



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2020 ONCA 163

DATE: 20200302

DOCKET: C67285

Miller, Fairburn and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Hamza Badrujaman Mohamed

Respondent

Gregory Furmaniuk, for the appellant

Catriona Verner, for the respondent

Heard: January 31, 2020

On appeal from the sentence imposed on July
    8, 2019 by Justice Heather L. Katarynych of the Ontario Court of Justice.

Fairburn J.A.:

Overview

[1]

The complainant stayed at the respondents residence
    for a few days and noticed that he had a gun. The respondent later accused the
    complainant of stealing money from his home. He intimated that if she did not
    give the money back, then he would harm her boyfriend. The complainant became
    fearful and decided to report the matter to the police.

[2]

The respondent was charged on two separate
    Informations with numerous offences. While he was prepared to enter a plea to
    whatever counts the Crown [was] seeking he plead to, the parties could not
    agree upon a joint disposition. After the respondent entered guilty pleas to
    ten offences, including weapon and drug trafficking offences, the Crown asked
    for a global penitentiary sentence of four years custody less enhanced credit
    of 437 days for presentence custody. The respondent asked for a global reformatory
    sentence of two years less a day, less 437 days credit.  He asked that he be
    permitted to serve his sentence under a conditional sentence order.

[3]

The sentencing judge agreed with the defence
    position. The respondent was credited with the equivalent of 437 days of
    presentence custody (291 real days credited on a 1.5:1 basis.) This left a net
    sentence of 292 days to serve under a conditional sentence order, followed by two
    years of probation.

[4]

The Crown seeks leave to appeal from sentence
    and asks that this court impose a global four-year sentence. The Crown accepts
    that two periods of time should be removed from that sentence: (a) the 437 days
    of presentence custody; and (b) the period of time that has already been served
    under the conditional sentence order, 207 days as of the date this matter was
    argued. The Crown argues that the sentencing judge erred by:

(a)

granting a conditional sentence for possessing cocaine
    for the purpose of trafficking;

(b)

imposing a demonstrably unfit sentence; and

(c)

overemphasizing the respondents rehabilitative
    prospects in subordination of the sentencing principles of denunciation and
    deterrence.

[5]

For the reasons that follow, I would dismiss the
    appeal in substance. I would allow the appeal only to the extent necessary to
    render the sentence imposed a legal one. The length of the sentence remains the
    same.

Was an illegal sentence imposed?

[6]

While the sentencing judge erred in law by
    imposing a conditional sentence for the offence of possessing cocaine for the
    purpose of trafficking, the error did not have an impact on the overall sentence.

[7]

The respondent was arrested while driving his
    car. A search incident to arrest revealed a loaded revolver in the vehicle, a
    few bullets in his pocket and $337 cash. Search warrants were then executed on
    his car and home, revealing around 40 grams of cocaine, over 400 grams of
    marijuana, two grams of hashish, drug paraphernalia, brass knuckles, and other
    ammunition (both live and spent).

[8]

There were two Informations before the court.
    The first Information, what I will refer to as the 
Criminal Code

Information,
    contained numerous counts. The respondent pled guilty to six of those counts:
    uttering a death threat, unauthorized possession of a firearm, possession of a
    loaded firearm, two counts of careless storage of ammunition, and possession of
    brass knuckles. The second Information, what I will refer to as the 
CDSA

Information, also contained numerous counts. The respondent pled guilty to
    four possession-related counts: possession of the proceeds of crime, and
    possession of cocaine, marijuana, and hashish for the purpose of trafficking.

[9]

The appellants first argument focuses upon the
    suggestion that the sentencing judge erred by imposing a conditional sentence on
    the possession of cocaine for the purpose of trafficking count. The appellant
    argues that this is an illegal sentence. I agree that a conditional sentence is
    not available for this offence.

