused has previous convictions in similar matters. He was condemned to a 4 month jail sentence for uttering a threat against a bouncer in 2003.

Date Infraction

Section Sentence 26-08-2008 BREAK & ENTER WITH INTENT 348(1) (A) 30 DAYS (17 DAYS PRE- SENTENCE CUSTODY) 29-01-2008 FAIL TO COMPLY WITH CONDITIONS 0F UNDERTAKING GIVEN BY OFFICER IN CHARGE 145(5.1) (A) 60 DAYS 18-10-2007 Poss. of

schedule 1 substance for the purpose of Traffick 5(2) CDS Act Cocaine 12 gr. 30 DAY(S) & MANDATORY PROHIBITION ORDER SEC 109 CC & (94 DAY (

S) PRE-SENTENCE CUSTODY FAIL TO COMPLY WITH PROBATION ORDER 733.1(1) 30 DAY(

S) CONCURRENT 31-05-2007 FLIGHT WHILE PURSUED BY PEACE OFFICER 249.1(1) 90 DAY(S) (TIME SERVED) & SUSPENDED SENTENCE & PROBATION 18 MO(S) & PROHIBITED DRIVING 12 MO POSS. OF PROTERTY OBTAINED BY CRIME OVER $5000 355 (

A) SUSPENDED SENTENCE PROBATION 18 MO CONCURRENT (2 DAYS PRE-SENTENCE) 22-03-2007 RESIST ARREST 129(A 1 DAY (7 DAYS PRE- SENTENCE CUSTODY) 03-11-2005 TRAFFIC IN

SCHEDULE I SUBSTANCE 5(1) CDS ACT 8 MO & (60 DAYS PRE- SENTENCE CUSTODY) FAIL TO COMPLY WITH RECONGNIZANCE 145 (3) 1 MO(

S) CONCURRENT ORDER SEC 109 CC FAIL TO COMPLY WITH PROBATION ORDER 733.1 1 MO CONCURRENT 29-10-2004 FAIL TO COMPLY WITH PROBATION ORDER 733.1 18 DAYS CONCURRENT 19-09-2003 POSS OF A PROHIBITED OR RESTRICTED FIREARM WITH AMMUNITION 95(2) 12 MO & PROBATION 1 YR & SEC 109 CC (6 MO PRE-SENTENCE CUSTODY) FAIL TO COMPLY WITH RECOGNIZANCE 145(3) 30 DAY(

S) CONCURRENT FAIL TO COMPLY WITH PROBATION ORDER 733.1(1) CC 30 DAY(

S) CONCURRENT POSS OF FIREARM OR AMMUNITION CONTRARY TO PROHIBITION ORDER 117.01(1) 12 MO(

S) CONCURRENT POSS OF A WEAPON 88(1) 12 MO(

S) CONCURRENT UTTERING THREATS 264.1(1) (A) 4 MO(

S) CONSECUTIVE 11-04-2002 AGGRAVATED ASSAULT 268 (2) 4 MO (199 DAYS PRE- SENCENCING) 2 YR PROBATION POSSESSION OF A WEAPON 88 (1) 2 MO(

S) CONCURRENT & PROBATION 2 YR(S) & SEC 110 CC FOR 5 YR(

S) POSS 0F PROPERTY OBTAINED BY CRIME OVER $5000 355(

A) CC 2 MO CONCURRENT & PROBATION 2 YR(

S) DANGEROUS OPERATION 0F MOTOR VEHICLE 249(2) 2 MO CONCURRENT & PROBATION 2 YR & PROHIBITED DRIVING 18 MO

[ 5 ] Also, he received administrative measures for his behavior concerning this event: Date Infraction Disciplinary measure 11-03-2011 Uttering threats to a correctional officer 6 days 11-03-2011 False langage 2 days 11-03-2011 Non-conformity to disciplinary rules 3 days [ 6 ] Moreover, each time he was transferred from the other detention center to the Hull’s jail to appear at Gatineau's Court House, he served his time in confinement. According to the chief's unit, Mr. Charlebois, Mr. Ahmed spent 86 days in confinement, because the victim, correctional officer Patry, was working in the sector where Mr.

Ahmed would normally be sent to (maximum). [ 7 ] The Crown is asking for a jail sentence of 6 to 8 months to be served consecutively. The accused [ 8 ] Me Lafleur, former lawyer for the accused, suggested a period of incarceration of 30 days. She would prefer concurrent but agrees for consecutive. At the last day of representations for sentence, the accused is representing himself. He suggests considering his time served in confinement as his sentence. [ 9 ] The accused sustains that he received disciplinary sanctions for the threats and was sent to solitary confinement.

