Her Majesty the Queen and Ahmed Abdullahi and Naimo Warsame

R. v. Abdullahi, 2015 ONSC 4163, 2015 CarswellOnt 9804 2015 ONSC 4163, 2015 CarswellOnt 9804, [2015] O.J. No. 3443, 122 W.C.B. (2d) 404

2015 ONSC 4163 Ontario Superior Court of Justice

R. v. Abdullahi

2015 CarswellOnt 9804, 2015 ONSC 4163, [2015] O.J. No. 3443, 122 W.C.B. (2d) 404

Her Majesty the Queen and Ahmed Abdullahi and Naimo Warsame

Trafford J.

Judgment: June 30, 2015 Docket: None given.

Counsel: Kerry Hughes, Marco Cuda, for Crown I. Loui Dallas, for A. Abdullahi Marcus Bornfreund, for N. Warsame

Subject: Criminal

Related Abridgment Classifications

For all relevant Canadian Abridgment Classifications refer to highest level of case via History.

Headnote Criminal law --- Sentencing -- Sentencing for multiple convictions Accused A and W were found guilty by jury of participation in activities of criminal organization -- Accused A was also found guilty of counts of possession of unauthorised firearms in relation to five firearms, possession of one of those firearms as property obtained by crime, and conspiracy to transfer illegal firearms -- Accused W was found guilty of transfer of illegal firearm, and possession of unauthorized firearm -- Sentencing hearing was held -- Accused A was sentenced to 12 years for various weapon offences and participation in criminal organization -- Sentence broke down to four years concurrent for each of five counts for possession of five handguns in car, three years consecutive on participation count, four years for conspiracy and one year for possession of firearm obtained by crime, both discrete delicts, which were also to be served consecutively -- Accused W received total sentence of six years which consisted of two years for participation in criminal organization, three years consecutive for transfer of firearm contrary to s. 99 of Criminal Code of Canada as well as further one year consecutive sentence for possession of unauthorized transferred firearm from initial date through to date three weeks later -- Latter sentence was consecutive as separate delict because firearm was kept by accused not only as custodian for group but also as security for payment of fee owed to her by group for her services as courier on initial date and thus concurrency of sentences in context of s. 467.14 of Code did not apply -- Trafficking of firearms attracted same emphasis on general and specific deterrence and denunciation as did crimes of violence committed by actual users of firearms and those same principles applied with even greater force having regard for criminal organization legislation -- Neither accused showed any remorse and lesser sentences would not provide sense of responsibility, even though accused were first offenders -- Lesser sentences also would not provide to community sufficient reparation for risks created by accused and some other people through group's efforts to transfer firearms.

Table of Authorities Cases considered by Trafford J.:

Greenshields v. R. (1958), [1958] S.C.R. 216, [1959] C.T.C. 77, 17 D.L.R. (2d) 33, 1958 CarswellQue 29 (S.C.C.) -- considered

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R. v. Abdullahi, 2015 ONSC 4163, 2015 CarswellOnt 9804 2015 ONSC 4163, 2015 CarswellOnt 9804, [2015] O.J. No. 3443, 122 W.C.B. (2d) 404

R. c. Venneri (2012), 2012 SCC 33, 2012 CarswellQue 6107, 2012 CarswellQue 6108, (sub nom. R. c. Venneri) 347 D.L.R. (4th) 1, 93 C.R. (6th) 223, (sub nom. R. v. Venneri) 432 N.R. 54, 286 C.C.C. (3d) 1, (sub nom. R. v. Venneri) [2012] 2 S.C.R. 211 (S.C.C.) -- considered

R. v. Anderson (2014), 2014 SCC 41, 2014 CSC 41, 2014 CarswellNfld 166, 2014 CarswellNfld 167, 60 M.V.R. (6th) 1, 11 C.R. (7th) 1, 458 N.R. 1, 373 D.L.R. (4th) 577, 1088 A.P.R. 289, 350 Nfld. & P.E.I.R. 289, 311 C.C.C. (3d) 1, [2014] 3 C.N.L.R. 267, 310 C.R.R. (2d) 197, [2014] 2 S.C.R. 167 (S.C.C.) -- referred to

R. v. Beauchamp (2015), 2015 ONCA 260, 2015 CarswellOnt 5412 (Ont. C.A.) -- considered

R. v. Cooney (1995), 80 O.A.C. 89, 98 C.C.C. (3d) 196, 1995 CarswellOnt 4281 (Ont. C.A.) -- referred to

R. v. Danvers (2005), 2005 CarswellOnt 3808, 201 O.A.C. 138, (sub nom. R. v. D. (Q.)) 199 C.C.C. (3d) 490 (Ont. C.A.) -- followed

