Superior Court of Justice – Ontario

Court File No.: CR-22-30000205-0000 Date: 2024-02-22

BETWEEN:

HIS MAJESTY THE KING - and - KRISHNA ARORA

Counsel: Caolan Moore, for the Crown Aswani K. Datt, for the accused

Heard: August 10, December 12, 2023

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

[1] On August 10, 2023, the accused, Krishna Arora, re-elected trial by judge alone, and pled guilty before me to four counts of the “forcible confinement” of Qasim Ali, Sana Khan, Umair Manzoor and Qaisar Iqbal. The accused also pled guilty to one count of trying to obtain money from Qasim Ali, by threats and/or violence and with the use of a firearm, and without reasonable justification or excuse, thereby committing the offence of “extortion,” contrary to s. 346(1.1)(a.1) of the Criminal Code, R.S.C. 1985, chap. C-46. All of these offences were alleged to have been committed by the accused in the city of Toronto on or about September 15, 2020.

[2] It was made plain, at the outset of the proceedings before me, that the parties had agreed that there is no mandatory minimum sentence now operating in this case, notwithstanding the fact that, at the time of the commission of the offences, s. 346(1.1)(a.1) of the Criminal Code created a mandatory minimum sentence of 4 years imprisonment where a firearm was used in the commission of the extortion offence. That provision has since been repealed and, of course, the accused is constitutionally entitled, by virtue of s. 11(i) of the Canadian Charter of Rights and Freedoms, to any “lesser punishment.” See: R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at paras. 1-6, 72-104, 117.

[3] Moreover, at the outset of the case, the parties indicated that they were quite “far apart” on the issue of the sentence that should be imposed upon the accused. Ultimately, and more particularly, the Crown sought the imposition of a nine-year term of penitentiary imprisonment, whereas defence counsel sought the imposition of a three-year term of penitentiary imprisonment. Today is the day for the imposition of sentence on the accused.

B. The Facts of the Offences

[4] The following facts were put before the court by means of an Agreed Statement of Facts, which the accused accepted as accurate, and which was made an exhibit in these proceedings.

[5] The main complainant in this case, Qasim Ali, is a real estate and immigration lawyer in Ontario. In September of 2020, his law office was located at an address in the city of Toronto. In July of 2020, Mr. Ali was working on a notice of sale to start a mortgage foreclosure with respect to a residential property owned by the accused and his wife.

[6] The accused started contacting Mr. Ali approximately one week prior to September 15, 2020, asking him what he should do about the default of payment order that had been placed on his home, that effectively cancelled his mortgage. The accused wanted to meet with Mr. Ali.

[7] On September 15, 2020, at approximately 11:00 a.m., the accused attended the law office, and wanted to meet with Mr. Ali. The accused was told that Mr. Ali was not at the law office at the moment, but that he could return to the law office at around 4:00 p.m. that day.

[8] At approximately 4:00 p.m. on September 15, 2020, the accused re-appeared at the law office for his scheduled appointment with Mr. Ali. The accused was wearing a black satchel. Mr. Ali and the accused went inside the “conference room” of the law office for their meeting. Another, unidentified, man attended at the law office very shortly thereafter.

[9] Thereafter, both the accused and the unidentified male “brandished firearms.” The accused had in his possession what appeared to be a “black handgun.” The unidentified male had in his possession what appeared to be an “Uzi sub-machine gun.” Both the accused and the unidentified male were wearing medical face-masks. While the accused subsequently lowered his own face-mask, clearly revealing his identity, the unidentified male was never seen without his face-mask.

[10] The three employees of the law office, namely, Sana Khan, Umair Manzoor and Qaisar Iqbal, were all bound, by the unidentified male, with duct tape, wires and cables, and were made to lie, face down on the floor in a room near the reception area. Duct tape was placed over their mouths.

[11] Mr. Ali was initially confronted by the accused in the conference room by the front of the law office. At that point, a cartridge or magazine fell to the floor from his firearm. A “scuffle” ensued when Mr. Ali stepped on it and tried to keep it from the accused. The accused eventually “won out” and obtained the device and then pointed his firearm at Mr. Ali, at which point Mr. Ali complied with the accused’s directions.

