COURT FILE NO.: CRIMJ(P) 1351/21 DATE: 2023 05 09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING T. Powell, for the Crown

– and –

JANIS CORHAMZIC and ADEM CORHAMZIC B. Grys, for Janis Corhamzic P. Chmiel, for Adem Corhamzic

HEARD: March 31, 2023

REASONS FOR SENTENCE

F. DAWSON J.

[1] On January 31, 2023 I found Janis and Adem Corhamzic not guilty of attempting to murder Mohammad Abu Marzouk but guilty of aggravated assault in relation to the brutal beating they administered to Mr. Abu Marzouk on July 15, 2018. I also found both accused guilty of assault in relation to blows they administered to Fuat Yucel during the same incident. Janis and Adem Corhamzic are before the court today for the imposition of sentence.

The Facts

[2] My findings of fact are set out in my trial judgment, delivered orally on January 31, 2023. In summary, the incident occurred in the parking lot of the Mississauga Valley Community Centre before dark on the evening of July 15, 2018. Mr. Abu Marzouk had just loaded his family’s minivan following a picnic with friends and family. He was sitting in the driver’s seat of the vehicle. His wife, his sister-in-law and five children from two families occupied the other seats in the minivan. Fuat Yucel and his wife and daughter were loading their vehicle, which was parked a short distance away. They are friends of Mr. Abu Marzouk and his family and had participated in the picnic.

[3] As Mr. Abu Marzouk just started to back out of his parking spot, Janis Corhamzic banged on the back of the minivan. He was walking behind the minivan with his brother Adem and a woman and a small child. Janis Corhamzic began yelling “fucking Arabs”, “fucking terrorists” and saying, “fucking Arabs, go back to your own fucking country.” At the urging of his wife, Mr. Abu Marzouk got out of his vehicle to see what had happened. As he approached the back of the vehicle Mr. Abu Marzouk had his palms up and said he was sorry. At that point Janis Corhamzic slapped Mr. Abu Marzouk in the face. Mr. Abu Marzouk either pushed Janis Corhamzic away or slapped him back. The men may have said “fuck you” to each other.

[4] At about that point Fuat Yucel came over and stood between the two men with his arms outstretched and his palms up. He told Janis Corhamzic that Mr. Abu Marzouk had said he was sorry and told Janis to “go away”. Janis took a few steps away but then came back, stepped around Fuat Yucel and punched Mr. Abu Marzouk very forcefully in the face or head. Mr. Abu Marzouk was pushed back and stunned but remained on his feet. He did not retaliate. Anti-Arab slurs were repeatedly uttered by Janis Corhamzic.

[5] Janis then began to walk away. Fuat Yucel followed Janis asking for an explanation why his friend had been struck and why they were being called terrorists. Adem Corhamzic then became involved. Adem swore and yelled the same sort of anti-Arab slurs while challenging Mr. Yucel to hit him.

[6] Fuat Yucel walked away. Adem Corhamzic followed behind, pushing Mr. Yucel hard on the back several times while challenging Mr. Yucel to hit him. Mr. Yucel eventually turned and took a swing at Adem Corhamzic. Adem Corhamzic and Janis Corhamzic then both attacked Mr. Yucel. One of them held Mr. Yucel while the other hit Mr. Yucel. Mr. Yucel was then tripped and struck and fell to the ground. He hit his head on the pavement and briefly lost consciousness. He sustained a concussion.

[7] Both Janis and Adem Corhamzic then viciously attacked Mohammad Abu Marzouk. Both struck Mr. Abu Marzouk, who ended up on the ground unconscious. Then they both began to kick Mr. Abu Marzouk repeatedly in the head as he lay unconscious on the ground.

[8] As these events were unfolding the women and children were begging Janis and Adem Corhamzic to stop. There was a lot of blood. The men called some of the women terrorists. The children were crying. Mohammad Abu Marzouk’s wife, Diana Attar began trying to protect her husband’s head and was begging the accused not to kill her husband. Her daughter was crying out that her father was dead. The kicking of Mr. Abu Marzouk continued until two police officers pulled up and one officer pulled out his firearm and ordered the accused to stop.

