R v Saeed, 2023 ABCJ 257

In the Alberta Court of Justice Citation: R v Saeed, 2023 ABCJ 257 Date: 20231130 Docket: 230516973P1 Registry: Calgary Between: Her Majesty the Queen - and - Ahmed Salim Saeed Reasons for Sentence of the Honourable Justice A. J. Brown Sentence [ 1 ] The sentence for Mr. Saeed’s crime of possession of a loaded, prohibited firearm, to which he pled guilty, is 2 years less one day, served in the community, followed by 18 months of probation. [ 2 ] The length of the conditional sentence (CSO) is reduced by credit for time spent in remand custody.

Expressed in days, the originating sentence is 729 days; that is reduced by 315 actual days, treated as 473, leaving 256 days (or approximately 8½ months) left on the CSO before the 18-month probation period. Issues [ 3 ] In determining a fit and proper sentence for Mr.

Saeed, the following issues are engaged: • Individualized sentencing and proportionality; • The serious problem of gun crime and the consequent need for denunciatory, deterrent sentences; • The effect on a sentence of systemic, anti-Black racism; • Sentencing the youthful offender; • The appropriate application of the principle of restraint; • The effect on sentence of immigration consequences; and

• The availability of a CSO. [ 4 ] Crown Counsel argued that a 3-year sentence was required to give effect to the paramount principles of denunciation and deterrence in the face of rising gun violence. A CSO was not appropriate due to the aggravating factors of the case: the loaded handgun put the community and the police at risk; the crime occurred in a residential area; and Mr. Saeed was in breach of two release orders at the time. [ 5 ] Defence Counsel argued that a CSO was the appropriate sentence for Mr.

Saeed, a youthful, racialized first offender for whom serious immigration consequences would flow from a sentence of imprisonment. The argument is bolstered by the restoring of a CSO option for all but the most serious of offences in the passing of Bill C-5 last year. Authorities Reviewed [ 6 ] In reaching my decision, I have reviewed R v Nur 2015 SCC 15 for principles of sentencing violent gun crime generally, and for a s. 95 offence of possession of a loaded prohibited firearm specifically.

For principles of the CSO, I have reviewed the seminal case of R v Proulx 2000 SCC 5 and, also, R v McCulloch 2011 ABCA 124 .

On sentencing youthful offenders, and in the context of gun crime, R v Hills 2023 SCC 2 , provided important guidance. [ 7 ] The comparator cases provided by counsel are summarized in Appendix A to this decision; they are: R v Araya 2023 ABCJ 174 ; R v Bergh 2019 ABCA 151 ; R v Buffalo 2020 ABQB 41 ; R v Bui 2021 ABPC 296 ; R v Bzezi 2022 ONCA 184 ; R v Calinesco 2017 ABPC 136 ; R v Cameron 2023 ABCJ 100 ; R v Devink 2016 BCSC 1658 ; R v Dhaliwal , unreported, January 12, 2023, Action No. 200474245P1 (ACJ); R v Fares 2017 ABQB 509 ; R v Grace 2022 BCSC 475 ; R v Lugela 2021 ABPC 310 ; R v Marshall 2015 ONCA 692 ; R v Mills 2021 BCCA 86 ; R v Mohiadin 2021 ONCA 122 ; R v Morris 2021 ONCA 680 ; R v Moses 2022 ONSC 332 ; R v Mumin 2017 ABPC 30 ; R v Pierre ; 2023 ABCA 300 ; R v Smickle 2012 ONSC 602 ; and R v Ulmer 2020 ABQB 393 .

Facts [ 8 ] On January 18, 2023, Mr. Saeed was at his mother’s home with his girlfriend. The two got into an argument around 5 pm. The argument escalated, Mr. Saeed left, and his girlfriend ran to the closest neighbour to call 911. [ 9 ] Calgary Police Service (CPS) officers responded and set up containment of the house, due to the nature of the call. [ 10 ] Mr. Saeed fled to the rear of the house, into the alley to the north. [ 11 ] Challenged by a CPS officer, Mr. Saeed reached into his satchel as he attempted to run west.

He slipped and fell on ice, dropping his satchel, got back up and continued to run, leaving the satchel behind. [ 12 ] Continuing his run south, Mr. Saeed missed being hit by a non-lethal round fired by a CPS officer, but then stopped and was taken into custody. [ 13 ] The recovered satchel contained a Glock .45 handgun, loaded with a magazine and ammunition, and one round in the chamber. Mr. Saeed did not have a licence or registration for the firearm. At the time, he was bound by two forms of release, one from August 2020, the other, from August 2022.

