Court File and Parties

COURT FILE NO.: CR-21-1043-00 DATE: 2023 07 19 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Carson Coughlin and Peter Maund for the Crown

- and –

Brandon Drakes-Simon JASON WILLIAMS Gabriel Gross-Stein and James Mencel for Brandon Drakes-Simon Harval Bassi for Jason Williams

HEARD: July 7, 2023

Reasons for Sentence

D.E HARRIS J.

[1] Brandon Drakes-Simon, Jason Williams, Melnee Christian and Justin Malcolm were convicted by a jury of the first-degree murder of Mario Ibrahim committed October 22, 2019. Mr. Drakes-Simon and Mr. Williams were also convicted by the jury of attempting to murder Mr. Ibrahim two days before he was ultimately killed. These are reasons for sentence for the attempt murder conviction for both men.

[2] The jury found that in a planned attack, Mr. Drakes-Simon shot at the car Mr. Ibrahim was travelling in on Highway 401 in the wee hours of the morning of October 20, 2019. Luckily, none of the approximately 8 bullets fired hit Mr. Ibrahim or the driver, his friend Mr. Yakub or any other person. The jury concluded that Mr. Williams was driving the SUV with the intention of facilitating the murder attempt and found him guilty on that basis.

[3] The Crown asks for a range of 14-16 years for Mr. Drakes-Simon and 11-12 years for Mr. Williams. The Crown requests the top of the range for both; the defence argues for the bottom of the range. As things stand, there is no practical consequence to the sentence as any term imposed will be concurrent and is eclipsed by the automatic life sentence being served by both men on the first-degree murder convictions.

[4] A very moving victim impact statement written by one of Mr. Ibrahim’s brothers was read at the hearing by Mr. Coughlin. It describes the pain and anguish of the family upon the loss of Mr. Ibrahim. Strictly speaking, it relates only to the murder of Mr. Ibrahim, not the offence now being considered, attempt murder. In my view it is vitally important for the family to feel part of the process and to be heard on sentence. That being said, I cannot give the victim impact statement weight towards the sentences to be imposed today.

The Facts of the Offence

[5] The facts necessarily found by the jury as a component in their guilty verdicts are that the two offenders followed Mr. Yakub and Mr. Ibrahim when the two got into Mr. Yakub's vehicle at HER nightclub at about 1:38 a.m. on October 20, 2019. As Mr. Yakub drove east on the 401 towards Toronto at the speed limit of 100 kilometres per hour or a bit above, Mr. Williams pulled the car parallel in order to enable Mr. Drakes-Simon to shoot at Mr. Ibrahim seated in the passenger seat. Mr. Drakes-Simon fired from the back seat, driver's side, at Mr. Yokub's Cadillac. The gun would have been within probably about 15-20 feet from the front passenger door of the vehicle. Mr. Yakub, once he realized that his car was being shot at, braked. The SUV driven by Mr. Williams drove off on the Highway 427 exit from the 401.

[6] The photographs entered into evidence at the trial show the deep pockmarks in the car's body from the multiple 9 mm bullets fired. Shell casings from the 9mm bullets were later collected by the police from the highway. To reiterate, the jury found that in firing the handgun, Mr. Drakes-Simon intended to kill Mr. Ibrahim and that Mr. Williams as the driver, knew of the plan to shoot to kill and drove his SUV with the intention of aiding the plan.

Aggravating Factors of the Offence

[7] A firearm used for the purposes of attempting to commit murder is a legislatively mandated aggravating factor. It triggers a mandatory minimum of five years: s. 239(1)(a) of the Criminal Code. The maximum sentence is life imprisonment. Illegal guns and handguns make lethal offences against the person of great ease to carry out while at the same time inflicting maximum injury. Illegal guns are a societal evil that must be unequivocally deterred and denounced: R. v. Danvers, (2005), 199 CCC (3d) 490 (Ont. C.A.) at paras. 77-78: R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.) at para. 25: R. v. Brown, 2010 ONCA 745 at para. 14; R. v. Nur, 2015 SCC 15 (Moldaver, J in dissent) at paras. 131 and 136; R. v. St. Clair, 2018 ONSC 7028 at para. 47; R. v. Kawal, 2018 ONSC 7531 at paras. 11-12; R. v. Chizanga and Meredith, 2020 ONSC 4647 at paras. 5-14 and 18-20. Illegal gun crime is all too prevalent in the GTA.