[9] Both police officers saw Janis and Adem Corhamzic kicking Mr. Abu Marzouk in the head with maximum force as he lay unconscious on the ground. One of the officers said he could see Mr. Abu Marzouk’s head moving as the blows landed. Both officers described what they saw as the most violent thing they had ever witnessed. Both said they thought the victim would be dead or close to it. Mr. Yucel and one of the officers described the kicks as like trying to kick a soccer ball with full force.

[10] Mohammad Abu Marzouk was gravely injured. He had 10 to 15 skull and skull base fractures. He suffered a traumatic brain injury of the sort seen following high speed motor vehicle collisions or motor vehicle pedestrian collisions. He had a large left-sided epidural hematoma that caused increased intra-cranial pressure and brain herniation. A large blood vessel on the surface of his brain was injured due to a skull fracture. Prior to life saving surgery Mr. Abu Marzouk was minimally responsive. He was hospitalized for a significant period, has undergone extensive rehabilitation and has been left with long term physical and psychological deficits.

[11] The neurosurgeon who operated on Mr. Abu Marzouk states that a minimum of three severe blows to the head would have been required to cause these injuries. Based on the evidence at trial I am satisfied beyond a reasonable doubt that there were certainly more than three kicks administered to Mr. Abu Marzouk’s head.

Victim Impact

[12] I have been provided with personal victim impact statements prepared by Mohammad Abu Marzouk and his wife Diana Attar and by Fuat Yucel and his wife Mualla Yucel. I also have Mr. Abu Marzouk’s trial evidence to consider.

[13] In addition, I have been provided with a community impact statement prepared by the National Council of Canadian Muslims (NCCM). Community impact statements are admissible pursuant to s. 722.2 of the Criminal Code. In this case the community impact statement has been filed to address the impact the anti-Arab hate comments uttered by both the offenders have had on the Muslim community. This is an important consideration in this case, which is somewhat unusual because the evidence establishes that Janis and Adem Corhamzic are themselves Muslim.

[14] I will deal with the personal and community impact statements separately.

Personal Victim Impact

[15] The offences have had a very significant impact on both Mr. Abu Marzouk and Mr. Yucel and their families.

[16] Mr. Abu Marzouk is 43 years old. He has no memory of the assault. He recalls being at the picnic and next recalls waking up in the hospital with his parents by his side. The brain surgery he underwent left him with a large scar and bumps on his head. Sixty-two staples were employed to close the surgical opening of his head. He was hospitalized for one month before being transferred to a rehabilitation facility where he was an inpatient for a further three weeks. After he was allowed to go home he was required to return to the rehabilitation facility weekly. He also had frequent medical appointments.

[17] Mr. Abu Marzouk has been left with three blood clots inside the back of his head which cannot be removed. He has been advised that should he strike his head or be in an accident he could suffer a medical emergency related to these clots. He lives in constant fear as a result, as do his family members. Mr. Abu Marzouk continues to suffer from debilitating headaches five years after the event. He takes pain medication and must deal with not taking too much of it. He struggles with this on a day-by-day basis.

[18] Throughout his prolonged recovery Mr. Abu Marzouk suffered from vertigo. He could not use the washroom independently, leading to a loss of dignity and privacy. His wife, Diana Attar, describes having to assist him in the washroom and in getting in and out of bed for many months. He was not able to drive for many months.

[19] About nine months after leaving the hospital, Mr. Abu Marzouk went back to school to complete a paralegal program. He now works as a sole practitioner paralegal. However, he testified he is only able to work for about half a day. He cannot get back to normal. The assault and resulting injuries have changed every aspect of his life. He experienced fear and anxiety not knowing if he would recover. His financial situation has been significantly impacted and he worries about being able to support his family. He can also see that his daughter, who recalls the incident, has been severely affected. She asks him if he is afraid. He sees that his daughter is vulnerable, and he feels unable to protect her.