R. v. Ferguson (2008), 2008 SCC 6, 2008 CarswellAlta 228, 2008 CarswellAlta 229, 228 C.C.C. (3d) 385, 54 C.R. (6th) 197, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 425 A.R. 79, 418 W.A.C. 79, [2008] 1 S.C.R. 96, 168 C.R.R. (2d) 34 (S.C.C.) -- referred to

R. v. Gardiner (1982), [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477, 30 C.R. (3d) 289, 140 D.L.R. (3d) 612, 43 N.R. 361, 1982 CarswellOnt 90, 1982 CarswellOnt 739 (S.C.C.) -- referred to

R. v. H. (J.) (1999), 1999 CarswellOnt 1048, 118 O.A.C. 354, 135 C.C.C. (3d) 338 (Ont. C.A.) -- referred to

R. v. Ipeelee (2012), 2012 SCC 13, 2012 CarswellOnt 4375, 2012 CarswellOnt 4376, 91 C.R. (6th) 1, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 428 N.R. 1, 288 O.A.C. 224, 318 B.C.A.C. 1, [2012] 1 S.C.R. 433, 541 W.A.C. 1, 113 O.R. (3d) 320 (note) (S.C.C.) -- referred to

R. v. Lambert (2011), 2011 ONSC 3906, 2011 CarswellOnt 6282 (Ont. S.C.J.) -- followed

R. v. Roncaioli (2011), 2011 ONCA 378, 2011 CarswellOnt 3183, 271 C.C.C. (3d) 385, 278 O.A.C. 117 (Ont. C.A.) -- referred to

Statutes considered:

Criminal Code, R.S.C. 1985, c. C-46 Generally -- referred to s. 92 -- considered s. 92(1) -- considered s. 99 -- considered s. 99(1) -- considered s. 109(1)(b) -- considered s. 354 -- considered

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R. v. Abdullahi, 2015 ONSC 4163, 2015 CarswellOnt 9804 2015 ONSC 4163, 2015 CarswellOnt 9804, [2015] O.J. No. 3443, 122 W.C.B. (2d) 404

s. 354(1) -- referred to

s. 465(1)(c) -- considered

s. 467.11 [en. 2001, c. 32, s. 27] -- considered

s. 467.14 [en. 2001, c. 32, s. 27] -- considered

s. 487.051 [en. 1998, c. 37, s. 17] -- considered

s. 491 -- considered

s. 718 -- considered

s. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] -- considered

s. 718.2(b) [en. 1995, c. 22, s. 6] -- considered

s. 724(3)(d) -- referred to

s. 743.6(1.2) [en. 2001, c. 32, s. 45] -- considered

s. 743.21 [en. 2008, c. 18, s. 42] -- considered

SENTENCING HEARING of accused found guilty of multiple offences.

Trafford J.:

Introduction

1 In March 2013 the TPS obtained a court order that authorized the interception of some phone conversations of some people until June 2013. Many calls of many people were recorded. The people included Ahmed Abdullahi ("Abdullahi"), Daud Hussein, Siyadin Abdi ("Abdi"), Mohamed Siad ("Siad"), Ayanle Omar, Ahmed Farah, Naimo Warsame ("Warsame"), Khadra Omer, Hanna Hassan and some other people. The languages spoken by many of the people was English, Somali and Patois. The calls were monitored live by the TPS at a central facility, and interpreted, where necessary, by civilian employees, such as Mahamed Osman, as to the Somali language, and Kurt Eccleston, as to the Patois. Transcripts of the conversations were prepared. Various investigative steps, such as surveillance of some suspected persons by the OPP and the TPS, were devised and implemented. Security videos of some pertinent events were obtained by the TPS. Search warrants were executed at places such as Apartment 1507 at 370 Dixon Road, Warsame's apartment. The interception of calls continued. At the end of the project, many people were arrested. Those people included Abdullahi and Warsame. Many charges were laid against them under the Code in June 2013.

2 On June 2, 2015 Ahmed Abdullahi and Naimo Warsame were found guilty by a jury of participation in the activities of a criminal organization from March 2013 to June 2013, contrary to s. 467.11 of the Code.

3 Verdicts of guilty were also returned against Abdullahi in connection with the events of March 31, 2013 under s. 92(1) of the Code, 5 counts of the possession of an unauthorized firearm, one for each of 5 firearms, s. 354(1) of the Code, possession of one of those firearms as property obtained by crime, and conspiracy to transfer illegal firearms, contrary to s. 99(1) and s. 465(1)(c) of the Code.

4 A verdict of guilty was also returned against Warsame in connection with the events of April 9, 2013 under s. 99(1) of the Code, the transfer of an illegal firearm.