Conditions of those orders included house arrest and a firearms ban. Mr. Saeed [ 14 ] Mr. Saeed is 21 years old now and was 20 at the time of the offence with no criminal record. By the sentencing hearing, he had acquired a conviction for taking a motor vehicle without the owner’s consent, for which he was sentenced to pay a $400 fine. [ 15 ] He has pled guilty and has been in remand custody from his arrest to sentencing date, a total of 315 actual days, the equivalent of approximately 15½ months. [ 16 ] He came to Canada in 2019 from Ghana and is a Permanent Resident.

He is well supported by his mother, older sister and family friends, all of whom filed reference letters with the Court. [ 17 ] Mr. Saeed’s sister wrote, in part: “Salim and I despite going through harsh treatment and abuse in Ghana were so blessed and happy to start life afresh in Canada with our beloved mom. He has been very resilient in High School and tried his best to live past his inability to fit in with his peers. An example was when he would often come home from school crying and stating that it was hard for him in school as all his peers would make fun of his accent and very dark complexion.

As excited as he was to pursue his dreams, it was harder than he thought . . . .” (Exhibit S-3) [ 18 ] A family friend also referred to Mr. Saeed’s experiences in school: “He would often complain about how different he felt among his peers in high school and how he got bullied. . . . Life has been tough as a youth going through different phases but we as a family are ready to guide him and assist him to be a better person in the society.” (Exhibit S-3) [ 19 ] Assuring the Court of her love and support for her son, Mr.

Saeed’s mother commented, “Although this is the doing of Salim, I believe it is the result of very bad influences.” (Exhibit S-3)

[ 20 ] All of Mr. Saeed’s references speak of his remorse, essential goodness and how out of character his criminal behaviour is. [ 21 ] While in remand custody, Mr. Saeed has completed a Mount Royal University Life Skills Program and extensive counselling through the Safe at Home outreach program. Individualized Sentencing and Proportionality [ 22 ] Achieving proportionality in sentencing requires in every case addressing the seriousness of the crime and the blameworthiness of the offender.

It is an individualized process. [ 23 ] Within that process, ensuring that “the punishment fits the crime” means that reduction of the individual offender’s moral blameworthiness does not diminish the seriousness of the crime; rather, it affects the balancing of principles to achieve a fit and proper sentence.

Gun Crime and the Need for Denunciatory, Deterrent Sentences [ 24 ] The dramatic increase in gun violence in Canada in recent years is terrifying, given that Canadian gun laws are dramatically different from American gun laws. [ 25 ] The malign influence of highly publicized American gun crime must be countered by forceful denunciation and deterrent sentencing. [ 26 ] The Supreme Court, while striking down the 3-year mandatory minimum sentence for a s.95(1) offence as unconstitutional, made clear that exemplary sentences of 3 years or more will still be appropriate to deliver denunciation and deterrence in cases of gun violence, especially those offences that fall in the category of “true crime.” ( Nur , paras 5, 82 ) The Effect on a Sentence of Systemic, anti-Black Racism [ 27 ] While the existence of systemic, anti-Black racism does not reduce the seriousness of a crime, nor translate to an automatic discounting of sentences for racialized offenders, it can certainly reduce the moral blameworthiness of an offender. ( Morris , paras 75 – 77 ) [ 28 ] In appropriate cases, a CSO can address the systemic over-incarceration of Black offenders. ( Morris , paras 123, 129 ) The Youthful Offender; The Restraint Principle [ 29 ] In ruling unconstitutional the mandatory minimum sentence for discharging a firearm with intent – which mandatory minimum was subsequently repealed by Parliament – the Supreme Court reiterated that “Youth is a mitigating factor on sentencing.” ( Hills , para 161 ) and “[S]pecific deterrence and rehabilitation should be the primary objectives when sentencing youthful first offenders.” ( Hills , para 161 ) [ 30 ] With such direction in mind, I conclude that the codified principle of restraint (ss.718.2(c), (d), (e)) applies particularly in the case of a youthful first offender.

Immigration Consequences [ 31 ] It is established law that collateral immigration consequences can properly be taken into account, as long as the sentence imposed obeys the fundamental principle of proportionality. ( R v Pham 2013 SCC 15 ) [ 32 ] In a case that bears some similarities to that of Mr.