[20] Diana Attar expresses that she and her family have been profoundly affected by the hateful anti-Arab rhetoric that preceded the attack. She describes herself and her husband as Arab Palestinian Muslims, both born in Saudi Arabia, who are grateful for being able to raise their family in Canada and to contribute to their community in Mississauga.

[21] Ms. Attar recounts how terrified she was when she saw her husband unresponsive on the ground and bleeding from his ears while he was kicked in the head. She said her husband was making strange sounds and there was a strong smell of blood as she tried to assist him. These are lasting impressions. She describes performing CPR on her husband until paramedics arrived.

[22] Ms. Attar describes how their family’s life is now totally different. There has been a severe financial impact. She has had to learn to drive and has trained to become a licensed real estate agent to help financially. However, she has not been able to work due to having another child. Financial concerns persist.

[23] Ms. Attar also describes negative effects on her children. The children have been traumatized by seeing their father beaten and gravely hurt. Her daughter did not eat or drink properly for months. After Mr. Abu Marzouk returned home, their daughter kept asking if her father was going to die. Her daughter wakes in the night having had nightmares and wants to see if her father is still there.

[24] Ms. Attar also describes having flashbacks triggered by television violence and describes the impact upon her of seeing one of the perpetrators at Costco one day, laughing and enjoying regular life with his family when she and her family were still going through so much pain.

[25] Fuat Yucel suffered a concussion due to the assault. He has continuing pain. He says he “lost his work” due to his injuries and almost lost his house. He describes barely being able to stay afloat financially. He remains upset by being called a terrorist and by the anti-Arab hatred that was spewed at him.

[26] Both Fuat Yucel and his wife Mualla describe the lasting effect on their daughter. Their daughter still has nightmares related to seeing her father beaten. She thought at the time that her father was dead. Mualla Yucel says that even five years after the event, her daughter must come to their bed at night to check on her father.

[27] Muella Yucel has had constricted muscles requiring injections due to the stress associated with the assault. As a woman who wears the hijab, she has been profoundly impacted by being called a terrorist. For three years she was afraid to go to the park and she still feels panic as it starts to become dark.

Community Impact Statement

[28] The community impact statement filed in this case is helpful in several respects and I have taken those aspects of the statement into account. I also observe, however, that in some respects the statement strays beyond providing community impact information by advocating for increased sentences for offences committed against Muslims in any situation where anti-Muslim bias or hatred is exhibited. To the extent the community impact statement does that, in my view, it falls outside permissible bounds. At the same time I recognize that boundaries in this area are not always easy to draw because it may be necessary to provide the court with some contextual information to assist in evaluating the community impact.

[29] There is also an element of advocacy in the community impact statement filed in this case, which includes a submission that the two accused “consciously and deliberately chose their victims motivated by the irrational and unexamined hatred they possessed.” Such a submission trespasses on the role of Crown counsel. Such submissions should not be contained in a community impact statement. Community impact statements should be restricted to providing information about the impact of the crime on the community involved, together with such contextual information as may be necessary to assist the court in understanding and evaluating that impact.

[30] During the sentencing hearing I expressed that I had some difficulty understanding how “Islamophobia”, as referenced in the community impact statement, would be a consideration in a case where the offenders as well as the victims are Muslim. As a result, Nadia Hasan was called to give evidence as a representative of the NCCM.

[31] Ms. Hasan testified that Islamophobia is not considered to be restricted to prejudice or hatred originating outside the Muslim community. Ms. Hasan testified that the term was also considered to be applicable where less traditional or more secular Muslims make racist slurs or statements directed towards other Muslims. She testified that one Muslim calling another a “terrorist” may constitute an Islamophobic slur, dovetailing with anti-Arab racism, especially with respect to Palestinians.