[10]

Section 742.1(c) of the
Criminal Code,
R.S.C.
    1985, c. C-46, precludes a conditional sentence for offences that are
    prosecuted by way of indictment and for which the maximum term of imprisonment
    is 14 years or life:

742.1 If a person is convicted of an
    offence and the court imposes a sentence of imprisonment of less than two
    years, the court may, for the purpose of supervising the offenders behaviour
    in the community, order that the offender serve the sentence in the community,
    subject to the conditions imposed under section 742.3, if

(c) the offence is not an
    offence, prosecuted by way of indictment,
for which the maximum term of
    imprisonment is 14 years or life
[emphasis added].

[11]

Possession of cocaine for the purpose of
    trafficking is a straight indictable offence and is punishable by up to life
    imprisonment:
Controlled Drugs and Substances Act
,
S.C. 1996,
    c. 19, s. 5(3)(a). Accordingly, there is no dispute that the maximum punishment
    available for the cocaine offence precluded the imposition of a conditional
    sentence.

[12]

The dispute here is whether the sentencing judge
    did as the appellant suggests. The appellant argues that it is clear on the
    record that the respondent received a conditional sentence in relation to what
    I refer to as the cocaine count.  The appellant contends that this error means
    that the sentencing judges decision is owed no deference and it falls to this
    court to determine the appropriate sentence.

[13]

The respondent argues that it was not the
    intention of the sentencing judge to impose a conditional sentence in relation
    to the cocaine count. While it may appear from the conditional sentence order
    that one was imposed on all counts, including the cocaine count, this reflects nothing
    more than an administrative error by the person filling out the paperwork after
    sentence was imposed. The respondent points to a handwritten endorsement found on
    the
CDSA

Information in support of this argument: 291 days of
    real custody @ 1.5 = 436.5 (437 days). The respondent suggests that this
    endorsement makes clear that, while the presentence custody was not
    specifically distributed across counts, at least a portion of it was assigned
    to the cocaine count.

[14]

As any period of presentence custody could have
    fulfilled the need for a custodial disposition on the cocaine count, the
    respondent says that this endorsement should assuage any concern over whether a
    conditional sentence was imposed on that count.

[15]

Four things are clear from the reasons for
    sentence and dialogue between the sentencing judge and counsel in this case.
    First, the sentencing judge was intent on imposing a global sentence of two
    years less a day. Second, she was also intent on removing 437 days of enhanced
    presentence custody from that total. Third, she was intent on ordering that the
    292 remaining days be served as part of a conditional sentence order. And,
    fourth, she was intent on placing the respondent on two years of probation
    after he completed his conditional sentence.

[16]

The transcript of proceedings demonstrates that
    the sentencing judge struggled with how to distribute the sentence across
    counts. She repeatedly asked for the assistance of counsel on this point. In
    discussing the matter, no one adverted to the fact that a conditional sentence
    was not available for the cocaine count.

[17]

I do not agree with the respondents suggestion
    that the endorsement, assigning all presentence custody to the counts on the
CDSA

Information, answers the concern raised by the appellant on appeal. While
    that endorsement seems to suggest that the entire 437 days of presentence
    custody was assigned to those counts, the
CDSA

Information is
    equally clear that a 292-day conditional sentence was imposed on the cocaine
    count.

[18]

I agree with the appellant that the sentencing
    judge erred by imposing a conditional sentence on the cocaine count. I disagree,
    though, that it makes any difference to the overall disposition of this appeal.

[19]

Sentencing judges are to be granted a wide berth
    when it comes to determining an appropriate disposition. They enjoy a benefit
    that appeal judges do not. They sit in an especially privileged position from which
    to observe the dynamics of any given case, placing them in the best position to
    come to factual conclusions and consider those conclusions against the relevant
    objectives and principles of sentencing.

[20]

Accordingly, deference is appropriately given to
    sentencing judges, even where they deviate from a range of sentence. Unless the
    judge makes an error of law or an error in principle
that has an impact on
    the sentence
, an appellate court may not vary the sentence unless it is
    demonstrably unfit:
R. v. Lacasse
,
2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 11 (emphasis added), see also para. 44.

[21]

The sentencing judge made a clear error of law
    by imposing a conditional sentence in relation to the cocaine count. The
    question is whether the error of law had an impact on the sentence. It did
    not.

