R. v. Mengistab, 2020 ONCJ 138

ONTARIO COURT OF JUSTICE CITATION: R. v.

Mengistab , 2020 ONCJ 138 DATE: 2020 03 10 COURT FILE No.: Toronto 19-7500140000 BETWEEN: HER MAJESTY THE QUEEN — AND — HANNAH MENGISTAB Before Justice Bhabha Heard on February 3 rd 2020 Reasons for Sentence released on Tuesday, March 10 th 2020 Spence, D............................................................................................. counsel for the Crown Page, A. ............................................................................................. counsel for the accused Bhabha, J.: [ 1 ] Hannah Mengistab pleaded guilty to one count of Possessing a Restricted Firearm without a licence contrary to s. 92(1) of the Criminal Code on February 3 rd 2020.

Circumstances of the Offence [ 2 ] On Saturday March 23 rd 2019, Ms. Mengistab’s mother was cleaning her room. She found a knapsack in the closet area which did not belong to her daughter. When she opened the bag, she found the firearm in question. She notified her daughter before notifying the police about her discovery. Police attended and confirmed that the item was in fact a firearm. Upon further investigation the police found that the firearm was loaded, and the serial number was defaced. [ 3 ] The firearm in question is a Kel-Tec brand Sub200 9mm Folding – Pistol Calibre Carbine – Rifle.

The semi-automatic assault rifle was loaded with five (5) rounds of 9mm ammunition. See Appendix A - exhibit 1, tab 2 which are photos depicting the firearm. [ 4 ] Ms. Mengistab was arrested, and after she was given rights to counsel she gave a statement to the police. She explained that approximately one month prior to her mom’s discovery of the gun, while she was out walking her dog, a former neighbour and family friend, Jacob Thompson, asked her to hold onto the knapsack for him. She agreed to do so.

She did not ask any questions about why he needed her to hold on to the knapsack, how long she needed to hold on to it, or what was in it. [ 5 ] Ms. Mengistab had the bag in her possession for approximately two (2) weeks before she looked inside. She did nothing about

her discovery. She did not call Jacob concerned about what she saw, nor did she call to ask him to come to get the knapsack. She simply put it back in the closet. [ 6 ] Ms. Mengistab provided the police with Jacob’s full name, date of birth and address. Jacob is twenty years old, a year younger than Ms. Mengistab. [ 7 ] Ms. Mengistab was confident that Jacob would take responsibility for the gun. [ 8 ] On March 27 th , police made inquiries of Jacob Thompson. Not surprisingly, Mr. Thompson said he had no knowledge of the gun. A short time later, his lawyer called police to advise that Mr.

Thompson was disinclined to speak to the police. Circumstances of the Offender [ 9 ] Ms. Mengistab is twenty one years old. She has no prior record [ 10 ] Her parents are divorced. She lives with her mother who continues to be supportive of her. Her mother indicates that she was raised in a loving home, supported by an extended family. Her mother writes that this offence is very out of character for her daughter and is not a reflection of how she was raised. [ 11 ] Ms. Mengistab has completed high school and one year at York University. She has had her sights set on a career in nursing and working with children.

She is also enrolled in an aesthetics course that begins in September 2020. [ 12 ] She enjoys the support of friends and family who have written letters of support and character references; many of whom urged the court to consider a disposition that would not involve a criminal record. [ 13 ] Ms. Mengistab is described as outgoing and compassionate. She was involved with her church for most of her young life where she has a good relationship with the pastor. She participated in Sunday school as a child and more recently as a volunteer preparing and serving food for the Hospitality Ministry. [ 14 ] Ms.

Mengistab was released on bail under strict house arrest conditions that were varied approximately six (6) months after her arrest to allow her to work. She was also allowed to walk her dog with her surety’s permission. Position of the Parties [ 15 ] The Crown submits a period of incarceration for a period of 18-24 months followed by a period of probation of three years is the appropriate sentence.

In addition to a probation order the Crown also seeks the following ancillary orders: a DNA order, a s. 109 Prohibition order for life, as well as a Forfeiture order. [ 16 ] The defence position is that the Court should grant Ms. Mengistab a conditional discharge in order to spare her a criminal record. This would allow her to pursue a career in nursing and to travel to the United States where she has family. In the alternative, if the court deems a period of imprisonment is necessary, Ms.