[32] The NCCM describes itself as a national non-partisan, non-profit organization formed to protect human rights and civil liberties, challenge discrimination and Islamophobia, and advocate for the public concerns of Canadian Muslims. The community impact statement asserts that the actions of Janis and Adem Corhamzic have frightened Canadian Arabs and Muslims across the country because many Muslims believe they could also be targeted in the same way. The statement notes that, by virtue of his name, Mohammad Abu Marzouk is readily identifiable as Muslim, as is his wife, because she wears a hijab. Muslims are impacted by the crimes in this case because many of them are similarly readily identifiable. They become afraid in their daily lives and are forced to become more vigilant in a society where hate-based crimes, including murder, are becoming more common. The community impact statement references high profile cases in Canada where multiple Muslim victims have died. This increasing fear is not diminished by the fact that Janis and Adem Corhamzic are themselves Muslim.

[33] The community impact statement also addresses the phenomenon of anti-Palestinian racism, which is a form of anti-Arab racism. The point made is that, while this case may be described as having anti-Arab racist aspects, it has a consequential and significant impact on the wider Muslim community given “the litany of evident attacks on Canadian Muslims throughout Canada, including those resulting in murder, since 2017.” All Muslims increasingly worry that their names, appearance, and visual indications of their faith leave them vulnerable to becoming targets of hate-based crimes.

[34] I find these aspects of the community impact statement to be informative and helpful in understanding how the crimes committed by Janis and Adem Corhamzic have negatively impacted the broader Muslim community.

Background of the Accused

Janis Corhamzic

[35] Janis is the younger of the two offenders. He is currently 24 years of age. He was 19 years old at the time of the offence. He was born in Ottawa on July 22, 1998 and was raised in Ottawa and Mississauga. His family moved to Mississauga to be closer to their Bosnian community. The family is described as close. Janis and his brother Adem were raised in a supportive home environment.

[36] Janis Corhamzic has no criminal record. He has been living in a stable common-law relationship since 2018. He and his spouse have two children together. The children are four years old and eight months old. Janis graduated from high school in 2016. After high school he worked in the rental car industry for several years. For the last three and a half years he has been employed delivering and preparing windows for installation. Two previous employers describe him as a hardworking and reliable employee who gets along well with others.

[37] The Pre-sentence Report (PSR) prepared for Janis Corhamzic is positive in nature. It describes significant expressions of remorse. Janis Corhamzic also prepared a statement which he read in court expressing remorse and apologizing to the victims.

Adem Corhamzic

[38] Adem Corhamzic is currently 32 years of age. He was born in Poland on November 1, 1990. He describes his mother as Polish and his father as Bosnian. Adem advised the pre-sentence reporter that he completed most of his education in Ottawa but finished high school in Germany where he moved with his family. He assisted his father in Germany operating an automobile importing and exporting business.

[39] Adem Corhamzic reports having a stable upbringing in a closely knit supportive family. He advised the pre-sentence reporter that all members of the extended family still live together in the same home and remain very close. His father describes him as sensible, good hearted and a hard worker.

[40] Adem Corhamzic is married and has two sons who are five and eight years old. Like his brother, Adem works for a window company. He works as an installer and supervises other employees. He has done that work for three years. Friends and a former employer described Adem to the pre-sentence reporter as a soft-spoken family man who is responsible, cool-headed and non-violent. Adem has expressed remorse and he also read a prepared statement in court apologizing to the victims and their families.

[41] Adem Corhamzic advised the presentence reporter that on the date in question he drank alcohol for only the second time in his life. The only information I have about this is that Adem consumed a few beers that day. The evidence does not support that alcohol consumption was a significant factor in the events I am considering.

The Position of the Parties

[42] Crown counsel submits that a sentence of 12 to 13 years in the penitentiary is the appropriate sentence. Crown counsel stresses the violent and prolonged nature of the attack, the severe injuries and lasting harm, the fact that Mr. Abu Marzouk’s head was targeted, the fact that this happened in front of numerous children, and the anti-Arab hate-based rhetoric associated with the incident.

