R. v. Ahmadzai (M.A.), 2013 BCCA 80

• Judge: Lowry, Frankel and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 15, 2013
• Jurisdiction: British Columbia
• Citations: 2013 BCCA 80;(2013), 335 B.C.A.C. 22 (CA)

R. v. Ahmadzai (M.A.) (2013), 335 B.C.A.C. 22 (CA);

    573 W.A.C. 22

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. AP.011

Regina (respondent) v. Michael Atiquallah Ahmadzai (appellant)

(CA038909; 2013 BCCA 80)

Indexed As: R. v. Ahmadzai (M.A.)

British Columbia Court of Appeal

Lowry, Frankel and MacKenzie, JJ.A.

February 15, 2013.

Summary:

The accused was sentenced to the mandatory minimum one year's imprisonment for possession of a prohibited weapon (Criminal Code, s. 92(2)), three months' imprisonment (consecutive) for possession of under three kilograms of marijuana for the purpose of trafficking and three months' imprisonment (consecutive) for violating a weapons prohibition order, for a total of 18 months' imprisonment. After 6.5 months' credit for pre-trial custody on a 1:1 basis, the net sentence was 11.5 months' imprisonment. The accused appealed, submitting that the judge erred in treating the s. 92(2) offence as a second offence attracting the mandatory minimum one year sentence and in failing to give him 1.5:1 credit for pre-trial custody. The accused claimed that the total sentence was excessive. The Crown agreed that the judge erred in finding that the mandatory minimum sentence had to be imposed, but argued that the sentence imposed was nonetheless fit.

The British Columbia Court of Appeal dismissed the appeal. Despite the judge's error on the mandatory minimum sentence, the sentence imposed remained fit. There was no error in giving 1:1 credit for pre-trial custody.

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - See paragraphs 1 to 43.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - See paragraphs 44 to 52.

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for purposes of trafficking) - See paragraphs 1 to 43.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - See paragraphs 1 to 43.

Criminal Law - Topic 5877.2

Sentence - Possession of firearm, ammunition, etc., in breach of prohibition order - See paragraphs 1 to 43.

Cases Noticed:

R. v. R.L.W. (2013), 333 B.C.A.C. 218; 571 W.A.C. 218; 2013 BCCA 50, refd to. [para. 22].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 22].

R. v. Johnson (D.K.) (1996), 84 B.C.A.C. 261; 137 W.A.C. 261; 112 C.C.C.(3d) 225 (C.A.), refd to. [para. 22].

R. v. Felawka, [1993] 4 S.C.R. 199; 159 N.R. 50; 33 B.C.A.C. 241; 54 W.A.C. 241, refd to. [para. 36].

R. v. Stevovic (D.) et al. (2011), 312 B.C.A.C. 305; 531 W.A.C. 305; 2011 BCCA 460, refd to. [para. 36].

R. v. Jones (D.) (2005), 199 O.A.C. 360; 198 C.C.C.(3d) 519 (C.A.), refd to. [para. 36].

R. v. Moore (C.A.), [2005] Yukon Cases (TerrCt) 10; 2005 YKTC 10, dist. [para. 37].

R. v. Guha (M.D.) (2012), 328 B.C.A.C. 303; 558 W.A.C. 303; 2012 BCCA 423, refd to. [para. 37].

R. v. Haughton (M.W.) (2004), 187 O.A.C. 67 (C.A.), refd to. [para. 51].

R. v. Maddigan (J.), [2009] O.A.C. Uned. 169; 2009 BCCA 269, refd to. [para. 51].

R. v. Brown (D.G.) (2010), 277 O.A.C. 233; 2010 ONCA 745, refd to. [para. 51].

Counsel:

P.S. McMurray, for the appellant;

J.R.W. Caldwell, for the respondent.

This appeal was heard on February 15, 2013, before Lowry, Frankel and MacKenzie, JJ.A., of the British Columbia Court of Appeal.

On February 15, 2013, the judgment of the Court was delivered orally and the following opinions were filed:

MacKenzie, J.A. - see paragraphs 1 to 54;

Lowry, J.A. - see paragraphs 55, 57;

Frankel, J.A. - see paragraph 56.