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R. v. Abdullahi, 2015 ONSC 4163, 2015 CarswellOnt 9804 2015 ONSC 4163, 2015 CarswellOnt 9804, [2015] O.J. No. 3443, 122 W.C.B. (2d) 404

5 A verdict of guilty was also returned against Warsame in connection with the events of April 25, 2013, under s. 92(1) of the Code, the possession of an unauthorized firearm in her bedroom, the transferred firearm.

6 Warsame was found not guilty for 2 counts under s. 92(1) of the Code in connection with the alleged possession of two other firearms in her bedroom on April 25, 2013. Those acquittals are not inconsistent with the conviction for the possession of the other firearm on April 25, 2013 in my view.

7 This is the sentencing of the defendants.

The Circumstances of the Case

8 Let me begin with the circumstances of the case, as found by the court, keeping in mind that aggravating circumstances must be proven beyond a reasonable doubt. See R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.). Any other fact must be proven on a balance of probabilities. See s. 724(3)(d) of the Code. The circumstances of the case must also be consistent with the verdicts of the jury. See R. v. Cooney (1995), 98 C.C.C. (3d) 196 (Ont. C.A.). Where the basis of the verdict is unclear, the trial judge should make his own findings of fact, consistent with the jury's verdict. See R. v. Roncaioli, 2011 ONCA 378 (Ont. C.A.) and R. v. Ferguson, [2008] 1 S.C.R. 96 (S.C.C.) at para. 18. The trial judge should only make those findings of fact necessary for sentencing purposes. See Ferguson at paras. 18 and 21. That is the approach I have taken in this case.

9 The events of March 31, 2013, April 9, 2013 and April 25, 2013 are an important aspect of this case. It is necessary to review them in some detail.

10 On March 31, 2013 the Physical Surveillance Unit ("PSU") of the OPP, including Constable Fraser and Constable DiPietro, left Windsor around 1:55 p.m. and proceeded eastbound on the 401 in pursuit of a vehicle they believed was proceeding eastbound on the 401 near Chatham with Abdullahi and some illegal firearms in it. They received some information to that effect from Detective Landry who was in the wire room associated with the interception of some calls under the court order. They did not know the make of the vehicle but believed it was a rental. Near Campbellville, Fraser and DiPietro observed a white Chrysler 200, with a Quebec licence plate, FGY 1261 ("white car"), and two black men in the front seat. They were Abdullahi, the driver, and Daud Hussein, the front seat passenger. They did not see Khadra Omer who was in the rear seat behind Abdullahi. It was about 4:15 p.m. Fraser believed the white car was a rental, based upon his experience in OPP surveillance. Fraser and DiPietro, who were both driving unmarked police vehicles, followed the white car eastbound to Dixon Road where it exited. While travelling from the Milton area to that exit, Abdullahi and Daud Hussein looked around at other vehicles because they believed they may have been under police surveillance. Abdullahi began to change lanes, accelerating to 130 kms per hour from the normal pace of traffic at the time, about 120 kms per hour. Fraser and DiPietro also exited at Dixon Road. It was about 4:40 p.m. Dixon Road, at that point, is south of the 401 and is, essentially, an east-west road. Just prior to exiting, Fraser radioed for some assistance of marked OPP cruisers. Abdullahi drove the white car eastbound on Dixon Road with Fraser, DiPietro and a marked OPP cruiser behind it. The flashing lights and siren of the cruiser were activated as all of the other vehicles stopped for a red light at the intersection with Chetta Place. It runs north and south. The white car and the unmarked cruisers of DiPietro and Fraser were in the passing lane, not the left turn lane. Suddenly, Abdullahi drove the white car north on Chetta Place, through the red light. It was about 4:45 p.m. He then turned into an apartment complex on the west side of Chetta Place. The entrance to the complex was just north of Dixon Road. The complex related to apartment buildings at 330 Dixon Road and 340 Dixon Road. DiPietro lost sight of the white car, but Fraser did not. Both of them followed the white car into the complex. Fraser and DiPietro took different routes in pursuit of the white car. The white car and Fraser were more to the south of the common area; DiPietro was more to the north. Fraser, however, did briefly lose sight of the white car because of a 4 wall near the entrance to the underground parking for the building. Fraser stopped near the top of the ramp into the parking area. DiPietro arrived there shortly afterwards. Both of them observed some damage to the door to the underground, as if someone had driven through it. Fraser and DiPietro exited their vehicles. They were wearing plainclothes, with an OPP vest and an OPP cap. Both of them carried their OPP rifles as they walked down the ramp, because they had received information that there were some firearms in the white car. Both of them observed the white car parked near a door to a stairwell; it was not situated in a parking stall. It was about 4:55 p.m. There were no people in the car. Abdullahi, Daud Hussein and Khadra Omer had taken flight. The passenger