[22]

At the sentencing hearing, the parties were agreed
    that a six-month sentence would properly accommodate the drug offences,
    including the cocaine count. As the respondent had already served the
    equivalent of 437 days of presentence custody, he had well outstripped the six
    months that both parties had agreed upon.

[23]

The sentencing judge could have stayed true to
    her stated objectives and adhered to the joint position of a six-month sentence
    on the cocaine count by simply imposing a sentence of 180 days of presentence custody
    plus two years probation on the cocaine count. By approaching the matter in
    that way, all illegality would have been avoided and, for all practical
    purposes, the sentence would have remained the same.

[24]

Accordingly, in my view, the error had no impact
    on the sentence imposed. Although I would correct the illegality arising from
    the issue raised on appeal, I would not use the error as a basis upon which to set
    aside the principle of deference.

Is
    the sentence demonstrably unfit?

[25]

The appellant also argues that the two-years
    less a day sentence, conditional or otherwise, was demonstrably unfit. I
    disagree.

[26]

The appellant points to numerous aggravating
    factors in this case that render the sentence unfit. The appellant stresses the
    inherently and indisputably dangerous nature of loaded firearms and the need
    for exemplary sentences. The appellant also correctly points to the toxic
    combination of guns and drug trafficking:
R. v. Wong
, 2012 ONCA 767,
    at paras. 11-13. The appellant further points to the fact of a death threat in
    this case, the presence of multiple drugs, the victim impact, the drug
    paraphernalia and the fact that the respondents young child was living in the
    home where he kept his drugs and where his firearm had been seen.

[27]

These are undoubtedly serious aggravating
    factors that would normally attract a much higher sentence than the one imposed
    in this case, certainly into the penitentiary range. Indeed, in my view, when
    all of the respondents conduct is considered as a whole, the sentence imposed
    in this case falls below the range. Even so, I would not interfere with the
    sentence imposed.

[28]

Sentencing is not a purely mathematical exercise
    with floors below which and ceilings above which the sentence cannot go.
    Sentencing ranges are guidelines, but not hard and fast rules:
Lacasse
,
    at para. 60;
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para.
    44. As Wagner J. (as he then was) noted in
Lacasse
, at para. 58, there
    will always be situations that call for a sentence outside a particular range.
    Those situations will sometimes arise from the sentencing judges impressions
    and findings regarding the unique circumstances of the case, including the
    uniqueness of the individual who is being sentenced.

[29]

I would defer to the sentencing judges careful exercise
    of discretion in this case. She was fully aware of the range of sentence,
    specifically noting that most cases involving possession of a loaded restricted
    firearm would attract a sentence in the three- to five-year range. She went to great
    lengths to explain why it was appropriate to depart from the range in this
    case.

[30]

The reasons for sentence are detailed and
    lengthy, spanning over 300 paragraphs. The sentencing judge had careful regard
    to the seriousness of the respondents crimes. At the same time, she emphasized
    that he was a youthful first offender (25 years old at the time he committed
    the offences), had pled guilty and expressed deep remorse for his actions.

[31]

Most importantly in the sentencing judges view,
    the respondent had demonstrated his keen desire to rehabilitate himself.
    According to the sentencing judge, during his almost ten months in presentence custody,
    the respondent had engaged in a sustained effort to better himself. Among other
    things, she pointed to the certificates of achievement obtained by the respondent
    in the following programs and courses, which he completed during his time in
    custody leading up to the guilty pleas:

(a)

a creative writing program with over ten weeks
    dedicated to restorative themes, including writing about parenting, mental
    health, forgiveness and accountability;

(b)

effective parenting lessons;

(c)

a five-week course on music production;

(d)

different drug-related courses; and

(e)

an anger management rehabilitative group session
    entitled Change is a Choice.

[32]

The respondent had no disciplinary problems in
    the institution and, in fact, had gained so much respect from the custodial
    institution that he was granted specific privileges to have contact with his spouse.
    As noted by the Acting Program Leader in the education program at the Toronto
    South Detention Centre, the respondent had shown that he is a determined,
    capable and engaging participant, attends program regularly, completes
    assignments, takes initiative in his learning and asks for help when needed. The
    respondent had written an eight-hour exam toward earning his high school
    equivalency certificate. The Acting Program Leader stated in a letter, it is a
    pleasure to work with Hamza and I wish him continued success as he pursues his
    educational goals.