[12] At the preliminary hearing in this case, in March of 2022, Mr. Ali testified that while he believed that the accused was using a “real gun” at the time, because of how heavy it was, upon reflection, he came to believe that it was most likely an “airsoft gun” or something similar because there was a type of cylinder in the handle of the gun.

[13] The accused directed Mr. Ali to use the computer in his office to access a database and “withdraw the default payment order” on the accused’s mortgage. As ordered by the accused, Mr. Ali sent an email message requesting a discharge of the “mortgage foreclosure” regarding the accused’s property.

[14] At approximately 4:37 p.m. on September 15, 2020, the accused directed Mr. Ali to leave the law office, with the accused, and attend a bank, where he wanted Mr. Ali to withdraw a large amount of money for him. When they left the law office together, the accused left his black satchel with the unidentified male, who remained in the law office, standing “guard” over the bound employees of the law firm. Mr. Ali believed that the accused had left his firearm with the unidentified male as well.

[15] After the accused and Mr. Ali had left the law office, the unidentified male obtained various personal items from the bound law firm employees, such as their driver’s licenses, keys and phones, while making threats to them that “he knows where they live.”

[16] The accused had Mr. Ali drive him to a nearby TD bank branch in Scarborough, that was approximately two kilometers away from the law office.

[17] At the TD bank, Mr. Ali, at the instruction of the accused, arranged to have two bank drafts, totalling some $1.75 million, from his law firm’s trust account, both payable to Krishna Arora, and dated September 15, 2020. One of the bank drafts was for $900,000 and the other bank draft was for $850,000. After they were created at the bank, the accused took possession of both of these bank drafts.

[18] After they left the bank, and returned to Mr. Ali’s vehicle, the accused told him to “just drive.” Subsequently, the accused tried to put Mr. Ali “at ease” by directing Mr. Ali to proceed through a McDonald’s “drive through” and buying them a couple of “lattes.”

[19] At approximately 5:13 p.m. that day, the unidentified male left the bound employees, and exited the law office, making good his escape. The law office employees were able to free themselves a few minutes later, and they ultimately placed a 911 emergency call to the Toronto Police Service (TPS) at approximately 5:17 p.m.

[20] At approximately 5:19 p.m., the accused and Mr. Ali were together in a commercial parking lot, drinking their lattes, and talking to each other. This was the area that the accused had directed Mr. Ali to park his vehicle. This parking lot was just south of the McDonald’s location, and about 3.5 kilometers south of the law office.

[21] At approximately 5:50 p.m. that day, the accused left the vehicle, and Mr. Ali drove away. As the accused had said things to him that caused him to believe that the safety of his family might be in jeopardy, Mr. Ali drove right home, a location that was only a couple of kilometers away from his law office. When Mr. Ali arrived home, he found his wife and other members of his family safe, and unaware of what had been happening. Mr. Ali then charged his phone (the battery of his phone had earlier been exhausted), told his family to stay inside with the doors locked, and then he headed back to his law office.

[22] Within hours of his release from the accused, Mr. Ali rescinded his earlier request to have the accused’s mortgage discharged.

[23] On the following day, September 16, 2020, the police received information that the accused was at a Novotel Hotel location in Toronto, with two other individuals. At approximately 8:20 a.m. that day, the accused left the Novotel in an Uber vehicle. Shortly thereafter, he was arrested, without incident, by the police. The accused cooperated with the police thereafter.

[24] When he was arrested, the accused had an envelope in his pocket that contained the two bank drafts made out to his name, in the total amount of $1.75 million, as well as a receipt for the withdrawal of the two individual amounts of $900,000 and $850,000 from the TD Bank at 5:00 p.m. on September 15, 2020. While it had been the intention of the accused to deposit those bank drafts in his account, those funds were, in fact, never deposited into any account in favour of the accused.

[25] The two individuals who had been in the Novotel Hotel with the accused the previous night were both arrested a short time later, as they were exiting the hotel room. Ultimately, they were both released. Neither of them were the unidentified masked man that had helped the accused the day before.

