R. v. Mohamed, 2016 ONCJ 492

ONTARIO COURT OF JUSTICE CITATION: R. v. Mohamed , 2016 ONCJ 492 DATE: August 11, 2016 COURT FILE No.: Ottawa 15-A9309 BETWEEN: HER MAJESTY THE QUEEN — AND — Abdi Rashid MOHAMED Before Justice Robert Wadden Reasons for Sentence released on August 11, 2016 Chantal Lefebvre .................................................................................. counsel for the Crown Richard Addelman ....................................................................... counsel for Abdi Mohamed WADDEN J.: 1 .

Abdi Mohamed was convicted after trial of numerous firearms offences including discharging a firearm contrary to s. 244.2(3) of the Criminal Code , for firing a gun in the air several times in the middle of a residential street in Ottawa. He has brought an application under s. 12 of the Charter to challenge the mandatory minimum sentence under s. 244.2(3) . The issue before me whether the mandatory minimum sentence should be struck down and, whether it is or not, what is the appropriate sentence to impose on Mr. Mohamed. The Convictions 2 . Mr. Mohamed was convicted of (

i) discharge of a firearm while reckless to the life or safety of others, contrary to s. 244.2(3); (ii) possession of a loaded prohibited firearm, contrary to s. 95(2); (iii) careless use or storage of a firearm, contrary to s. 86(3); (iv) possession of a firearm while prohibited, contrary to s. 117.01; (

v) possession of a weapon for a purpose dangerous, contrary to s. 88(2); and (vi) possession of an unauthorized firearm, contrary to s. 92(3). During sentencing submissions it was agreed there was insufficient evidence for conviction of possession of a firearm obtained by crime, contrary to s. 96(2), and a finding of not guilty was entered on that count. Conditional stays pursuant to R. v. Kienapple are ordered on counts of possession of a firearm without a licence, contrary to s. 91(3) (Count 3) and one count of careless use or storage of a firearm contrary to s. 86(3) (Count 9). The Charter Application

3 . The most serious offence for which Mr. Mohamed was convicted is discharge of a firearm contrary to s. 244.2(3) of the Code . As Mr. Mohamed has a prior conviction for robbery with a firearm (under s. 344 of the Code ) he faces a mandatory minimum term of imprisonment for seven years, pursuant to s. 244.2(3)(a)(ii). Mr. Mohamed has brought an application for Charter relief to have that minimum penalty declared unconstitutional as it is overly broad and would result in a grossly disproportionate sentence. The Law on Mandatory Minimum Sentences 4 .

The leading authority dealing with this Charter application is found in the recent decision of the Supreme Court of Canada in R. v. Lloyd 2016 SCC 13 . In that case the Court made it clear that a provincial court judge cannot make a formal declaration of invalidity of sentencing legislation. The approach to be taken by a provincial court judge is different than that which might be taken by a court of inherent jurisdiction, such as the Superior Court.

The Supreme Court stated, at paragraphs 15-18, 15. … Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982 … However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. 16. … Provincial court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issue arises in a case they are hearing.

This power flower directly from their statutory power to decide the cases before them. … 18. … it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact in the case in issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. 5 . Following the direction of the Court in R v.

Lloyd , this court must start the Charter analysis by determining, firstly, “what constitutes a proportionate sentence for the offence”, and secondly, whether the mandatory minimum would require the imposition of “a sentence that is grossly disproportionate to the offence and its circumstances …” If I determine that imposing the mandatory minimum sentence would not be grossly disproportionate for Mr. Mohamed, judicial economy would suggest that, at this level of court, the enquiry should end at that point. If I find the sentence to be grossly disproportionate for Mr.

Mohamed that would equate to a finding that the law violates s. 12 of the Charter and the mandatory minimum would not apply to Mr. Mohamed. In other words, the analysis as conducted by a provincial court judge focuses very much on the appropriate sentence for the offender, rather than the general applicability of the law to hypothetical individuals. 6 . In considering the standard for gross disproportionality I am mindful of the statement of the Chief Justice, in paragraph 24 of R v Lloyd , that the Supreme Court “has established a high bar for finding that a sentence represents a cruel and unusual punishment.

To be ‘grossly disproportionate’ a sentence must be more than merely excessive. It must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society …” The Facts of This Case 7 . In this case, the evidence at trial proved that Mr. Mohamed discharged a loaded prohibited firearm on the morning of January 31, 2015 in the middle of a residential street in Ottawa, at approximately 6:50 a.m. The firearm was a 9 mm handgun and four spent cartridges were recovered on the street. It is clear from the evidence that Mr. Mohamed fired the gun in the air at least four times.