[8] At the time of the attempt, Mr. Drakes-Simon possessed at least two guns. The 9 mm shell casings recovered at the scene of the attempt murder and of the murder showed that the guns used in each crime were different. In one of the WhatsApp audio conversations after the killing, a third gun was referred to as well, this one a FN 40 model. Possession of multiple illegal handguns is an aggravating factor.

[9] Mr. Drakes-Simon has a previous gun conviction. In November of 2017 he was found guilty of possession of a firearm contrary to a prohibition order and possession of a gun knowing that it was unauthorized. Along with a possession of drugs for the purpose of trafficking conviction, he received a total sentence of 21 months. His possession of the guns around the time he attempted to kill Mr. Ibrahim was in violation of two section 109 firearms prohibition orders, a probation order and a bail release order.

[10] Another aggravating factor was that there was not only an intention to kill Mr. Ibrahim but there was also extreme recklessness to the level of criminal negligence with respect to the lives and safety of Mr. Yakub and other drivers in the vicinity of the shooting. Mr. Yakub could easily have been injured or killed. Other drivers, not the intended target, could have been grievously injured by Mr. Yakub’s car going out of control and crashing into them at speed or being struck themselves by a stray bullet. It would have been impossible for Mr. Drakes-Simon and Mr. Williams to be unaware of the high risk of “collateral damage” in their persistent quest to kill Mr. Ibrahim. Yet they proceeded nonetheless.

[11] The Crown’s position before the jury was that the reason for both the murder and the attempt murder was that there was a price on Mr. Ibrahim’s head. This was a contract killing. In finding first degree murder based on planning and deliberation, the jury did not necessarily accept this position. There was plenty of other evidence of planning and deliberation. The cell phone, GPS and other evidence showed that the offenders over the space of two days tracked Mr. Ibrahim on the 401, at his residence and finally to 350 Webb Drive, where he was ultimately killed. It being clear that the first-degree murder verdicts do not necessarily include a finding on the contract killing issue, as the trial judge, I have the obligation to make findings on the issue: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 17–18; R. v. Aragon, 2022 ONCA 244 at paras. 103-126; R. v. Moreira, 2021 ONCA 507 at paras. 45–51.

[12] In this connection, I find beyond a reasonable doubt based on the following that the attempted murder of Mr. Ibrahim (and his murder) was the result of a contract to kill him: a. There was conversation between Mr. Drakes-Simon and Mr. Malcolm in the WhatsApp audio clips after the murder about a white “yute” or “plug.” The conversation leads to the inference that this person was the one who put out the contract on Mr. Ibrahim; b. In a part of those conversations which the jury was not permitted to hear (see R v. Drakes-Simon and Malcolm, 2023 ONSC 2288 at paras. 15-24), Mr. Drakes-Simon muses about getting more work from this person. It can readily be inferred that this refers to more contract killing work; c. Both of the men before the court, in a moment of astonishingly brazen and foolish hubris, showed off stacks of money in photographs taken with their cell phones shortly after the murder of Mr. Ibrahim. The inference is clear that this was payment for the killing; and lastly, d. There is no other evidence to explain the crimes against Mr. Ibrahim. There was no evidence that any of the accused, apart from Ms. Christian, even knew Mr. Ibrahim. And she only made his acquaintance a few days before the pertinent events and had no possible other reason to want him dead.

[13] A killing for hire, successful or not, given its cold and carefully plotted nature, attracts the maximum deterrence and denunciation of the law. In the world of premeditated murder, it is virtually the worst and most morally blameworthy subset of an offence already at the top of the scale. The harshest condemnation under our law is reserved for murders that are committed after careful reflection as opposed to spontaneous and spur of the moment passion. A killing for money is a monetary transaction; as cold and calculated as can be. Human life becomes an expendable commodity. It is also, with respect to Mr. Drakes-Simon, a harbinger of future dangerousness, particularly where it appears that he desired to obtain other contracts to kill people for money.

Aggravating and Mitigating Factors of the Offenders

[14] For Mr. Drakes-Simon, there is little that can be said in his favour. He was young at the time of the attempt murder; 24 years old then and is now 28. He has 4 siblings and is close with his father who was present during the trial. He went to the George Brown culinary school.

