R. v. Mohamed
On these facts the s.96(2) offence was not made out because there was no evidence the appellant knew the firearm had been obtained by the commission of an offence; accordingly the conviction on count 7 (s.96(2)) is quashed. The sentence for the remaining firearm offences was reduced to three years' imprisonment less...
Source-derived case information.
- Citation
- 2014 ONCA 103
- Parties
- Appellant: Mohamed Mohamed; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 5 February 2014
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence
- Outcome
- Appeal allowed in part; conviction on count 7 quashed; sentence varied.
- Legal Topics
- Possession of Firearm Obtained by Commission of an Offence (s.96(2)), Possession Contrary to S.117.01(3), Quashing Conviction, Pre Sentence Custody Credit, Application of Nur and Smickle to Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Mohamed
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the offence under s.96(2) was made out on the facts
- 2 Whether the appellant knew the firearm was obtained by the commission of an offence
- 3 Whether possession while committing other offences establishes that the firearm was "obtained" by an offence
Ratio Decidendi
On these facts the s.96(2) offence was not made out because there was no evidence the appellant knew the firearm had been obtained by the commission of an offence; accordingly the conviction on count 7 (s.96(2)) is quashed. The sentence for the remaining firearm offences was reduced to three years' imprisonment less one year credit for pre-sentence custody, and count 4 (s.117.01(3)) carries eight months' imprisonment consecutive.
Court Disposition
Appeal allowed in part; conviction on count 7 quashed; sentence varied.
Orders
- Conviction on count number 7 (s.96(2)) quashed
- Sentence for firearm offences other than count 4 reduced to three years' imprisonment less one year credit for pre-sentence custody
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Mohamed Collection Decisions of the Court of Appeal Date 2014-02-05 Neutral citation 2014 ONCA 103 Docket numbers C56896 Judges Weiler, Karen Merle Magnuson; Rosenberg, Marc; Blair, Robert Ashley Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mohamed, 2014 ONCA 103 DATE: 20140205 DOCKET: C56896 Weiler, Rosenberg and Blair JJ.A. BETWEEN Her Majesty the Queen Respondent and Mohamed Mohamed Appellant Ian R. Smith, for the appellant John Pearson, for the respondent Heard and released orally: February 3, 2014 On appeal from the conviction entered on June 4, 2012 and the sentence imposed on August 29, 2012 by Justice C. Kehoe of the Ontario Court of Justice. ENDORSEMENT [1] In our view, on the facts of this case, the offence under s. 96(2) was not made out. There was no evidence that the appellant knew the firearm was obtained by the commission of an offence. The fact that the appellant committed any number of offences including the s. 117.01 offence by being in possession of the firearm does not mean that it was “obtained” by the commission of an offence. [2] Accordingly, the appeal from conviction on count number 7 (the s. 96(2) offence) is allowed and the conviction is quashed. [3] As to sentence, the Crown concedes that the sentence must be reassessed in light of this court’s decisions in Nur and Smickle. The allowing of the appeal on the s. 96(2) offence does not change the appellant’s moral culpability especially in view of the appellant’s prior record. [4] Accordingly, we reduce the sentence for the firearm offences, other than for count number 4, to three years’ imprisonment less one year for the pre-sentence custody. For the offence contrary to s. 117.01(3), being count number 4, there will be a sentence of eight months’ imprisonment consecutive. “K.M. Weiler J.A.” “M. Rosenberg J.A.” “R.A. Blair J.A.”