[26] On September 17, 2020 a search warrant was executed at a location in Ajax, Ontario that was linked to the two men that had stayed in the Novotel Hotel with the accused, and in a bedroom closet, the police discovered the satchel that had been worn by the accused (and subsequently the unidentified male) in the law office on September 15, 2020. This satchel contained a black imitation handgun with a CO2 cartridge, and the driver’s licenses of Umair Manzoor and Sana Khan.

[27] Subsequent testing of the imitation handgun revealed that it had the characteristics of a barrelled weapon under s. 2 of the Criminal Code, and that it fired projectiles at an average speed of 278.56 feet per second. The accused acknowledged that this imitation handgun, which had been used by the accused in the law office on September 15, 2020, was either a restricted or prohibited firearm.

[28] The accused admitted having no personal knowledge of the nature or functioning of the weapon that was possessed by the unidentified male in the law office on the afternoon of September 15, 2020, but he acknowledged that the unidentified male wielded an object that appeared to be, and was held out to be, a restricted or prohibited firearm.

[29] It is not alleged that either of these restricted or prohibited firearms were ever actually discharged by either the accused or the unidentified male.

[30] The accused admitted that he was not legally authorized to possess any type of firearms in September of 2020.

[31] Video surveillance footage from inside and outside the law office was obtained by members of the TPS in their investigation of this case, and it captures most of the events acknowledged by the accused about events in the law office. Similarly, video surveillance footage at the TD Bank, subsequently obtained by members of the TPS, shows the presence of the accused and Mr. Ali at that location.

C. The Personal Circumstances of the Offender

1. The Pre-Sentence Report

[32] The accused is now 39 years old. He was born in India, where his parents still reside, but he immigrated to Canada in 2014 and is now a permanent resident. The accused has an older sister, who also still lives in India, with her husband and their child.

[33] According to the author of the Pre-Sentence Report, the accused’s father, a lawyer in India, was very physically abusive to the accused and his mother, in that he was “aggressive, very authoritative” and very intimidating. Accordingly, the accused witnessed, and was the victim of, a “tremendous amount of domestic violence” by his father. While the accused remains “scared” of his father, the accused described his father as a “role model” for him, and as his “biggest supporter” in life. However, the accused described his “deep bond” with his mother, who he still contacts frequently.

[34] The accused told the author of the Pre-Sentence Report that he has had only one romantic relationship in his life – the one with his wife, who works both as a travel agent and real estate agent. They began their romantic relationship in 1999, and they were married in 2012. They subsequently had two sons. They came to Canada together in 2014, when the accused became engaged in some “property disputes” in India, which caused some “financial downturn.” In the result, his father encouraged the accused to come to Canada “for a better future,” even though his family in India was “quite prestigious and notable.”

[35] By way of an education, the accused has a law degree from a university in India, and he has authored published law books with his father. The accused worked in India as a tax lawyer until 2012, at which point he transitioned into “real estate construction/investment.” Initially, this just successfully “took off,” but in 2018 he had to “sell off” some of those properties at a $250,000 loss, which was an unprecedented “major hit” to his financial situation.

[36] In Canada, the accused continued his education at Sheridan College, in the International Services Department, graduating in 2015 with a Certificate in “International Business Management,” following his successful completion of a one-year course. Similarly, in 2016, the accused attained a Certificate in “Business Decision Making,” following his successful completion of a one-year course at George Brown College.

[37] As to his future ambitions, the accused has talked about working on the publication of law books, learning the construction trade, and continuing to “flip” investment homes, that he buys, renovates, and then sells.

[38] The accused denies having any addictions, noting that he is only an occasional “social drinker” and asserting that he has never tried any other drugs, including marijuana.

[39] The author of the Pre-Sentence Report described the accused as presenting as “cooperative, respectful and engaged,” answering “most questions” in a “forthcoming” manner. However, the accused was “quite eager” to “speak highly of himself, his education, and his merits,” noting that the Pre-Sentence Report was like a “platform” for him to say the things that “the court should be aware of” about him.