Paige submits that a conditional sentence that would allow Mengistab to serve her sentence in the community which is more appropriate for a youthful, first time offender than actual incarceration. Mitigating Circumstances [ 17 ] Ms. Mengistab pleaded guilty. No trial dates were ever set. [ 18 ] She was not the “true owner” of the gun. [ 19 ] Ms. Mengistab has no prior record. [ 20 ] She is twenty one year’s old; a youthful offender. [ 21 ] She was cooperative with the police. [ 22 ] She has strong support in the community and therefore good prospects for rehabilitation.

Aggravating Circumstances [ 23 ] What may have begun as naiveté or wilful blindness on Ms. Mengistab’s part evolved into a situation where she had actual first hand knowledge of the contents of the bag. Once she became aware of the contents of the knapsack she knowingly held on to it, choosing to do nothing about it. [ 24 ] The “true owner” was not a boyfriend or a person who had an emotional or other hold over her. He was a year younger than her.

It would appear that she could easily have taken steps in an effort to remove the gun from her possession after she knew it was in her home. [ 25 ] The Crown in this case concedes the absence of other aggravating factors one finds present in many of the s. 95 cases decided after the Ontario Court of Appeal decisions in Nur and Smickle . Those factors absent in this case are as follows: • Although the gun was loaded, there is no evidence that Ms. Mengistab knew that it was loaded or that the serial number was

effaced. On the facts she merely looked in the knapsack, she did not handle the gun; • Ms. Mengistab never possessed the gun in a public place. The true owner brought it to her home where it remained until the policewere made aware of it by her mother; and • There is no actual evidence that the gun was possessed in connection with the drug trade The Purpose and Principles of Sentencing [26]

Section 718 of the Criminal Code reads as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [27] 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. See

Section 718.1 of the Code. s. 92(1) Possession of a Firearm Knowing its Possession is Unauthorized [28] Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm, or a non-restricted firearm knowing that the person is not the holder (

a) a licence under which the person may possess it; and (

b) in the case of a prohibited firearm or a restricted firearm, a registration certificate [29] Both counsel referred to firearm cases in order to provide support for their respective positions. I have reviewed and consideredthose cases, many of which were helpful on the primary sentencing principles: general deterrence and denunciation. Among the cases Iconsidered are: R. v. Nur, 2013 ONCA 677 , [2013] O.J. No. 5120 (C.A.), aff'd 2015 SCC 15 , [2015] 1 S.C.R. 773; R.v. Smickle, 2013 ONCA 678 , [2013] O.J. No. 5070 (C.A.), aff'd; R. v. Canepa, 2011 ONSC 1406 , [2011] O.J. No.924 (S.C.J); R. v.

Shunmuganathan, [2016] O.J. 4513 [30] In R. v. Nur 2013 ONCA 677 , [2013] O.J. No. 5120, Justice Doherty, after reviewing the statutory provisions whichgovern firearms, articulated the factors which reflect Parliament's view regarding the gravity of s. 95 and related offences:

Section 95 carries a more serious penalty than do any other possession simpliciter offences. The penalty reflects two aggravating factorsfound in the provision.

Section 95 applies to prohibited and restricted firearms, and not to other firearms, and it applies only if the firearmis loaded or if ammunition for the firearm is readily available. (emphasis added)

Section 95 casts a "wide net": MacDonald, at para. 47. Unlike some firearm offences that carry a substantial minimum penalty (e.g.manslaughter, at s. 236(a), and criminal negligence causing death, at s. 220(a)), s. 95 does not require proof of any harm, or even any riskof harm, to any other person as a result of the possession of the firearm.

Nor, unlike other sections carrying a mandatory minimum (e.g.discharging a firearm at a person with intent to wound, at s. 244(2)), does s. 95 require proof of an intention to cause any harm,recklessness as to the potential for harm flowing from the possession, or even criminally negligent behaviour relating to the firearm. It isirrelevant to a charge under s. 95 that the accused took all necessary precautions to ensure the safety of others.

Section 95 differs from other firearm possession offences that carry a minimum penalty in another respect. Unlike, for example, theoffences created by ss. 85, 96, 100, and 279, there is no requirement in s. 95 that the Crown prove that the possession of the firearm wasconnected to some other unlawful activity or intended unlawful activity. Possession is criminal under s. 95 even if it is entirely untaintedby any other unlawful activity. (emphasis added)

Section 95 seeks to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase thedanger posed to the public by the possession of those firearms. By criminalizing possession simpliciter, the criminal law can intercede

before someone is actually harmed and before criminal activity, so often associated with the possession of these kinds of firearms, actually occurs or is attempted. ...s. 95 is part of a package of legislation presented by various governments over the last 20 years in response to the very real and increasing societal danger posed by the proliferation of illegal firearms and the escalation of gun-related violence and other criminal activity.