Saeed, “severe immigration consequences” were specifically considered in imposing a CSO rather than a sentence of actual imprisonment. ( Moses , para 59 ) The Availability of a CSO [ 33 ] With the passage of Bill C-5 in 2022, Parliament restored a CSO as an available sentence for all but the most serious offences, such as terrorism or organized crime. In doing so, Parliamentary intent to reduce the incarceration rate in Canada and promote restorative justice was made clear. Principles Applied to Mr. Saeed [ 34 ] The aggravating factors in Mr.

Saeed’s case are: the danger posed to police and the community by his offence being committed in public and in a residential area; and his breaching conditions of two release orders. [ 35 ] The mitigating factors are: the guilty plea; his remorse; he is a youthful first offender (having no criminal record at the time); the support of family and friends; and his efforts at post-offence rehabilitation. [ 36 ] On the “true crime” analysis of his possession of a loaded handgun, there is no evidence of gang involvement or drug

trafficking, and the references in the Agreed Statement of Facts to “the nature of the [911] call” and the incident beginning with a domestic dispute do not lead me to conclude that his conduct amounted to true crime. [ 37 ] The closest comparator cases establish a range of sentence for Mr.

Saeed of a 2-year less one day CSO to 3 years ( Araya , Bui , Cameron , Grace , Lugela , Mohiadin , Morris , Moses ). [ 38 ] A CSO takes into account the severe collateral immigration consequences of imprisonment and is an appropriate tool to address the over-incarceration of Black offenders, both of which factors are present in Mr. Saeed’s case. Conclusion [ 39 ] For these reasons, I conclude that the appropriate sentence for Mr. Saeed is a 2-year less one day CSO, followed by 18 months’ probation. And the CSO is reduced to 256 days, in reflection of time spent in remand custody.

Heard on the 13 th day of October, 2023, the 16 th day of October, 2023, and the 15 th day of November, 2023. Dated at the City of Calgary, Alberta this 30 th day of November, 2023. A. J. Brown A Justice of the Alberta Court of Justice Appearances: G. Argento for the Crown J. Lutz, KC for the Accused

Appendix A NAME GP? AGE FACTS RECORD OTHER FACTORS SENTENCE Araya* No 18 In company of Lugela, who was the object of police surveillance. When the young men were stopped, Araya’s satchel contained a loaded, fully operational handgun, with serial number defaced. None Supportive family. Consistently employed after leaving school. Complied with bail conditions over 2½ years. Member of a racialized community. 2-year less one day CSO + 2 years’ probation

Bergh Yes 32 Having sex with his girlfriend, was playing with a loaded semi-automatic pistol that discharged and injured the girlfriend. She suffered serious internal injuries and spent 18 days in hospital. One dated conviction for impaired driving. Was a licensed gun owner and voluntarily surrendered all his guns after incident. Extremely remorseful. Ironworker supervisor, active and involved parent. 12-month CSO Buffalo Yes Under surveillance, seen to receive a large duffel bag and put it in a vehicle. Duffel bag contained 6 restricted handguns, five of them stolen, ammunition and various gun accessories.

Lengthy, from 1994 until 2007, when jailed for manslaughter. Released 2011, nothing until these offences in 2016. Many Gladue factors. Five years of redeemed life. Subject to lifetime 109 order at the time. Community support. Globally, 2-year less one day CSO. Bui No 24 During execution of a CDSA warrant, found in possession of a loaded handgun, as well as cocaine, baggies and other weapons. None Maternal grandfather only positive male role model. Maternal uncle shot and killed aunt. Completed high school. Part time employed doing yard maintenance. Had fallen in with a bad crowd. In breach of release conditions.

One year, 10 months consecutive for two firearms offences. Bzezi No Young Fled after being stopped by police. Dropped a loaded handgun as he fled. Lengthy, including convictions for robbery with a firearm, flight from police, breaches. Subject to 109 order and on release conditions at time. Difficult childhood, language barrier when immigrated, bullied. Sincerely remorseful, loving family, supportive girlfriend. 6 years Calinesco Yes 54 Postal employee took a loaded handgun and suicide note to work, intending to commit suicide there.

