R. v. Farooqi, 2020 ONCJ 311

CITATION: R. v. Farooqi , 2020 ONCJ 311 DATE: June 19, 2020 Information No. 20-405 20-449 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MOHD FAROOQI R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on June 19, 2020 at ORANGEVILLE, Ontario APPEARANCES : C. Presswood Counsel for the Crown J. Lopez Counsel for Mohd Farooqi PUGSLEY, J. (Orally): I agree in these very, very unique circumstances that this should be a sentence of time served plus one day. I completely agree with the range of sentence suggested by the Crown. In fact, I agree with Mr. Lopez that that position is fair and generous on these facts.

But I have to consider in this matter the fact that in a situation where you could have expected the authorities to protect you from the covid virus, you were not protected from that virus. And I am sure that Mr. Lopez is right in that Maplehurst has done what they can to stop the spread of the virus in the close quarters of a provincial institution, but in this case they failed, and they failed spectacularly in your case. You came into custody without the virus and a month later you had the virus.

Now, I suppose the only good thing about it is you are now immune to the virus by my understanding of the last best science on the covid-19 virus. You cannot get it again. That is cold comfort when you are in your cell with covid-19 symptoms, having been tested positive but you are still in jail. You had no control over your freedom. This is a case that the Crown, after dead time, was looking at a potential sentence of perhaps 90 days - a little less than that - on the low end of their range.

The question for me is, given your situation and the fact that you are still in custody, is it worthwhile to require you to be in jail for another 84 days to make the point of deterrence to you and to others? My conclusion on these very unique facts is that it is not appropriate to continue to have you stay in custody. My view is that the reasoning of Justice Pomerance in the Superior Court case of R. v. Robert Hearns , [2020] ONSC 2365, is bang on point here.

And I note as well that the charges that Justice Pomerance was dealing with, although the dead time was quite long, were also very, very serious charges, much more serious than yours. It is not a situation where judges work to a formula on sentencing. We have not reduced the process to that. There is still an art to sentencing. Even though I have been doing this for 18 and a half years, I am not sure I have that art but I sure believe Justice Pomerance does. Her case is not binding upon me but it is quite persuasive.

I am also aware that there are cases on the issue of the effect of covid-19 to persons in custody, particularly many bail reviews. These decisions are completely mixed both ways. In this case, it is a unique situation because you did get the virus and you did get the virus while you were in Her Majesty's custody.

That to me allows me to take note of the lengthy time you spend in custody and determine that that is sufficient, but I am also agreeable with the suggestion of the lawyers that a period of probation is required here, and I was already concerned with the 18 months being long enough because of the depth of your drug problem. So here is what I am going to do. This is, Madam Clerk, on the first count and concurrent on all others. The sentence of custody is as follows: Time served.

Time served, which I understand is agreed between the parties is 64 days, which I credit in accordance with the Criminal Code and the Supreme Court of Canada in R. v. Summers on a one to one and a half day basis as the equivalent of 96 days. So time served 96 days equivalent plus one day being deemed served today. Unless you are required to be in custody on other charges, they should be releasing you today as soon as they get the paperwork. In addition, on the first count that you pled to, and concurrent on everything else, you will be placed on probation for 24 months.

The terms of that probation are that you keep the peace and be of good behaviour; report to a probation officer within the next 14 days; return to court if required to do so; that you not associate with Manpreet Singh or Gurpeet Hehar, except through legal counsel. Most importantly, that you take such assessment, treatment and counselling for your drug addiction as may be directed by your probation officer, and cooperate in information going back to your probation officer so they know how you are doing with that counselling assessment or treatment. I pause for a second, Mr.

Lopez, your client was consenting to the treatment?

MR. LOPEZ: Yes, Your Honour. THE COURT: I thought so. And you not possess any weapons as defined by the Criminal Code . Any other terms, counsel, that are suggested on the probation order? MR. LOPEZ: No, Your Honour, not from my side, no. MR. PRESSWOOD: Not for me, Your Honour. Thanks. THE COURT: Do you understand those terms of probation, Mr. Farooqi? MOHD FAROOQI: Yes, sir. THE COURT: Do you understand those terms of probation? MOHD FAROOQI: Yes, sir. THE COURT: It is a serious matter to breach a court order.

Given your record, I would suggest that if you are found guilty of breaching this probation order you will go to jail. Do you understand that warning? MOHD FAROOQI: Yes, Your Honour. THE COURT: If this order needs to be reviewed or changed, you can ask the court to consider doing that. For example, and this is only an example, often people do have a sudden realization that their path in life is not proceeding well and they change their path in life. If that happens, your probation officer might encourage you to ask to have the order ended before the two years is finished. I really hope that happens.

MOHD FAROOQI: I do, Your Honour. THE COURT: Thank you. In a few minutes I will be sending a copy of the probation order to your lawyer and to the institution. Please make sure you understand the rights and duties that you have under that order. Mr. Lopez will sort out any questions for you or your probation officer when you report. Because you are not available to sign today, you are deemed to have signed this order. It is the order that I have now pronounced in court in your presence.

On the two driving related offences, you are prohibited from operating a motor vehicle anywhere in Canada for one year under the Criminal Code on each of those, but that is concurrent, so a total of one year. I take it there are no ancillary orders sought here, Mr. Presswood, except for.... MR. PRESSWOOD: No, Your Honour, not in this case. THE COURT: Except for the forfeiture order. MR. PRESSWOOD: Right. THE COURT: All right. So I will sign the forfeiture order. It has been presented by the Crown, Madam Clerk, and I will sign that with the paperwork. The other charges and the other two Informations, Mr.

Presswood? MR. PRESSWOOD: Those could all be marked withdrawn, please, Your Honour. THE COURT: All right. All those other charges will be marked withdrawn at the request of the Crown. I guess, given the timing of these, Mr. Lopez, I have to consider the victim fine surcharge. MR. LOPEZ: Yes, Your Honour. I think you're required to do that. I, I would ask for - sorry, if I could make an oral application to have them waived in the circumstances. I don't think he's going to be employed for a while, given that we're still required to stay home.

Some people are working but his job was driving and in the trucking industry, so I'm not sure if he'll be able to do that... THE COURT: Well, he sure won't be doing that for the next year. MR. LOPEZ: ...driving. Yeah, he won't be driving but - anything to do with the trucking industry, so.... THE COURT: All right, so the defendant's real job right now is to kick this habit before it kills him and leaves his children orphaned. So the victim fine surcharge is waived on each of these counts. Anything else I have not considered, counsel? No? MR. LOPEZ: No, Your Honour. MR.

PRESSWOOD: I think you've covered everything, Your Honour. THE COURT: All right, so we will send a copy of the paperwork to you, Mr. Lopez, as well as to the institution. They will need that, of course, for the purpose of release today. Unless the defendant is required to be in custody for some other reason, he should be released today.

MR. LOPEZ: Thank you... THE COURT: All right. MR. LOPEZ: ...for everyone's compassion. Thank you. THE COURT: All right. Good luck to everybody. Thanks for your help. *********