[33]

These are only some examples of what the
    sentencing judge reviewed in her reasons for why she held out great hope for
    the respondents future prospects. While she did not diminish the seriousness
    of the offences or the victim impact in this case, the sentencing judge balanced
    those factors against the clear rehabilitative prospects of this relatively
    young, first-time offender. The sentencing judge saw that the respondent had
    taken unusual steps to turn his life around and she was prepared to accept that
    he had good prospects for continuing on that path. The strong community support
    for the respondent only strengthened the sentencing judges conclusion in this
    regard. There was nothing wrong with sending a message to this young man, who
    had clearly demonstrated that he was trying to right his wrong and alter his
    path, that those steps had not gone unnoticed and were to be encouraged:
R.
    v. Ghadban
,
2015 ONCA 760, at para. 23.

[34]

In light of all of the circumstances in this
    case, I do not agree that the sentence is demonstrably unfit.

Did
    the sentencing judge err by overemphasizing the respondents mitigating
    circumstances?

[35]

The appellant also argues that the sentencing judge
    erred in principle by overemphasizing the respondents rehabilitative prospects.
    The appellant points to two main problems with the sentencing judges approach.

[36]

First, the appellant argues that the sentencing
    judge subordinated denunciation and deterrence contrary to law, making these
    sentencing principles ancillary benefits to a sentence that was geared toward
    rehabilitation.

[37]

Largely for the reasons already given, I do not
    agree with this characterization of the sentencing judges reasons. She was
    alive to the importance of denunciation and deterrence as critical principles to
    be applied in this sentencing context, even noting at one point that in
    general incarceration is preferable where denunciation and deterrence are
    especially important. On another occasion, she explicitly noted that specific
    and general deterrence were core consideration[s] in this case.

[38]

Given the respondents age, his guilty plea, the
    absence of a criminal record and the strong evidence of his motivation to
    become a law-abiding member of the community, and a good father and partner, there
    was nothing wrong with the attention the sentencing judge paid to
    rehabilitation, particularly given that she did not lose sight of the
    importance of the principles of deterrence and denunciation.

[39]

Second, the appellant contends that, even if it
    were permissible to emphasize rehabilitation in this case, the sentencing judge
    was wrong to view the respondents rehabilitative prospects in such a positive
    light. As the appellant put it, good behaviour under the watchful eye of the
    justice system should be viewed with caution.

[40]

It was for the sentencing judge to make a
    determination as to the genuineness of the respondents desire to improve
    himself. It is not for this court to reconsider her findings of fact in that
    regard.

[41]

I see no basis upon which to interfere with the
    sentence on this ground.

Conclusion

[42]

I would grant leave to appeal and grant the
    appeal, but only to the extent of making the sentence a legal one, which
    requires attribution of the presentence custody to specific counts.  I would do
    this in a way that remains true to the global sentence imposed by the
    sentencing judge.

[43]

I would amend the sentence as follows:

(a)

I would set aside the general endorsement on the
CDSA
Information that says: 291 days of real custody @ 1.5 = 436.5
    (437 days).

(b)

On count 1 of the
CDSA
Information,
    possession of cocaine for the purpose of trafficking, I would set aside the
    conditional sentence and impose a sentence of 120 days of presentence custody,
    to be credited at 180 days, plus two years probation on the same terms as
    previously set out.

(c)

On count 5 of the
Criminal Code
Information, the possession of a loaded firearm count, in addition to the 292-day
    conditional sentence already imposed, I would note an additional 171 days of
    presentence custody to be credited at 257 days.

[44]

The sentence, including all ancillary orders, will
    remain the same in all other respects.

Released: B.W.M. March 2, 2020

Fairburn J.A.

I agree. B.W. Miller J.A.

I agree. Thorburn J.A.


