



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohiadin, 2021 ONCA 122

DATE: 20210226

DOCKET: C68130

MacPherson, Huscroft and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdirahman Mohiadin

Appellant

Abdirahman Mohiadin, acting in person

Danielle Robitaille, appearing as duty
    counsel

Hannah Freeman, for the respondent

Heard: February 8, 2021 by
    video conference

On appeal from the sentence imposed on January
    10, 2020 by Justice Sean F. Dunphy of the Superior Court of Justice, with
    reasons reported at 2020 ONSC 47.

REASONS FOR DECISION

[1]

The appellant, Abdirahman Mohiadin, was convicted
    of six counts arising from his possession of a loaded handgun in a car and sentenced
    to 38 months custody, less 54 days credit for pre-sentence custody (36 days grossed
    up at
the rate of
1.5:1). He abandoned his
    conviction appeal but continues his sentence appeal.

[2]

Late on the night of October 10, 2017, the appellant,
    then aged 19, was sitting in a parked car outside an apartment building in
    Etobicoke. The police were at the building investigating an unrelated matter
    and saw and smelled clouds of marijuana smoke coming from the open car window. Although
    this was just before marijuana was legalized, they thought this was too
    flagrant a violation of the law to ignore. As the police approached the car, they
    saw the appellant with a thick marijuana blunt in his hand and a satchel
    around his neck. The police saw the handle of a handgun inside the satchel.
    They immediately arrested the appellant without resistance and seized the
    handgun.

[3]

At trial the
appellant raised a preliminary
Charter
challenge to the
    seizure of the gun, but when he lost that challenge his counsel invited the
    court to make findings of guilt based on the findings made on the
Charter
challenge.

[4]

At sentencing the parties agreed on the credit
    for pre-sentence custody, but disagreed on the sentence range. The sentencing
    judge stated in his reasons
that
he understood
    the Crown sought a custodial sentence in the range of 32 to 36 months less
    presentence custody, while the defence urged a sentence of no greater than 21
    months  less
Downes
credit for more than two years spent under
    house-arrest release conditions:
R. v. Mohiadin
, 2020 ONSC 47, at paras.
    16-17. The sentencing judge imposed a sentence of 38 months  two months above
    the range he identified as having been proposed by the Crown  less 54 days
    credit for pre-sentence custody: at paras. 45-46.

[5]

On the sentence appeal, duty counsel argues that
    the sentencing judge erred by (1) exceeding the Crowns position on sentence
    without giving the appellant notice and an opportunity to make further
    submissions, and (2) refusing to give the appellant any credit, under the principles
    in
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.), for over two years
    spent under restrictive house arrest while on bail.

[6]

Having reviewed the transcript of the sentencing
    hearing
, in our view
the sentencing judge misapprehended
    the Crowns proposed sentence. He then erred by imposing a sentence greater
    than the sentence sought by the Crown without giving notice to counsel or allowing
    them to address whether such a sentence should be imposed.

[7]

The transcript of the sentencing hearing reveals
    that the Crown first proposed a range of 32 to 36 months, without addressing whether
    the appellant should be provided with
Downes
credit for the over two years
    he spent under house arrest. In response, the defence proposed a sentence of no
    more than 21 months and
Downes
credit of 8.5 months (255 days). The sentencing
    judge then asked for the Crowns position on
Downes
credit. Crown counsel
    (not appeal counsel) responded by stating that although
Downes
credit
    is discretionary and not governed by a prescribed formula, the Crown suggested
    5 months of credit for what it acknowledged was a restrictive house arrest. The
relevant
exchange
is
    as follows
:

THE COURT: All right. So I want to hear from
    you on
Downes
credit.

[CROWN COUNSEL]: Okay. So on
Downes
credit, my friend expressed it absolutely correctly. There is no ratio. Its a
    case by case situation. There are numerous cases in which one for four is
    granted. One for five; sometimes one for three, depending on the, the severity
    of the circumstances.
[The appellant], yes, he was under a house arrest for
the entirety of the
time
that
he was on bail. Yes, he had some opportunity to leave with the surety,
    but it was restrictive;
Im not going to dispute
that
.
    But there is no automatic, one  granting it one and a third. Thats just not a
    principle in law. And Im not sure

THE COURT: What credit
,
    if any,
would, what credit
, if any,
would
    you be suggesting?

[CROWN COUNSEL]: Well, Your Honour, I would
    suggest something
in the range of
one in, one
    out of five, to one, to one third. Given Mister....

THE COURT: How many months?

[CROWN COUNSEL]: Pardon me?

THE COURT:
How many months would you
    suggest? Make it simple
.

[CROWN COUNSEL]:
Five months
.