[40] The accused apparently explained to the author of the Pre-Sentence Report that he pled guilty to these offences as he had “no choice,” given that he did not have the “large amount of money” he needed (i.e. $90,000) to “fight the case.” The accused indicated that he was “merely a victim” in a “larger scheme” that had been “orchestrated” for him to “save his house.” The accused also said that he did not think his actions were “serious” as he had been told that the “insurance will cover any losses.”

[41] The accused admitted that he had been seeking mental health therapy/counselling from a registered Psychotherapist between October of 2020 and June of 2023, to address Post-Traumatic Stress Disorder (PTSD), depression, anxiety and gambling. Apparently, the accused noticed that his mental health started deteriorating in 2018, when he began to experience financial loss, losing some $200,000 in the “volatile” stock market. That was when the accused “started gambling.” The accused stated that he lost $500,000 over the following two years “chasing [his] losses” at the casino. However, the accused indicated that he last visited a casino in March of 2020. These basic facts were confirmed in a letter provided to the court by the registered Psychotherapist who has been treating the accused.

[42] Defence counsel made it clear, however, that these mental health issues experienced by the accused, and his declared interest in pleading guilty to get this case over with, did not diminish, in any way, his admitted responsibility and culpability for these present offences. The accused made it clear that he pled guilty to each of these alleged offences because he was guilty of these alleged offences.

[43] The accused told the author of the Pre-Sentence Report that he will have no further involvement in the criminal justice system as he is a “very family-oriented person,” is now “aware of the company he keeps,” and because he never wants “to do mortgages again.”

[44] As the author of the Pre-Sentence Report accurately noted, given his education and employment background, and the continued support he enjoys from his family, the accused certainly has the “capacity and the ability to live a productive life,” but in order to do so, he will have to make much better life-style decisions, and become much better at problem-solving and financial management.

2. The Accused’s Brief Criminal Record

[45] The accused has a brief criminal record in Canada. He was convicted of “attempted fraud” with a value over $5,000, on July 7, 2022. This was an offence that occurred before September 15, 2020, but he was not charged until after that time. In the result, the accused received a conditional sentence of one-year duration. He successfully completed his house arrest and curfew conditions coincident with this order.

3. The Character Reference Letters

[46] Defence counsel filed, in support of his sentencing submissions, a host of character reference letters that were written, by a variety of individuals, on behalf of the accused. While I have carefully read all of these letters, I will not attempt to summarize all of their contents. Rather, I will try only to outline aspects of some of these letters.

[47] The accused’s spouse (Ankita Thukral) described the accused as someone with “integrity, responsibility and compassion” and as a “loving father, devoted spouse, and an active member of our community.” The offences came as a “profound shock” to her and the news of his “legal transgressions left [her] feeling disappointed and disheartened.” She understood that the accused placed “family as his top priority” and his “misguided choices” were driven by an “intention to guard [her] and [their] children.” She described how the accused has accepted “full responsibility” for his actions and is “committed to living the remainder of his life as a law-abiding individual.” His wife emphasized the extent to which her husband has suffered since his arrest, noting that the accused has “lost his career, finances, friendships, respect, and most crucially, his freedom.” This has caused the accused to “mature” into a “more accountable individual” who now expresses “genuine remorse” along with a “resolute commitment to address the root cause of his actions.” The accused’s wife described these offences as an “isolated incident” and do not define the entirety of the accused’s character.

[48] Similar sentiments were expressed by the accused’s brother-in-law (Ankur Thukral). He described the legal problems experienced by the accused as a “challenging ordeal,” and he too noted that the accused “lost his home, his job, and the respect of those around him,” causing him to utterly despair about the “guilt and shame” he had brought upon his family. He observed, however, that with “consistent professional therapy” and the “unwavering support” of his family, the accused has emerged as a “much more stable” person. He described the accused as a “devoted family member,” and as a “loving and dedicated husband” and a “caring father.”

[49] One of the accused’s friends (Ankush Suri) described him as a “responsible and conscientious member of society,” with “unwavering integrity,” who has “always approached life with a sense of fairness and respect for others.” According to this person, he has no doubt that the accused “regrets the situation” and is “taking the necessary steps towards rehabilitation and personal growth.”

