Immigrant Sentenced to 3 Years for Calgary Road-Rage Incident With Gun; Deportation Unlikely: Judge

An Ethiopian immigrant who brandished a loaded handgun and threatened to shoot another driver over a “minor traffic infraction” in Calgary, failed in his bid to convince a judge to shorten his sentence to prevent deportation.

Alberta Court of Justice A.J. Brown rejected defence counsel’s request for house arrest and instead sentenced 27-year-old Thomas Kahsay Berhe to three years in prison for the “extreme dangerousness” of his crimes.

Permanent residents and foreign nationals in Canada can be deported if they receive a jail sentence of more than six months for a criminal offence, but Brown said there’s not much danger of Berhe being deported to Ethiopia.

“Immigration Canada does stay removal orders to enumerated countries that are in a state of war or otherwise subject to violence, danger, terrorism, etc.; currently, Ethiopia is one such country,” he wrote in his recently published decision.

The court heard that Berhe got into an argument over a minor traffic infraction with another driver at 5:15 p.m. on June 9, 2023, in the Mission district of Calgary, roughly 10 blocks south of the downtown business core of the city.

The other driver, identified in the court documents as Mr. Gabel, removed himself from the dispute and continued driving two blocks further south to enter the parking lot of a pub. Berhe followed him in his own vehicle.

As the man was parking his truck, Berhe walked up to the passenger side with a fully loaded glock pistol in his jacket pocket, and opened the door to confront him.

Mr. Gabel asked Berhe if he wanted to fight, to which Berhe replied that he was “going to shoot him,” the decision said. A fight broke out, and as punches were thrown, the glock fell out of Mr. Berhe’s pocket to the ground.

“As the fight continued, Mr. Berhe retrieved the gun and tried to point it, finger on the trigger, at Mr. Gabel,” the judge wrote in his decision. “As he pointed the Glock, Mr. Berhe next struck Mr. Gabel on the right side of the head with it. This action caused the gun once more to be knocked to the ground, out of Mr. Berhe’s hand.”

The fight continued until the two men were separated by bystanders, one of whom snatched the handgun off the ground and took it into the pub so it could be collected by the police.

Berhe fled with a woman in a white Hyundai before the police arrived.

Police inspection and testing of the Glock confirmed it contained 18 live rounds and was a fully functional restricted firearm, the decision said. Investigators also put out a Need-to-Identify bulletin that included a description of Berhe after reviewing video footage of the altercation.

Berhe was apprehended 11 days later, when a detective recognized him from the bulletin. Police conducted a “high-risk vehicle stop” of the Hyundai in which Berhe was the front-seat passenger. Officers seized a .38 calibre revolver, fully loaded with five live rounds, from the floor under his seat.

“Again, testing confirmed that the revolver was functional and a restricted firearm,” the judge wrote. “At no time did Mr. Berhe have a firearms licence, or any registration for a firearm.”

Mitigating and Aggravating Factors

The judge listed Berhe’s age at the time of the crimes, his guilty pleas, and lack of a previous record as mitigating factors in the case. He also highlighted Berhe’s remorse, post-offence rehabilitation, and his family and community support as being in his favour. He also noted Berhe is a new “fully engaged” father who is “determined to be a positive role model for his child.”

He also noted that a jail sentence of more than six months would make Berhe subject to an automatic removal order by immigration officials.

Brown’s ruling referenced R. v. Pham, a landmark Supreme Court of Canada decision in 2013, which established that collateral immigration consequences are a relevant factor to consider when sentencing a non-citizen.

The top court’s ruling said that while immigration consequences are not formal mitigating or aggravating factors, they are part of the personal circumstances of the offender and can be considered during sentencing. It emphasized, however, that a reduced sentence for immigration purposes must still be proportionate to the gravity of the offence and the degree of responsibility of the offender

“While there are serious immigration consequences flowing from a lengthy term of imprisonment for Mr. Berhe, Pham makes clear that they must never result in imposition of an unfit sentence,” Brown wrote.

He noted the “extreme danger posed to public safety” by Berhe’s actions, particularly because the incident occurred in the densely populated Calgary downtown core. He called the attack on Gabel “persistent,” adding that it only ended because bystanders intervened “at risk to their personal safety.”

“I have concluded that the seriousness of Mr. Berhe’s crimes requires a sentence of 3 years incarceration, to properly address denunciation, deterrence and public safety, and cannot be reduced despite his very sympathetic current circumstances that have come about following the birth of his daughter,” the judge wrote.

The judge sentenced Berhe to three concurrent three-year terms of imprisonment as well as an additional 180 days, to be served concurrently, for uttering threats. He is also subject to a mandatory 10-year firearms prohibition order.