THE COURT:
Okay
.

[CROWN COUNSEL]:
Thats, thats my
    submission
. The, the last thing, Your Honour, is I know
that
this is part of that is that if the
Downes
credit is given, and depending on
what
the
sentence is
, it
may or may
    not
bring the balance of the sentence to under two years. And if thats
    the case
, then,
the Crown would be asking for
    probation. [Emphasis added.]

[8]

After the Crown suggested
Downes
credit
    of five months, the Crowns proposed sentence was not 32 to 36 months, but 27
    to 31 months. The 38-month sentence imposed thus exceeded the Crowns position by
    7 months.

[9]

In
R. v. Blake-Samuels
, 2021 ONCA 77, at
    paras. 30-33, 36-38,
per
MacPherson J.A., this court recently held
    that it is an error in principle and contrary to fundamental fairness for a
    sentencing judge to exceed the Crowns proposed sentence without giving the
    parties a chance to make further submissions. MacPherson J.A. explained, at
    para. 33, that [i]t is not appropriate to deny procedural fairness during the
    sentencing process with the expectation that any error can be cured on appeal.
    This court intervened with the sentence in
Blake-Samuels
because it concluded
    that it was impossible to say that the sentence was not impacted by the
    unavailability of submissions: at para. 36.

[10]

The same is true here. The sentencing judge did
    not give the parties a chance to address a sentence seven months longer than what
    the Crown proposed. It is impossible to say that the sentence was not
impacted
by the unavailability of submissions.

[11]

Because the sentencing judge made an error in
    principle that
impacted
the sentence, this
    court must perform its own sentencing analysis to determine a fit sentence:
R.
    v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 27;
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. The court must apply the
    principles of sentencing afresh to the facts, without deference to the existing
    sentence, even if that sentence falls within the applicable range:
Friesen
,
    at para. 27. In doing so, the court will defer to the sentencing judges
    findings of fact or identification of aggravating and mitigating factors, to
    the extent that they are not affected by an error in principle:
Friesen
,
    at para. 28.

[12]

In sentencing afresh, we begin by reiterating
the observations
of Doherty J.A. in
R. v. Nur
,
    2013 ONCA 677, at para. 206, affd 2015 SCC 15, [2015] 1 S.C.R. 773, that [i]ndividuals
    who have loaded restricted or prohibited firearms
that
they have no business possessing anywhere or at any time, and who are
    engaged in criminal conduct or conduct that poses a danger to others should
    continue to receive exemplary sentences that will emphasize deterrence and
    denunciation. In
Nur
,
both this court and
the
    Supreme Court of Canada declined to interfere with a 40-month sentence imposed on
    a 19-year-old first-time offender who tried to flee the police, was chased, and
    threw his loaded handgun under a parked car. McLachlin C.J. underscored, at
    para. 120, that [i]t remains appropriate for judges to continue to impose
    weighty sentences in appropriate circumstances.

[13]

Here, in proposing a three-year sentence before
    credit for pre-trial custody and
Downes
credit, the Crown was mindful
    of these and other authorities. Crown counsel fairly noted that some cases have
    imposed longer sentences than this for similarly serious gun possession offences
    by youthful first-time offenders, while other cases have imposed shorter
    sentences. The Crown was satisfied that its proposed sentence was appropriate having
    regard to
the following factors
: (1) the
    appellant was a youthful first-offender; (2) while there was no evidence that
    the appellant was involved in gang activity, there was also no evidence of any
    direct threat to the appellant; (3) the appellant had witnessed gun violence, his
    older brother had died in gun violence, and he lived in a part of Toronto where
    gun violence is commonplace; (4) the appellant had prospects for rehabilitation;
    and (5) although the appellant did not plead guilty, he saved several days of
    court time by effectively inviting a guilty verdict after losing a preliminary
Charter
challenge.

[14]

In our view, there is no basis to depart from
    the sentence that the Crown proposed at first instance, even though on appeal
    the Crown urges us to uphold the sentencing judges sentence despite the lack
    of procedural fairness. We recognize that, in properly balancing all the
relevant
factors, some courts might impose higher sentences
    while others might impose lower sentences. However, we are satisfied that the Crowns
    original proposal properly balanced all the
relevant
factors
    and is therefore fit.

[15]

Leave to appeal sentence is granted and the
    sentence appeal is allowed. The sentence is reduced to the Crowns original proposal,
    which is 36 months, less 54 days credit for pre-sentence custody and 5 months or
    150 days as
Downes
credit for restrictive house arrest conditions. The
    ancillary orders made by the sentencing judge remain unchanged.

J.C.
    MacPherson J.A.

Grant
    Huscroft J.A.

M. Jamal
    J.A.