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R. v. Abdullahi, 2015 ONSC 4163, 2015 CarswellOnt 9804 2015 ONSC 4163, 2015 CarswellOnt 9804, [2015] O.J. No. 3443, 122 W.C.B. (2d) 404

side, the hood and the windshield were damaged. Both of the officers observed a black bag on the front passenger seat. Fraser searched the bag when directed to do so by Detective Landry. Fraser placed it on the trunk. There were three firearms in it, each one in a black sock. One of the items was a Ruger handgun with a clip. The others appeared to be handguns to Fraser. He left the black bag and its contents on the white car, and returned to the top of the ramp to the underground parking, with DiPietro. Fraser advised Landry of the presence of the handguns in the white car. Many police cruisers and uniformed police officers arrived in the area, in an effort to find the occupants of the white car. They stayed there for several hours. DiPietro and Fraser maintained security of the scene at the entrance until about 5:05 p.m. At that time the black bag and its contents were turned over to Detective Purcell, who is a member of the OPP assigned to its Weapons Enforcement Unit. Purcell removed the other two firearms from the black bag. All of them had magazines in them. None of them had ammunition in them. Around 6:40 p.m. he took custody of the black bag and the handguns, and returned to the London Detachment of the OPP. On April 2, 2013 he examined and photographed them. They were illegal firearms under the Code.

11 There were five firearms in the white car driven by Abdullahi on March 31, 2013. Three of them were in the black bag, as I described. Two others were taken by Khadra Omer when she took flight from the car. She gave them to Daud Hussein, who sold them to someone in the neighbourhood. They have not been recovered by the TPS. Abdullahi had planned with Daud Hussein and Ayanle Omar to pick up the five firearms in Windsor and bring them to Toronto. Omer went with Abdullahi and Daud Hussein to courier them, by bus, to protect the others against a possible arrest. However, she did not take a bus because the schedules were reduced for the Easter weekend. Omar's motivation was to sell the firearms to some people in Toronto so they could seek revenge for the murder of one of Omar's friends. Abdullahi's motivation was purely financial in my view, as was Warsame's. However, both of them knew of the lethal character of the trafficked firearms and the risks they presented to the lives and safety of people in the Toronto area once they were in the hands of the ultimate users of the firearms. This was high risk crime to facilitate more high risk crime. Abdullahi expressed in one intercepted conversation an intention to kill the people who had custody of the two missing firearms if he discovered their identity and if they did not return them. This was not a group that was randomly formed to commit one crime. Rather, it was a continuing group involved in the transfer of firearms on several other occasions, such as on March 30, 2013 with Abdulkadir Bihi and on April 9, 2013 with Abdi and Lamar Porter (in addition to the transfer of the revolver by Warsame). On the evidence, about 10-15 firearms were the subject of the organization's efforts during the wiretap project. Four of them have been recovered. The rest of them are in the hands of persons who are prepared to use them, somehow, to commit other crimes. Those firearms are not instrumentalities of peaceful co-existence in Toronto.

12 Neither the TPS nor the OPP located anyone believed to be an occupant of the white car, in the apartment complex or anywhere else, on March 31, 2013 or in the next few days. Many people in the apartment buildings made a concerted effort to ensure the safe custody of the two firearms taken from the white car by Omer and the escape of Abdullahi and Daud Hussein from the police. The effort succeeded. However, the interception of conversations under the court order continued, live monitored through April 2013. A lot of information believed by the TPS to be pertinent to this investigation was obtained through them. It is not my intention to summarize all of those calls in these reasons.

13 As a result of such information, on April 25, 2013 the ETF of the TPS and the MCU of No. 23 Division collaborated in the execution of a search warrant relating to Apartment 1507 at 370 Dixon Road. It was Warsame's apartment. The responsibility of the ETF was to ensure the apartment was safe for the search by the MCU. Added caution was necessary because the warrant related, in part, to firearms. The plan was to contain the apartment, to breach the door, to call out the occupants, to ensure the apartment was safe and to execute the warrant. It was a well-calculated and well-executed plan by the TPS.

14 Detective Constable MacKenzie and Detective Constable Rennie were the principal ETF officers in this case. The door was breached around 1:05 p.m., using a battering ram. MacKenzie called out "Police. Search warrant. All occupants come to the front door. Nothing in your hands". A man on the couch in the living room complied with his direction and was taken into custody by Detective Constable White. The man was Warsame's brother. No one else responded. MacKenzie and Rennie entered the apartment around 1:10 p.m. to locate anyone else who did not comply with the direction. Using some stealth techniques, which included drawing their handguns, they cleared the kitchen, the living room, the balcony, the hallway and its closet and Bedroom No. 1, as shown on the diagram of the apartment entered as an exhibit. They then entered Bedroom No. 2, still looking for people. This was Warsame's bedroom. Rennie lifted the mattress on the bed. He found a revolver. This handgun was brought

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