Parliament's response to this pressing societal concern has included an expansion of the reach of the criminal law and the creation of sentencing ranges for firearm-related offences that place a premium on deterrence and denunciation. (see para 198) (emphasis added) [ 31 ] Given the comments of Doherty, J. above, it would be difficult not to conclude the circumstances of the offence to which Ms. Mengistab has pleaded guilty (s. 92) is an offence closer to the "true crime" end of the spectrum.

Findings [ 32 ] I find that specific deterrence is not likely a factor that would be at play in this sentencing and that the guilty plea is a significant mitigating factor on sentence demonstrating the defendant’s remorse. [ 33 ] Although the guilty plea in this matter comes almost one year after the incident, it was always Ms. Mengistab’s intention to plead guilty. [ 34 ] In my view, another significant aspect of this case is the defendant's youth and the good prospects for her rehabilitation. Ms. Mengistab’s involvement with the criminal justice system has had an impact on her.

Her strong family support and her motivation to achieve goals for the future put her at very low risk of being in conflict with the law in the future. [ 35 ] I have considered defence submission that a discharge in these circumstances could be a fit and appropriate sentence. I disagree. [ 36 ] Clearly a conditional discharge would be in Ms. Mengistab’s best interests as she would avoid the stigma of a criminal record. However, a conditional discharge is wholly inappropriate because it would be contrary to the public interest.

It would encourage the same behaviour and put public safety at risk. [ 37 ] This city has experienced a series of occurrences involving firearms over the last number of years with increasing frequency. Barely a week goes by without a report of gun violence some where in the city. Many of these occurrences have resulted in the deaths of entirely innocent people. These tragedies have only served to heighten the public's concerns. The scourge of gun violence must end.

A conditional discharge would undermine that goal and would be contrary to the public interest. [ 38 ] The defendant's conduct, in addition to an offence in itself, had the very unenviable consequence of enabling other criminal conduct.

Young women like the defendant, are used by those who own or possess firearms to hold those firearms for them because they would be much less likely to attract police attention than the "true owner". [ 39 ] The message cannot be sent that the best way to possess a firearm without significant consequences is to leave it with a sister, a girlfriend or willing friend who will not face any significant consequences.

A conditional discharge, I have no doubt, would send that message and only serve to encourage a repetition of the same scenario with other young persons. [ 40 ] I will next turn to whether a traditional jail sentence is mandated in the circumstances or whether a conditional sentence could achieve the same sentencing objectives. [ 41 ] I have considered the Crown’s position is that a conditional sentence would be inconsistent with the purpose and principles of sentencing set out in s. 718 to 718.2, in that it would not meet the predominant objectives of denunciation and deterrence and would not meet the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This submission has merit. The sentences imposed in Nur and Smickle are but two examples of that. [ 42 ] I am obliged to consider that a conditional sentence is an available sentence. It is not barred by law. [ 43 ] Ms. Mengistab is a first time offender. Serving her sentence in the community would Allowing Ms. Mengistab to serve her sentence in the community will not endanger the safety of the community. As well, Ms. Mengistab’s mother will most likely be supervising that sentence in the community.

She has proven herself to be a mature, responsible and law-abiding citizen. [ 44 ] In addition, it must be emphasized that Ms. Mengistab was arrested not because she was the subject of any ongoing police investigation, but because her mother phoned the police when she found the gun.

While her criminal conduct is not diminished because her mother did the right thing, her guilty plea hopefully is an indication of the maturity and insight she has gained as a result of this experience. [ 45 ] The circumstances of this case, while remarkably similar to those in Shunmuganathan , differ from that case in that there is no evidence that the defendant knew the gun was loaded or that the serial number was effaced. While the gun Ms. Shunmuganathan agreed to hold for her boyfriend was not loaded, she also agreed to hold onto ammunition which was readily available and which she provided to the police.

For that reason, she pleaded guilty under s. 95 of the Code , not s. 92. [ 46 ] As with Ms. Shunmuganathan, there is no dispute that the defendant was not the "true owner" of the gun. She was holding it for a male friend and had come into possession of it within approximately one month before her arrest. [ 47 ] Although Ms. Mengistab was cooperative with police in providing information about the true owner, the information did not

result in any charges being laid against that individual. If indeed he was the true owner, he had the savvy to disavow any knowledgeabout the gun to avoid any criminal consequences. [48] The question then remains: can the principles of denunciation and deterrence in an assault rifle possession case be achieved by aconditional sentence? Although decided before Nur and Smickle, supra, Nordheimer, J. imposed a conditional sentence in a case where ayoung man entered a guilty plea to a charge under s. 92, although the facts would have supported a finding under s. 95 (R. v. Canepa,supra).