Police were called, took him into custody and seized handguns, rifles and ammunition from his home. None Honourable discharge after 8 years’ military service. Long history of heart disease and mental illness. Under a psychiatrist’s care. Conditional discharge and 12 months’ probation for ss. 86, 88; $800 fine for s. 91. Cameron Yes 22 Threats to kill while brandishing an imitation firearm. While on release from that incident, in possession of loaded semi-automatic handgun on C-Train, threatening passenger with it.

Long record, mainly youth, including four assaults with weapon, three assaults, two robberies, one threats, breaches, etc. Extremely unstable, chaotic childhood and family background. Father in and out of jail, mother struggled with addiction. Sexually abused. Abused drugs from age 13. 2 years + 2 years’ probation Devink Yes 38 Loaded pistol under a pillow on offender’s bed. Many other firearms improperly stored. None Rendered paraplegic after work accident. Firearms kept for protection. 12-month CSO Dhaliwal Yes 2-year less one day CSO

Fares No Search warrants executed in May and September. Both times, loaded handgun and cocaine seized. On release from first charges when second warrant executed. Schizophrenic but also subject to drug- induced psychosis. 3 years + 2 years’ probation on first offences; 1 year consecutive on second. Grace No 24/26 Loaded semi- automatic handgun in backpack off a hiking trail in the woods. None Not on the “true crime” end of the spectrum. Remorseful.

Took responsibility, apologized to the community. 2-year less one day CSO Lugela No 29 Walking with two others, ran from police, dropping bag containing loaded semi-automatic handgun with serial number removed. Subject to a 109 order and a release order with a no firearms condition. 18 breaches, 2 firearms offences Born in Sudan, to Canada in 2004. Supportive family. Has worked in oil patch and construction.

Some discussion of anti-Black systemic racism, not really tied to his offending. 3 years Marshall No 23 With two others was trafficking cocaine (at least 15 gm on the day of arrest) and in possession of loaded prohibited handgun. While on release for s. 95(1), arrested for 5(2), 60 gm of cocaine, and two breaches. None On the true crime end of the s.95 spectrum. 3½ years Mills No 63/65 Stopped for driving while prohibited, was in possession of drugs and a fully functional, loaded, restricted firearm. Long record of violence, firearms and drug offences. Mid-range of true crime.

Subject to lifetime 109 order. 6 years Mohiadin No 19 In a parked car with a loaded handgun in a satchel around his neck. Cooperative on arrest. None No evidence of gang affiliation. Had witnessed gun violence, lived in an area where gun violence was prevalent, older brother had died, a victim of gun violence. No evidence of direct threat. Expedited trial process after loss of the Charter challenge. Prospects for rehabilitation. 3 years

Morris No 23/26 Fled when confronted by police. Discarded jacket in stairwell and continued flight. In the jacket was a loaded handgun. None Was attacked, stabbed and suffered serious internal injuries almost two years before. Consequently, has suffered physical and mental health problems. Long affected by systemic anti-Black racism. “True crime” end of spectrum. But no evidence he was involved in criminal activity. 2 years less one day, stayed. Moses No 27 During execution of a CDSA warrant, a loaded handgun and ammunition were found, ultimately tied to offender. None Stable family life and work background.

Expedited trial process after initial applications. Severe immigration consequences if imprisoned. 2-year less one day CSO + one year’s probation Mumin No 20/23 At 2 am, as Whyte Ave bars emptying, received a loaded handgun, stuck in waistband, sauntered off. Police were notified, approached him. He took the handgun out, raised it above his head, lowered it, fled through the crowd and threw it away. None at the time. Good upbringing. Supportive family. Two years of university. Engaged to be married. 18 months Pierre Yes One loaded restricted handgun and one loaded sawed-off shotgun in his home.

Recognizing systemic racism does not mean an automatic discount on sentence. 3½ years Smickle No 27 Police entered apartment of Smickle’s cousin, surprised Smickle posing with a loaded handgun, taking a selfie. Immediately dropped gun and laptop. None Some grade 12 credits. No contact with father in Jamaica. Raised by mother. In a committed relationship. Father of two children, no contact with 13-year- old, excellent relationship with 4- year-old.

One-year CSO (reduced to 5 months for time served and bail) Ulmer Yes 61 Driving a vehicle in which there was a loaded sawed-off rifle and ammunition. 23 convictions from 1977 to 2016 but no weapons offences. Grade 8 education. Has had addiction issues in the past. Receives AISH: a past injury left him in a coma for a long time. Positive PSR. Has overcome addiction issues. Good community support. Hardworking and responsible. 18-month CSO (reduced to 15 for time served)