[43] Counsel for Janis Corhamzic submits a sentence in the reformatory range is the appropriate sentence.

[44] Counsel for Adem Corhamzic seeks a sentence falling in the range between a suspended sentence and 90 days in jail.

[45] Both offenders point to their age at the time of the incident (19 for Janis and 27 for Adem), to their lack of criminal records, and to the remorse they have expressed. Both have completed an anger management program. They stress the prolonged delay prior to trial and point to their lack of further involvement with the criminal justice system.

The Principles of Sentencing

[46] Section 718 of the Criminal Code describes the purpose of sentencing. Amongst other things the purpose is to denounce unlawful conduct and harm done, to deter the offender and others from offending again, to separate offenders from society where necessary, and to assist in the rehabilitation of the offender.

[47] Section 718.1 describes the fundamental principle of sentencing by stating that, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 describes other principles of sentencing and provides that a sentence should be increased or reduced to take relevant aggravating and mitigating circumstances into account. Some aggravating circumstances are listed, but the list is not closed. The section provides that similar sentences should be imposed for similar offenders who commit similar offences and that, where consecutive sentences are imposed, care must be taken so that the total sentence does not become unduly harsh. Restraint is also warranted in imposing a custodial sentence. I bear in mind that this will be the first sentence of imprisonment for both accused.

[48] In terms of statutory aggravating circumstances, there are two that apply in this case. Section 718.2 (a)(i) of the Criminal Code provides that evidence that an offence was motivated by bias, prejudice or hate based on, amongst other things, “national or ethnic origin”, is an aggravating factor. Section 718.2 (a)(iii.1) provides that evidence that the offence had a significant impact on the victim, including their health and financial situation, is also an aggravating factor. There is ample evidence of both aggravating circumstances in this case.

Analysis

[49] I will start by commenting on the appropriate range of sentence for the offence of aggravated assault. I have been referred to several cases by the parties and I have examined several additional cases as well. I will not refer to all of them here, but I will mention those which are of assistance in establishing a range of sentence. The maximum sentence for aggravated assault is 14 years imprisonment.

[50] A case often referred to regarding the range of sentence for aggravated assault is R. v. Tourville, 2011 ONSC 1677. In that case Code J. described the range as follows, at paras. 27, 28 and 30:

[27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.).

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

[51] There are cases which suggest that the upper end of the sentencing range extends beyond the six-year mark mentioned in Tourville. For example, Crown counsel referred me to R. v. McNeil, 2020 ONCA 595, where the court upheld a “global sentence” of 10 years imposed on an Indigenous offender who committed a particularly violent aggravated assault on another inmate while in custody. The sentence was described as a global sentence because the accused was sentenced for other less serious offences at the same time. The court did not disagree with the suggestion of the trial judge in that case that the range of sentence extended up to 13 years.

[52] Crown counsel also referred me to R. v. Pangan, 2014 ONCJ 327 where, at para. 43, Downes J. held that a sentence in the range of eight to ten years was appropriate for the case of aggravated assault he was dealing with. He ultimately imposed a sentence of eight and a half years before allowance for pretrial custody, where the accused had viciously assaulted his victim by stomping, kicking and beating him before stealing his shoes. The victim was left with a severe traumatic brain injury.

[53] Crown counsel also referred me to R. v. Dunn, [2002] O.J. No. 864 (C.A.). In that case the court upheld a nine-year sentence for aggravated assault imposed on an accused who had a record for violence who had badly beaten his friend and left him alone and unconscious. The victim suffered a permanent brain injury with long term effects.

[54] In R. v. Pitkeathly, [1994] O.J. No. 546 (C.A.) the court upheld an eight-year sentence for aggravated assault for an accused who had severely beaten his domestic partner causing multiple fractures to her jaw, eye sockets, cheekbone, wrist and nose, leaving permanent disfigurement.