There were people on the street at the time he fired the shots, including a lady walking her dog and a man on the front lawn of a house. These people, as well as his own companions, were in the immediate vicinity as Mr. Mohamed fired the gun. In addition, there were people in the apartments of the low rise building immediately adjacent to where Mr. Mohamed fired the gun. Anyone on the street or in the building would have been at risk of being hit by a stray bullet from Mr. Mohamed’s shooting spree. 8 . Mr. Mohamed’s possession of the gun was not fleeting or momentary.

Evidence from the surveillance camera at the apartment building showed him to be in possession of it as he and his friends tried to get into the building. He could be seen openly holding the gun and pointing it around outside the doors of the building. After he and his friends could not get into the building they walked into the street, where Mr. Mohamded fired the four shots into the air. After the shooting he did not relinquish control of the gun. Either he or his friend brought it into the apartment of Mr. Mohamed’s girlfriend and hid it there. Mr.

Mohamed’s participation, at least as a party, in putting the gun in a place accessible to him suggests an intention on his part to keep possession of it. The gun was found by the police hidden in that apartment. Mr. Mohamed’s Prior Related Conviction 9 . This is not Mr. Mohamed’s first conviction for a firearms related offence. In 2010 he committed a robbery and home invasion with a prohibited firearm. The robbery was drug-related and Mr. Mohamed was in possession of a loaded .22 calibre handgun which he pointed at more than one individual.

The incident involved a planned and deliberate robbery of one individual in a car and then continued as a home invasion, during which Mr. Mohamed pointed the gun at a female occupant. Mr. Mohamed was arrested in the house, in the act, and was belligerent and threatening during the arrest. He plead guilty to robbery with a firearm, pursuant to s. 344 of the Code , and possession of a loaded prohibited firearm, pursuant to s. 95(1) of the Code . He received a mandatory minimum sentence of five years jail. Disposition of the Charter Application 10 .

In determining whether the seven year mandatory minimum sentence applicable to the offences before me is in violation of Mr. Mohamed’s Charter rights, I have to start by asking what would the appropriate range of sentence be for Mr. Mohamed’s current offence? If the mandatory minimum of seven years falls within or near that range, it cannot be found to meet the standard of “grossly disproportionate” as defined by the Supreme Court. 11 . The Supreme Court provided guidance on the appropriate range of sentence for firearms offences in the decision of R. v.

Nur 2015 SCC 15 , which struck down the mandatory minimum sentence for possession of a loaded prohibited firearm contrary to s. 95(1). In

that case the Court upheld a penitentiary sentence of 40 months for Mr. Nur, who was in possession of a loaded prohibited firearm in a high crime area. Mr. Nur was a 19 year old high-achieving first offender who did not expose or discharge the firearm of engage in any threatening conduct with it. 12 . If simple possession of a loaded prohibited firearm on the street merits a sentence in the range of three years, the use of a loaded prohibited firearm in the commission of a violent crime requires a proportionately higher sentence. It is clear that Mr.

Mohamed’s five year sentence for armed robbery with a loaded gun in 2010, which was the mandatory minimum, would have been well within the appropriate range even in the absence of a mandatory minimum requirement. 13 . The discharge of a firearm must also merit a proportionately higher sentence than three years for simple possession. Extrapolating from R v. Nur , it would appear a five year sentence for a first offender would be within the appropriate range for being found guilty of firing a prohibited handgun on a city street. Five years is the mandatory minimum for a first offender under s. 244.2. 14 . Mr.

Mohamed has now been convicted of a second serious firearms offence, in which his possession and discharge of the firearm were for no justifiable purpose. His sentence must reflect the fact that he is now a repeat offender. In all the circumstances his sentence must be higher than his previous sentence, at the very least to address the principles of denunciation and deterrence in s. 718 of the Code . 15 . As a repeat offender, previously convicted of a violent offence while using a firearm, Mr. Mohamed’s moral culpability would be high even for the simple possession of a prohibited firearm, let alone firing it.

In the circumstances before me, the appropriate range of sentence for Mr. Mohamed for the unlawful discharge of the firearm would have to begin at no less than six years, and in all of the circumstances could reasonably be up to eight or nine years. 16 . It could not, therefore, be said that a seven year sentence for Mr. Mohamed would be “cruel and unusual punishment,” that it would be “grossly disproportionate” and “so excessive as to outrage standards of decency” of our society. Given that the mandatory minimum sentence would not be disproportionate for Mr.

Mohamed, no purpose would be served in proceeding to the stage of examining hypothetical situations. For the purpose of this case I find that Mr. Mohamed has not met the threshold of establishing that the mandatory minimum sentence in s. 244.2(3)(a)(ii) violates his Charter rights. His Charter application is dismissed. Sentence: Aggravating and Mitigating Factors 17 . I am left to determine the appropriate sentence for Mr. Mohamed taking into account the principles of sentencing in s. 718 of the Code, the minimum sentence as set out in s. 244.2(3) and the aggravating and mitigating factors in this case. 18 .