He believes he has done 11 days in confinement on sector B-2 for disciplinary issues. [ 10 ] He was sent to the jail in Rivière-des-Prairies and each time he needed to appear in the Gatineau’s Court House, he was sent to the Hull’s prison in confinement since agent Patry was working in the sector where he would normally be in custody. [ 11 ] He claims he has done at least 4 months in solitary confinement since April 1 st , 2011. ANALYSIS [ 12 ] The purpose and the principles of sentencing appear at

section 718 of the Criminal Code [1] (C.cr.) which states: 718 . Purpose — The fundamental purpose of sentencing is 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; (

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 and to the community. [ 13 ] The Court considers that in a situation like in the present file, the emphasis should be put on dissuasion and denunciation of unlawful conduct and to deter the offender and other persons from committing these types of offences. [ 14 ] Also, the sentence should be in accordance with the following principle: 718.1 Fundamental principle — A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 15 ] Finally, the sentence should be guided by the following principle:

718.2 Other sentencing principles — A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 16 ] The objective gravity of this indictable offence is liable to imprisonment for a term not exceeding five years (264.1

(2) a) C.cr .). [ 17 ] The Crown sustains that uttering a threat against a correctional officer is an aggravating factor. For example, in R. v. Charrette [2] , paragraph 9 states : [9]

Malgré les détails inacceptables encourus avant la comparution de l’accusé, le Tribunal doit considérer le principe que toute peine imposée, pour un crime commis à l’intérieur d’un établissement carcéral, doit comporter un caractère punitif qui ne peut s’exprimer autrement que par l’imposition d’une peine consécutive à toute autre peine purgée par le contrevenant. [ 18 ] The Court will consider as aggravating factors the facts that the events took place in a prison and that the threats were uttered against a correctional officer.

Also, the Court will consider the fact that the accused already served a 4 months jail term for a crime in similar matters (uttering a threat against a bouncer in 2003). [ 19 ] For the mitigating factor, the Court relies on

section 719 C.cr . : 719

(1) Commencement of sentence — A sentence commences when it is imposed, except where a relevant enactment otherwise provides. (…)

(3) Determination of sentence — In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Exception — Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

(3.2) Reasons — The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. (…) [ 20 ] Also, the Court is inspired by

section 12 of the Canadian Charter of Rights and Freedoms [3] which states : « Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. » [ 21 ] The Court specifies that the accused has already served time for another offence and will not count the time served as pre sentencing custody. [ 22 ] The Supreme Court of Canada, in R. v, Summers [4] , answers the question of ineligibility of early release and parole, while on remand as a “circumstance” that can justify granting enhanced credit for pre-sentence custody under section 719 (3.1) of the Criminal Code :

(1) Analytical Approach [70] In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged. Judges

should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. [71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.

Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1.

Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced. [72] This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre- sentence detention in all cases.

However, this does not mean that credit should be scaled back in order to “leave room at the top” of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases.

It should not lead judges to deny or restrict credit when it is warranted. [73] Indeed, individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter . (The Court underlines) [ 23 ] Moreover, in paragraph 28 the Supreme Court considers a second argument: [28] The second rationale for enhanced credit is qualitative in nature. Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities.

Consequently, time in pre-trial detention is often more onerous than post-sentence incarceration.

As Cronk J.A. noted in this case, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous. [ 24 ] The Court considers that time served in confinement is more onerous than time served in a regular sector like the Supreme Court considers that time in pre-trial detention is often more onerous than post-sentence incarceration. [ 25 ] For the fact that the accused was in confinement for a period of 11 days in administrative measures concerning his behavior in relations to these events, the Court will not take those days into consideration.

This was an internal jail disciplinary measure and it should not be subtracted to the criminal sentence. [ 26 ] The Court bases his decision on The Suprême Court case R . v . Shubley [5] :

Section 11(

h) provides protection against duplication in proceedings of a criminal nature. It does not preclude two different proceedings, one criminal and the other not criminal, flowing from the same act. The appellant consequently is answerable to the State for his crime, to the victim for injury caused and to the prison officials for breach of discipline. The prison disciplinary proceeding was not, by its very nature, criminal. Its purpose was to maintain order in the prison, not to mete out criminal punishment. It lacked the essential characteristics of a proceeding on a public, criminal offence. If appellant had been called upon twice to answer to the State for his crime, s. 11(

h) would apply.

Section 11(

h) does not operate so as to preclude his being answerable to prison officials for a breach of discipline as well as to the State for his crime. The disciplinary measures taken did not involve the imposition of true penal consequences. A true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.

The measures taken here were confined to the manner in which the inmate serves his time and involved neither punitive fines nor a sentence of imprisonment. They were entirely commensurate with the goal of fostering internal prison discipline and were not of a magnitude or consequence that would be expected for redressing wrongs done to society at large. [ 27 ] Considering the 86 days spent in confinement by the accused because the victim was working in the jail sector, he would have normally been sent to, the accused should not suffer more for administrative reasons.

In a situation like this, it becomes a cruel and unusual treatment or punishment. [ 28 ] Since he was already in detention, the Court will count that onerous time as simple time. [ 29 ] The Court believes that the Crown's lowest suggestion of 6 months of detention is reasonable considering the objective factor, the subjective factors and particularly the aggravating factors. On the other hand, the Court cannot take into consideration the mitigating factors that the accused was already sanctioned with disciplinary measures internal to the jail.

The Court subtracts the total of 86 days served in confinement for administrative reason from the Crown's lowest suggestion (180 days - 86 days = 94 days). FOR THOSE GROUNDS, THE COURT: [ 30 ] SENTENCES Mr. Abdurahman Adullahi Ahmed to an imprisonment term of 94 days to be served consecutively.

__________________________________ SERGE LAURIN, J.C.Q. Me Diane Legault Attorney for the plaintiff Himself (May 20, 2015) and Me Marie-Josée Lafleur, Attorney for the accused (October 29, 2014) Dates of hearing: October 29, 2014, May 20, 2015