[50] The accused’s father (Deepak Arora) indicated that he believed in his son’s “capacity for growth and redemption” and noted that he had seen “moments of goodness, kindness, and remorse in him” even in the midst of this “difficult time.” He described how the accused has “carried the weight of guilt” and has relentlessly blamed himself for “bringing shame to [their] family and causing pain to his loved ones” through his “ill-advised choices.” He described the “remarkable positive impact” that “therapy” has had on the accused, and how he has emerged as a “resilient and transformed individual” who has become “stronger and more responsible.” He described how his son was “grappling” with his own “inner turmoil” and who was “struggling, hurting and regretting his actions.”

[51] The accused’s father-in-law (Indu Thukral) described the accused as someone with a “strong moral character,” who always displayed “honesty, integrity and a commitment to doing what is right.” He detailed some past community service by the accused and noted that the accused has always “shown a genuine desire to make a positive impact on the lives of others.” He suggested that this exemplified the accused’s great “capacity for empathy, selflessness and genuine concern” for others, and demonstrates his “potential to continue making positive contributions to society.”

[52] While these letters all seek, perhaps understandably, to assist and benefit the accused in his sentencing, by extolling his many perceived virtues and excellent character, I must note that they uniformly fail to acknowledge one undeniable reality: that, in the commission of these serious offences – where entirely innocent people were threatened with firearms, tied up and forcibly confined in a room, and where a lawyer, who had been doing nothing but his job, was extorted (at least temporarily) out of $1.75 million by the accused – the accused engaged in conduct wholly inconsistent with these tremendous virtues. Indeed, in the commission of these terrible crimes, the accused showed that he is capable of threatening great violence, brandishing firearms to terrify others, and entirely selfish and greedy misconduct, regardless of its predictably traumatic effect on others.

4. The Potential Immigration Consequences to the Accused

[53] One of the letters that defence counsel provided in support of his sentencing submissions on behalf of the accused, is an opinion letter from an immigration lawyer outlining the potential immigration consequences to the accused.

[54] This letter notes that the accused has resided in Canada since 2014, and that he became a permanent resident of Canada in 2017. However, the accused remains a citizen of India. The letter also notes that the accused is married to a Canadian citizen, and that the accused and his wife have two children, aged seven and four years, who are both Canadian citizens.

[55] The legal opinion expressed in this letter is that the accused, having been convicted (upon his pleas of guilty) of four counts of forcible confinement and one count of extortion, is now liable to be labelled as “inadmissible” in Canada under the provisions of the Immigration and Refugee Protection Act (IRPA) for this “serious criminality.” This letter also notes that, if he receives a sentence of more that six months imprisonment, for any single offence, the accused will lose his right of appeal under the IRPA against a finding of “inadmissibility” based on his “serious criminality,” and is likely to face a deportation order requiring his removal from Canada back to India.

[56] I must, of course, take into account these potential immigration consequences to the accused in the sentence that I impose upon him today. See: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. But, it is immediately apparent that none of these potential consequences can realistically now be avoided. Even if defence counsel were successful in convincing me that the accused should only be subject to a three-year term of imprisonment, that lesser sentence would still be far beyond the six-month term prescribed in the IRPA. Accordingly, these potential immigration consequences for the accused must simply be taken into account in the sentence imposed upon the accused, in full knowledge that the accused may well suffer the immigration consequences he fears.

D. The Victim Impact Evidence

[57] These offences had a predictably significant adverse impact upon all of the various victims. I will be unable to accurately capture all aspects of the physical and emotional trauma that they suffered as a result of the crimes committed by the accused, but this brief summary will, hopefully, suffice to highlight at least some of the adverse consequences of the offences to the victims.

[58] The lawyer, Qasim Ali, told the author of the Pre-Sentence Report that these offences have left him with “mental trauma,” and that he has been taking therapy for his anxiety and panic attacks, and this therapy has helped him “a lot.” Mr. Ali recalled that, as the crimes were unfolding, he “thought the worst” because the offenders “had guns” and his work colleagues were “tied up.” Mr. Ali indicated that this has left a “lasting negative impact on [their] lives.” Mr. Ali explained that they had to “increase the security” at the law office, and he is “disappointed” at the financial loss which they suffered due to the fact that the offenders “broke [their] phones” and caused total damage of close to $25,000. Mr. Ali also indicated that his colleagues had to have “physical therapy” because of the assaults that they endured and the manner in which “they were tied up.” Mr. Ali accurately observed that they were all victims in this case.