[55] In R. v. Marrow, [1986] O.J. No. 111 (C.A.) the court allowed a conviction appeal for attempted murder and went on to impose a nine-year sentence for the substituted conviction of aggravated assault. The appellant in that case was a 19-year-old offender with no record for violence who participated in a devastating assault on an elderly victim in her own home. The assault included kicking the victim repeatedly, breaking her cheek bones and fracturing her skull.

[56] I also observe that in R. v. Clymer, 2017 ONCJ 432, at para. 72, West J., after reviewing numerous cases, concluded that for more serious cases of aggravated assault the range of sentence extends up to ten years.

[57] Based on these authorities I conclude that the range of sentence for serious cases of aggravated assault extends at least to the ten-year mark. I observe, however, that I have not been referred to any cases which suggest that the sentence of 12 to 13 years sought by the Crown falls within the range. That said, I also observe that none of the cases I have referred to so far have involved racial, ethnic or religious hatred as a significant factor in sentencing. I turn to that factor now.

[58] Counsel for the offenders each submit that there is no basis for a finding that their client’s actions were motivated by anti-Arab or religious hatred or prejudice. On behalf of Janis Corhamzic, Mr. Grys submits that there is no evidence that the attack was planned and submits that I should conclude that the anti-Arab slurs were just a situational response to a confrontation. The submission is that if someone gets involved in a fight with an Italian or a Polish protagonist, certain common ethnic epithets may be uttered without there being any true ethnic or racial bias or hatred. Counsel for Adem Corhamzic, Mr. Chmiel, stresses that there is no evidence that the offenders generally harbour anti-Arab sentiments. Both offenders point to their own upbringing in the Muslim faith as an indication they have no religious bias.

[59] None of the insulting rhetoric which accompanied the assaults was aimed at denigration of the Muslim faith, and in that sense, it was not anti-Islamic. That is not surprising as the offenders are Muslim. However, there was a considerable amount of evidence at the trial that both offenders repeatedly uttered anti-Arab slurs and referred to both male victims of the assaults and to some of the victims’ family members as terrorists. Just as there have sometimes been divides within the Christian community between Protestants and Catholics, or between denominations within branches of Christianity, it is well known that there are divisions within Islam. Moreover, in this case the community impact statement of the NCCM refers to anti-Palestinian and anti-Arabic prejudice within Islam. I am satisfied that the conduct of the offenders, as revealed by the evidence at trial, establishes that the assaults they perpetrated were fueled by anti-Arab bias, prejudice, or hatred. I reject the submission that the comments were merely reactionary. Janis Corhamzic was uttering a full range of anti-Arab slurs before Mr. Abu Marzouk even exited his vehicle. Adem Corhamzic was uttering such comments as he pushed Fuat Yucel repeatedly in the back while asking Mr. Yucel to strike him. Mr. Yucel was walking away at that time.

[60] The only evidence I have heard supports the conclusion that anti-Arab prejudice fueled the attacks, which were particularly violent and sustained. While the accused are not obligated to testify or call any evidence, either at trial or at sentencing, it is wrong to say there is no evidence of this seriously aggravating feature. No contradictory evidence has been led and my finding on sentencing is based on the uncontradicted evidence at trial, which I accepted.

[61] Counsel for the offenders rely on three cases to support their respective positions for a sentence at the lower or lowest end of the range. Those cases are R. v. Rocchetta, 2016 ONCA 577; R. v Shahcheraghi, 2017 ONSC 574; and R. v. Hunter, 2015 ONSC 325. The sentences imposed in those cases range from a suspended sentence and probation to nine months in jail. Without going into the facts of each case, they are each distinguishable. They involved confrontations after the consumption of alcohol, did not include ethnic prejudice or hatred, and except for blindness in one eye caused by the assault in Rocchetta, did not involve other serious permanent injury. They did not involve a sustained attack on an unconscious victim or two on one beatings.

[62] I turn now to the application of the principles of sentencing. There are several aggravating factors which have already been mentioned but which call for further comment.

