R. v. Cheema, 2023 ONCJ 195

ONTARIO COURT OF JUSTICE CITATION: R. v. Cheema , 2023 ONCJ 195 DATE: 2023 05 07 COURT FILE No.: Brampton 3111 998 19 30739 BETWEEN: HIS MAJESTY THE KING — AND — RAMEZ CHEEMA Before Justice G.P. Renwick Sentencing Submissions Heard on 04 May 2023 Reasons for Sentence Released on 07 May 2023 C. Coughlin and D. Ida............................................................ counsel for the prosecution A. Abbey............................................................ counsel for the Offender Ramez Cheema REASONS FOR SENTENCE RENWICK J.: INTRODUCTION [ 1 ] This matter began before me on 08 September 2021.

On that day, the Defendant began a s. 8 Charter (“ Garofoli ” [1] ) Application to quash the search warrant that led to the discovery of two sawed-off shotguns, with readily accessible ammunition, found in his bedroom within his parents’ home.

That Application was heard on 08 September and 10 December 2021, [2] and in reasons issued on 12 December 2021, I dismissed the Garofoli Application and upheld the issuance of the search warrant and the admissibility of both recovered prohibited firearms. [ 2 ] Following an uncontested defence request on 14 March 2022 to vacate the second trial date and prior to the third date which had been set for trial, I heard an Application for s. 24(1) Charter relief on the basis of alleged violations of ss. 7, 9, and 11(

e) of the Charter in relation to the Defendant’s delayed bail hearing. When that Application was dismissed, the Defendant immediately changed his plea to guilty. [ 3 ] Trials were set and vacated on 10 December 2021, 28 April 2022, and 20 January 2023. Following arraignment, four days of court time were spent to complete this matter.

PRE-SENTENCE CUSTODY AND SENTENCING POSITIONS [ 4 ] The Offender was arrested on 17 October 2021 and spent eight days in pre-trial custody before his eventual release on bail on 24 October 2021. [ 5 ] For eight months following his release, the Offender was subject to a very restrictive house arrest. Eventually, that was relaxed to include a curfew in June 2020. I have been advised that the Offender was charged in January 2023 for an alleged failure to comply with his curfew to get some food with friends. As the Offender is still before the court for that matter, I have given this allegation no

consideration in this decision. [ 6 ] I am prepared to give the Offender the equivalent of 16 days of pre-trial custody credit plus 5.5 months of credit for his restrictive bail orders for a total pre-trial custody credit of six months. [ 7 ] The prosecutor proceeded by indictment. The maximum sentence for this offence is 10 years imprisonment. [ 8 ] The prosecutor suggested that in light of the guilty plea and taking into account all of the mitigating features at play that a sentence of 24 months imprisonment in a penitentiary is appropriate for the offence committed by this Offender.

Alternatively, a sentence of two years less one day served in a provincial reformatory would also suffice to achieve denunciation and general deterrence herein. [ 9 ] The Offender seeks a conditional sentence of imprisonment and probation. It is submitted that this offence is somewhere in the middle between a purely regulatory offence on one end of the spectrum and a “true crime” at the other. As well it is said that given the Offender’s youth, his employment status, the support of his family, his remorse, his rehabilitation, and the lack of a need for specific deterrence, such a sentence is just.

DISCUSSION Mitigating Factors [ 10 ] The following factors are accepted by the parties as mitigating: i. The Offender pleaded guilty as a first offender; ii. The Offender was 20 years old when he committed the offence; iii. The Offender has matured, he is now 24 years old; iv. The Offender has completed a millwright course; v. The Offender has been gainfully employed since mid-April 2023; vi. The Offender has the support of his family; and vii. The Offender wants to lead a pro-social life. Aggravating Factors [ 11 ] The following uncontested factors are aggravating: i.

These two shotguns were stored unsafely in the Offender’s bedroom in his family home with accessible ammunition. The Offender has three younger siblings who were 9, 14, and 15 years old at the time of this offence. Any of the other six members of the Offender’s family could have discovered these firearms. The Offender’s family members were unknowingly exposed to incalculable risk; ii. The Offender is not licensed to possess any firearms; iii. These firearms can never be possessed legally because they are sawed-off, making them prohibited. Sawed-off shotguns are easier to carry and conceal.

The Boito Reuna AE .410-gauge shotgun was sawed-off at the stock AND the barrel, possibly to permit single-handed functionality. Regardless, because of its diminutive length, it is more easily concealed. The fact that both shotguns were unlawfully shortened increases their dangerousness and the unlikelihood that they were possessed for benign purposes like trap or target- shooting or hunting; iv. The firearms were accompanied by 24 rounds of ammunition usable in the 20 gauge Khan Arms shotgun and 29 rounds usable for the .410 gauge shotgun; v.

Gun crimes are increasing in this region (see Ex. 3, Affidavit of Lisa Smith); vi. The firearms were not properly or safely stored as required by s. 7 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations ; SOR/98-209 , made under the Firearms Act , (S.C. 1995, c. 39) ; and vii. The Offender’s possession of these dangerous shotguns was not momentary or inadvertent. He told the pre-sentence author that he possessed the shotguns because they are “cool.” He made a deliberate decision to possess these shotguns AND the ammunition to go with them.