[15] Besides the criminal record for guns and dealing drugs in 2017, Mr. Drakes-Simon has a previous trafficking conviction from 2016 for which he served six months pre-trial custody. There is also an assault as a youth in 2013.

[16] Mr. Drakes-Simon showed no remorse for the killing of Mr. Ibrahim. In fact, he celebrated it with his girlfriend Melnee Christian in the elevator at her Brickstone Mews apartment the first time they encountered each other after the murder, about four hours afterward. He outstretched his arms and the two hugged. It was captured by the elevator video. It is not surprising that a contract killer would feel no emotion but only the flush of success upon repeatedly shooting a handgun into a human being in the driver’s seat of a car from a foot or two away, severing his spine and killing him more or less instantly. That is chilling.

[17] It is important to keep the aggravating factors with respect to the attempt murder and first-degree murder separate. To use an aggravating factor exclusive to the murder on the attempt murder as well would artificially and erroneously increase the sentence on the attempt murder. But a lack of remorse with respect to the murder is clearly, on this evidence, also attributable to the attempt murder. In fact, Mr. Drakes-Simon pursued his intention to kill Mr. Ibrahim after his initial unsuccessful attempt. The lack of remorse is properly considered an aggravating circumstance on this sentencing for attempt murder.

[18] With respect to Mr. Williams, he has no previous criminal record. He has a good work history as a driver including for Brinks security. He has very good family support from his mother, grandmother and girlfriend. His mother collapsed when the mandatory first-degree murder sentence was imposed.

[19] It is a mystery why a person like Mr. Williams would enlist in efforts to kill a person not once but twice over the space of two days. There was nothing in his past which could explain why he did what he did. Perhaps it was the allure of easy money. Or maybe he was swept up in Mr. Drakes-Simon’s aura of charisma. All those participating may have thought that it was a foolproof crime. That is ironic given the mountain of evidence accumulated in this prosecution.

[20] In the circumstances, I recognize that Mr. Williams’ involvement, with the result of throwing his life away, is a personal tragedy for him and his family.

Conclusions

[21] Sentencing is a subjective process (R. v. M. (C.A.), 1996 SCC 230 at para. 89) and, in addition, because the factual variations are virtually infinite, precedents set by appellate cases are important and helpful but rarely definitive.

[22] Attempt murder convictions can lead to an unusually wide ambit of sentencing outcomes: R. v. Forcillo, 2018 ONCA 402 at para. 131, and see the discussion in R. v. Kerr, 2023 ONSC 3892 at paras. 50-53. This case is particularly unique. There are likely precious few instances of contract killing attempt murders. The substantial aggravating factor of an attempt with a handgun is further aggravated by the additional possession of illegal guns and the prior record of illegal possession of a gun from two years before the killing. The recklessness of firing 8 bullets on the 401 Highway at a person in a moving vehicle is sadly not unprecedented but is fortunately quite rare.

[23] For Mr. Drakes-Simon, I do not view the defence joining the Crown’s 14-16 year range and then arguing at least implicitly for 14 years as constituting a joint submission. Joining a range of sentence and then arguing for a different result than the Crown is self-evidently not a joint position: see R. v. Suberu, 2007 ONCA 60 at para. 68, aff’d on other grounds 2009 SCC 33; and see R. v. Melvin, 2010 NSCA 5 at para. 11, questioning the trial judge’s comments to the contrary at 2009 NSSC 152 at para. 28. Nor was this a result of a negotiated plea of guilty which could be argued to be a mandatory requirement of a true joint submission: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204 at paras. 1-2, 25.

[24] With respect to the 14-16 year range, I recognize the difficulty in coming to an appropriate sentencing range in the unusual circumstances of this offence and these offenders. However, given the prominent aggravating factors, in my view the lower part of the Crown position--14 years--is significantly too low. The 16 years at the top end may be on the low end as well but it is within the range. It is fit and reasonable.

[25] That is the sentence that will be imposed on Mr. Drakes Simon. This 16-year term will run concurrently with the life sentence for the murder. Recognizing Mr. Williams’ lesser role and the personal mitigating factors, the bottom of the range--11 years concurrent--will be his sentence.

[26] Ancillary orders requested by the Crown will issue for both offenders. The section 109(2)(a) orders will be for 10 years and the (2)(b) orders will be for life. DNA databank orders are also made.

D.E HARRIS J.

Released: July 19, 2023