[63] First, there is the dramatic impact on the victims and the community to be considered. There are multiple victims in this case. “Victim” is defined in s. 2 of the Criminal Code to include not only Mr. Abu Marzouk and Mr. Yucel, but also anyone who has suffered emotional harm or economic loss because of the commission of the offences. Clearly both the spouses and the children of the two male victims have suffered considerably. Mr. Abu Marzouk and his family will suffer the consequences of these offences on into the future. They will likely still be suffering the consequences long after the offenders have finished serving their sentences. Certainly, sequelae of the physical injuries and economic loss will persist. The evidence shows that the children have been significantly impacted by seeing their fathers, who they naturally rely upon in so many ways, being brutalized to the point where they feared their fathers had been killed.

[64] These assaults were vicious and sustained. They involved extreme physical violence in a pair of two on one attacks. The repeated targeted full force kicking to Mr. Abu Marzouk’s head while he lay unconscious as the women and children cried and begged for mercy, and as Diana Attar tried to protect her husband’s head, demonstrates an intent that probably would have sustained a conviction for murder, had Mr. Abu Marzouk died, notwithstanding that it was insufficient to sustain a conviction for attempted murder. I explained why it was not sufficient for a conviction for attempted murder in my reasons for judgment.

[65] Then there is the anti-Arabic prejudice which I conclude fueled the incident. Canada is a country which prides itself on its multiculturalism. The words spoken by the offenders prior to the brutal beatings they continued to administer until confronted by a police officer with a drawn firearm, are antithetical to the foundational values of modern Canadian society. This was recognized even before the enactment of s. 718.2 (a)(i) of the Criminal Code. In R. v. Ingram (1997), 35 C.C.C. (2d) 376 (Ont. C.A.) Dubin J.A. held, at para. 8: “An assault which is racially motivated renders the offence more heinous. Such assaults, unfortunately, invite imitation and repetition by others and incite retaliation. The danger is even greater in a multicultural, pluralistic urban society. The sentence imposed must be one which expresses the public abhorrence for such conduct and their refusal to countenance it.”

[66] Given what I have said so far and having regard to the very serious injuries in this case, deterrence and denunciation are the principles of sentencing which must predominate. The sentences in this case must be long enough to ensure that the extremely violent actions of the accused, preceded as they were by hateful ethnic slurs, are denounced in the strongest terms. The point must be made to the accused and to other like-minded individuals that there is no tolerance for such unacceptable violence which strikes at the heart of our multicultural society. That does not mean, however, that rehabilitation and the other principles of sentencing have no sway. They must still be properly considered.

[67] Turning to the mitigating factors, I have already mentioned that neither offender has a criminal record. Both have good employment histories and each is in a relationship with children of their own. They have been contributing members of society. They have solid family support. They have both apologized to the victims and their families. Both expressed remorse to the pre-sentence reporter. They have each successfully completed an anger management course of their own initiative prior to sentencing. I have no reason to conclude these expressions of remorse are not sincere.

[68] The fact that a trial was required in this case must not be viewed as an aggravating factor. However, it does limit the extent to which remorse serves as a mitigating factor. Counsel for the offenders submit that a trial was only required due to the attempted murder charge. They submit that, had Crown counsel been willing to withdraw the attempted murder charge in return for a plea of guilty to aggravated assault, this case would have been resolved on that basis long ago. I take this submission into account, but to a limited extent. I note that neither offender offered a guilty plea to aggravated assault at the opening of trial. Janis Corhamzic did concede conviction for aggravated assault during closing submissions at the trial. However, Adem Corhamzic made submissions against conviction on all charges.