A search warrant was sought on the basis of information from a confidential informant provided some period of time within 90-days prior to the granting of the search warrant. Even if the CI information was only learned the day before the warrant was issued, that means that the Offender possessed these deadly weapons for at least two days. Neutral Factors [ 12 ] The following are neither aggravating nor mitigating and have not factored into the calculus of an appropriate sentence in this case: i. The Offender set three separate trial dates before resolving the matter; ii.

There is no suggestion that the Offender had used or fired the firearms; and

iii. There were no injuries suffered by the Offender or the police who conducted the investigation. Circumstances of the Offender [ 13 ] The Offender is a young man. Until now, he has led a pro-social life. He is a racialized Canadian who was born in Pakistan. He has undoubtedly experienced dislocation and racism at a young age because of his family’s move to Canada. [ 14 ] Fortunately, the Offender grew up in a stable home with both parents, free of substance, sexual, or physical abuse. He is from a good family. This offence is out of character for the Offender. The pre-sentence report was positive.

The Offender is intelligent and instantly likeable. [ 15 ] The Offender has post-secondary education. He has a college certificate. He has recently become gainfully employed. It is evident that the Offender is capable of rehabilitation and full participation in our community. This is to his credit and benefit.

Circumstances of the Offence [ 16 ] The Offender possessed not one but two deadly firearms with ammunition. [ 17 ] Even though the firearms were not used in the commission of any other offence, this is still a “true-crime” offence, not simply a regulatory offence resulting from an expired license or the possession of weapons in an unauthorized place. There can be no doubt, given the altered state of the shotguns, that they are meant to be used to intimidate and kill people.

The combined possession of shotguns and ammunition reinforces this view. [ 18 ] I entirely reject the submission that the Offender possessed the weapons because of a legitimate interest in firearms. Shotguns are not difficult to possess legally in Canada. One need only obtain a license to possess non-restricted firearms. In Brampton, shotguns can readily be purchased, lawfully, without the need to register them. There is nothing “cool” about the unlawful possession of two killing tools carelessly kept in one’s bedroom. Sentencing Principles [ 19 ] The fundamental purpose of sentencing as expressed in

section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 20 ] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [3] [ 21 ] In R. v .

Hamilton and Mason , Doherty J.A. of the Ontario Court of Appeal stated that: The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence… The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [4] [ 22 ] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v .

Priest : The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [5] [ 23 ]

Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [6] [ 24 ] In the circumstances of this case, both parties submit that a jail sentence is warranted. Their dispute is one of duration and forum. Obviously, as a sentencing tool, institutional imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender. [ 25 ] Our Supreme Court has instructed that

section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation.

The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [7] Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider, especially in light of the Offender’s efforts and success to rehabilitate himself while on bail.

Sentencing Range [ 26 ] The parties rely on limited jurisprudence to justify the sentence proposed. This is not unreasonable.

I find that although the sentence sought is at the low end of the appropriate range, because there are two shotguns, because they are modified, because they were possessed with a substantial amount of readily accessible ammunition, and because the firearms were stored where six other occupants could have found them, imprisonment of two-years less one day is within the bounds of an appropriate sentence for a first offender who has pleaded guilty in these circumstances. [ 27 ] To be clear, although there was a guilty plea, it came at the last possible moment before the start of the trial.

After hearing the Offender’s father testify during the sentencing hearing and learning about the Offender’s family, a finding of guilt post-trial was almost a foregone conclusion.

While I have given the Offender credit for pleading guilty, it was commensurate with the limited savings of prosecutorial and judicial resources in this case. [ 28 ] Were it not for the Offender’s youth, the genuine expression of remorse, and the strong support of his family, I would have sentenced the Offender to the penitentiary. [ 29 ] In light of rising gun crime in Brampton, the presence of not one but two deadly sawed-off shotguns, and a significant quantity of shotgun shells (for each firearm), I am satisfied that only a sentence of institutional imprisonment will adequately address all sentencing principles at play.

No other sentence can properly address denunciation and general deterrence in adequate measure. The aggravating features of this offence and the lack of significant mitigating features distinguish this Offender from the case of R. v. Desmond- Robinson , [8] where the offender had a reduced moral culpability, fatherhood, significant responsibilities, and the lack of any further charges in his favour. [ 30 ] In the result, the Offender will be sentenced to a provincial reformatory for 18 months less one day.

This sentence accounts for the Offender’s gains toward rehabilitation, the unlikelihood of re-offence, the counselling he has undergone, the pre-trial custody and bail credits, and his remorse. In this case, probation is unnecessary. CONCLUSION [ 31 ] The Offender has been found guilty of one count in relation to his possession of two prohibited shotguns with readily accessible ammunition after pleading guilty at a late stage. In all of the circumstances a conditional jail sentence is inappropriate. [ 32 ] Ramez Cheema is hereby sentenced to spend 18 months less one day in a provincial reformatory.

For his sake and the sake of our community, I wish the Offender every success in his continued rehabilitation. Released: 07 May 2023 Justice G. Paul Renwick