The most aggravating factors are those to which I have already referred - the circumstances of the offence and the criminal record of Mr. Mohamed. Mr. Mohamed’s offence involved numerous discharges of the firearm into the air in the presence of innocent residents of the street. The possession of the firearm was for a period of time before and after the discharge, and was in violation of a lifetime firearms prohibition. His actions included reckless pointing of the firearm before the shooting. The careless storage involved hiding the firearm in the apartment of his girlfriend after the shooting. 19 . Mr.

Mohamed’s counsel submits that the circumstances are not at the most aggravating end of the spectrum. He notes that there is no evidence that Mr. Mohamed had possession of the gun for any longer than those few minutes that morning. The shots were fired into the air, not at a person, building or vehicle. No actual injury was caused. Certainly, if such aggravating factors were present the appropriate sentence would be much higher.

That does not change the fact that on the range of potential circumstances for this offence, the facts before me are serious, involving multiple shots fired in the presence of pedestrians on a residential street in the middle of Ottawa. 20 . Mr. Mohamed’s criminal record is serious.

He was convicted of two counts of failure to comply with a recognizance in January, 2010 and in November 2010 he received a five year sentence (of three years plus two years of pre-sentence custody) for convictions of Robbery with Firearm, possession of a Loaded Prohibited Firearm, Uttering Threats and Failure to comply with a recognizance. He was convicted in June 2014 of Obstruct Peace Officer and Failure to Comply, for which he received 45 days jail. 21 . Mr. Mohamed is 27 years old. His family immigrated to Canada from Somalia while he was an infant.

He was 19 years old when incarcerated for the previous robbery with a firearm offence. Since release, he has held some jobs but was unemployed at the time of these offences. Although I have limited evidence about his future prospects his relatively young age is a factor to be taken into account. The total sentence imposed on Mr. Mohamed should not be so severe as to crush any hope for rehabilitation. 22 . In considering the sentencing principles in s. 718 of the Code the most important in this case are denunciation of unlawful conduct and deterrence of Mr. Mohamed and others from committing similar offences.

Parliament and the courts have made it clear that any possession, use or discharge or a firearm must be dealt with severely. Mr. Mohamed had already received a penitentiary sentence for possession and use of a firearm. Neither that, nor the firearms prohibition order he was under, deterred him from possessing and discharging a firearm in this incident. The sentence imposed today must seek to deter Mr. Mohamed from similar future conduct. It must also serve as a deterrence to anyone who may be in a similar position. 23 .

The mandatory minimum sentence for discharging the firearm, contrary to s. 244.2(3), is seven years imprisonment. Even in the absence of a mandatory minimum, this would have been the starting point for sentence, given Mr. Mohamed’s criminal record and the circumstances of this offence. The conviction, contrary to s. 117.01, for possession of a firearm while under a lifetime prohibition is significant and warrants addition jail time, as does the fact that this was a prohibited weapon contrary to s. 95(2). The seriousness of the careless storage, for which he was at least a party, is that it indicates that Mr.

Mohamed intended to keep ongoing possession of the gun.

Sentence 24 . In my view the appropriate sentence is eight years incarceration. In all the circumstances a higher sentence could be justified, but a sentence of this length takes into account the age of Mr. Mohamed and the hope that he can be rehabilitated. 25 . Mr. Mohamed has been in custody since his arrest on January 31, 2015, for a total of 557 days. There is no dispute that he should be given credit for his pre-sentence custody on a 1.5:1 basis, in accordance with s. 719(3.1) and the decision of the Supreme Court in R. v. Summers 2014 SCC 26 .

Accordingly, he will be given credit for 835 days, or approximately 2 years, 4 months. The remainder to serve as of today will be 5 years, 8 months. 26 . The sentence will be divided as follows: (

a) Discharge of Firearm, s. 244.2(3) 4 years, 8 months plus PSC of 2 years, 4 months (

b) Possession of Prohibited Firearm, s. 95(2) 1 year consecutive (

c) Possession while Prohibited, s. 117.01 1 year concurrent (

d) careless use or storage of a firearm, s. 86(3) 1 year concurrent (

e) weapon for a purpose dangerous, s. 88(2) 1 year concurrent; and (

f) possession of an unauthorized firearm, s. 92(3) 1 year concurrent 27 . Mr. Mohamed will be prohibited for the possession of any firearm, ammunition or explosive substances for life, and a sample of his DNA will be ordered to be taken for the National DNA Databank. Date: August 11, 2016 “Justice Robert Wadden”