The police located a loaded firearm in the defendant's possession in the context of the presence of narcotics. His Honour'scomments at paragraphs 13 and 15 are instructive: The real issue is whether the imposition of a conditional sentence accords with the fundamental principles and objectives of sentencing.Two of those objectives are denunciation and deterrence. In that regard this offence involves a firearm and I am well aware of thecontinuing concern in this community regarding the possession of weapons, particularly the possession of weapons by young people.

I accept that denunciation and deterrence are important sentencing objectives in this case. The question is whether it is necessary toimpose a term of imprisonment as the only route to achieving those objectives. I am aware that some may hold the view thatimprisonment is the only effective way of expressing denunciation and achieving deterrence. That view, however, ignores theobservations made by Chief Justice Lamare (sic) in the seminal case on conditional sentences namely R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 in which the Supreme Court of Canada held that conditional sentences can achieve both of those objectives. In paragraph 127 of Proulx, point 10, Justice Lamer summarizes as follows:

(127) Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be moreappropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration willgenerally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved.

However, aconditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesserimportance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offenderand the community in which the conditional sentence is to be served. [49] Given the circumstances of the offence and the scourge and prevalence of gun violence in our community, any sentence thecourt imposes must be sufficiently punitive to achieve denunciation and general deterrence.

Although a period of incarceration in atraditional jail setting is within the appropriate range of sentence available in these circumstances, in my view, it could have the effect ofdestroying this young woman’s future. She is twenty one years old and the court cannot lose sight of her rehabilitative prospects. [50] Taking into account the many mitigating factors as well as the aggravating factors, I conclude that on the facts of this casewhich are not dissimilar to the fact scenario of R. v.

Shunmuganathan, infra, the maximum conditional sentence with strict conditionscan meet the predominant principles of sentencing while at the same time addressing rehabilitation. [51] The maximum sentence available to serve in the community is necessary because the conduct she has pleaded guilty to is whatpermits true crime to flourish and pose a danger to the safety of the public. Ms. Mengistab may have been immature and naïve, andwillfully blind in accepting the knapsack. However, once she had knowledge of its contents she choose to do nothing, thereby becominga knowing enabler.

Her sentence must reflect that reality. [52] Other like-minded young people must be made aware that there will be severe consequences to agreeing to store firearms foranyone for any period of time: a criminal a record and a significant curtailment of one’s liberty. [53] Having regard to all of the circumstances, including the aggravating and mitigating circumstances, I find that the fit andappropriate sentence is two years less one day of house of house arrest (with limited exceptions) and it will include 150 hours ofcommunity service. [54] The conditions are as follows: The Mandatory Terms: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court. • Report in person within two (2) working days to a supervisor and thereafter when required by the supervisor and in the mannerdirected by the supervisor. • Remain in the Province of Ontario unless written permission to go outside the Province is obtained from the Court or thesupervisor. • Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change inemployment or occupation.

Specific Conditions • During the entire term of the Conditional Sentence Order, you will remain confined to your home address, except: - to attend school or to attend employment; - to attend medical appointments, or medical emergencies involving yourself or your mother; - to attend to the necessities of life for one three hour period, once per week; or

- to complete community service as required by the court - for any other reason deemed appropriate by your Supervisor All exceptions above include travel immediately to and from. All exceptions must be identified in a written letter of permission approved by your Supervisor (except emergencies). • You will perform 150 hours of community service at a rate and

schedule approved by your Supervisor. • You will have no contact or communication, directly or indirectly, with Jacob Thompson • You will not possess weapons as defined by the Criminal Code . [ 55 ] The conditional sentence will be followed by a period of probation of two (2) years on the following conditions: The Mandatory Terms : • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court; • Report to your probation officer as and when required; • Notify probation in advance of any change of name or address and promptly notify the officer of any change in employment or occupation.

Specific Conditions: • You will have no contact or communication, directly or indirectly, with Jacob Thompson • You will not possess weapons as defined by the Criminal Code . [ 56 ] It is in the best interests of the administration of justice that a sample of Ms. Mengistab’s DNA be collected and stored in the DNA databank and therefore I make the order that she provide such a sample. [ 57 ] A s. 109 prohibition will be ordered for life. [ 58 ] There will also be a forfeiture order under s. Released: March 10 th 2020 Signed: Justice Bhabha