[69] The most significant mitigating circumstance, at least for Janis Corhamzic, is his youthfulness at the time of the offence. He was only 19. I take that into account. He is arguably more responsible than Adem in the sense that he instigated the confrontation. However, I see no basis for treating the two offenders differently. While it was Janis Corhamzic’s actions that started the incident and he was the first to make ethnic slurs, the most significant aspects of the assaults on both male victims were a completely joint effort by the two offenders acting together. Adem Corhamzic uttered the same ethnic slurs. The youthfulness of Janis Corhamzic is a moderating influence on the sentences to be imposed on him, but he was the instigator. Adem was 27 at the time of the offences.

[70] Counsel for the offenders also submit that the fact that almost five years have passed since the commission of the offence is a factor that should be considered. I take that delay into account in the sense that the accused have been on bail without incident for a prolonged period. Beyond that, in the absence of evidence or information as to the reasons for the delay, I am not able to see the delay as a significant mitigating factor. I assume that the COVID-19 pandemic played some role in that delay.

[71] Of considerable significance is the principle of restraint which must be applied in relation to a first sentence of imprisonment, particularly for a youthful offender or an offender who has good prospects for rehabilitation. I have taken this principle into account to moderate the sentences I will impose.

[72] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here, the offences, especially the one perpetrated upon Mr. Abu Marzouk, are very grave. Due to the anti-ethnic sentiment expressed before the offences, these offences have caused significant harm to the community as well as to the targeted victims. In terms of the degree of responsibility of the offenders, they bear full responsibility. Nothing occurred in this case which, properly considered, can be viewed as provocation by the victims. Mr. Abu Marzouk apologized when he came out of his van to see what had occurred. He was slapped before he pushed back. After he was punched, he did not retaliate, yet he was set upon a short time later by the offenders, both younger, who then beat him mercilessly. Mr. Yucel only took a swing at Adem after he was pushed repeatedly while walking away. Any such action was legitimately in self-defense. He too was then beaten by both offenders acting together.

[73] While no weapon was used, soccer ball kicks were repeatedly administered to the head of an unconscious man who very nearly died and has suffered permanent impairment as a result. Yet the sentence must be tempered by the offenders’ remorse and the fact that this is a first sentence of imprisonment to be imposed on relatively youthful offenders with no criminal records.

[74] I wish to mention a final case which I have found to be helpful. In R. v. Woodward, 2011 BCCA 251, the British Colombia Court of Appeal upheld a sentence of six years imposed at trial for aggravated assault. The facts were that the appellant attended a bar which catered to gay, lesbian and transgendered persons. The appellant approached the complainant and struck him once, rendering the complainant unconscious. The complainant fell backwards and struck his head on the floor causing a catastrophic brain injury which left him unable to care for himself for the rest of his life. At the time, the appellant said he hit the complainant because he was a faggot. The trial judge found that the assault was unprovoked and motivated by anti-homosexual bias and hatred. The British Columbia Court of Appeal found that a six-year sentence was entirely appropriate as a first sentence of imprisonment in the circumstances.

[75] I note that the permanent injury sustained by the victim in Woodward is more severe than the lasting injuries sustained in this case. However, in that case there was a single blow and the head injury was the result of the related fall. Here, Mr. Abu Marzouk’s brain injury was directly caused by multiple forceful kicks targeted at his head as he lay unconscious on the ground while his wife begged the accused to “let him live”. The blows continued until police intervened.

[76] Balancing all relevant considerations, I sentence the offenders as follows: for the aggravated assault on Mohammad Abu Marzouk in count 1 of the indictment, Janis and Adem Corhamzic are each sentenced to six years in the penitentiary; for the offence of assault on Fuat Yucel in count 2 of the indictment, Janis and Adem Corhamzic are each sentenced to two years in the penitentiary, concurrent to their sentences on count 1. For clarity, my intent is that the total sentence for each offender is six years in the penitentiary.

[77] In addition, Janis and Adem Corhamzic are each ordered to provide a sample of their DNA for inclusion in the convicted offender’s databank. Each will also be subject to a firearms and weapons prohibition order pursuant to s. 109 of the Criminal Code for a period of ten years.

Justice F. Dawson

Released: May 9, 2023