[59] Mr. Ali confirmed all of this evidence in his own, eloquent, Victim Impact Statement. Mr. Ali described how the memory of the event still “claws” at him and haunts his “every waking moment,” given that the “cold steel of a gun” had been pressed against his temple, and that he had heard the “anguished cries” of his employees, as their bodies were “bound and vulnerable.” Mr. Ali recounted the “weight of responsibility” he felt when he was forced to “empty his trust fund” in favour of the accused, given that his countless clients had “entrusted” him with their “legal affairs.” Mr. Ali described how he felt he “might never hold [his] family again,” and that the children of his employees might forever “bear the scars of this senseless act.” Mr. Ali described how he had become a “victim” of “such monstrous malevolence,” and how the crimes continued to shake him to the “very foundations.”

[60] Afifa Quasim also prepared a Victim Impact Statement. She indicated that she was one of the victims of this “traumatic and horrifying experience” and its impact on her and her husband has been “profound” and has affected “every aspect of [their] lives.” Ms. Quasim indicated that the “emotional scars” have “lingered” with them, and have created a “constant undercurrent of fear and anxiety in [their] daily lives.” Indeed, Ms. Quasim has been “plagued by recurrent panic attacks triggered by the slightest reminder of that nightmarish event.” In an effort to cope with the “aftermath of this traumatic event,” both have sought professional help through therapy,” and this has provided them with “some solace.” She indicated, however, that the “scars from this horrifying experience run deep” and continue to affect them “every single day.”

[61] In her Victim Impact Statement, Sana Khan, indicated that this incident had changed her life “forever” in that it continues to affect her “daily life, relationships, mental and emotional well-being.” Ms. Khan described how her life “flashed before [her] eyes” when she was approached in the law office that day by a man with a gun. She thought she was going to be killed, and she endured an uncontrollable “panic attack” when she was forcibly confined in a nearby room. Ms. Khan indicated that the thought of it still makes her cry. Since seeing a psychiatrist for treatment, she has been diagnosed as suffering from “severe Depression, Anxiety and Post-Traumatic Stress Disorder,” for which she has been taking medication, and suffering the “negative side affects.” Ms. Khan also noted that she has also been suffering from “weight gain, insomnia, headaches, agitation, muscle pain, upset stomach and shaky feelings.” All of this has impacted upon the quality of her life. Eventually, she moved to Alberta with her children, while her husband remains in Toronto, so that she can “feel safer.” These many adverse effects have all been in addition to the financial costs of the crime, which resulted in her having to replace her phone, change the locks on her car and home, and seeing a therapist, which has been “costing a fortune.” Much of this information was confirmed in the Victim Impact Statement provided by her husband, Razi Khan.

[62] In her Victim Impact Statement, Qaisar Iqbal, sought to describe the “profound and far-reaching consequences of the criminal actions” of the accused, which have “significantly impacted” her life and that of her family. Ms. Iqbal suffered an injury to her right arm, which she sustained during the course of the offences, and notwithstanding the substantial medical efforts to repair the problem, she still suffers from “persistent pain” that has compromised her ability to perform even routine tasks, and fulfill her professional duties. Ms. Iqbal also described the “emotional toll” of the crimes as “staggering,” in that there remains a “haunting fear, pervasive anxiety, and a profound sense of vulnerability,” which collectively cast a “pervasive shadow over [her] daily life and interactions.” She also faces the financial strain caused by the ongoing costs associated with her medical expenses. Ms. Iqbal suggested that she has suffered an “enduring and pervasive impact” on both her “physical and emotional well-being” as a result of the crimes of the accused.

[63] In his Victim Impact Statement, Umair Manzoor indicated that the accused’s crimes have “left a profound impact” on his life, especially considering that he had just come to Canada from Pakistan, in part because of the “superior security” in Canada. In the result, the crimes “shattered [his] sense of security and disrupted [his] pursuit of a better life.” Moreover, Mr. Manzoor indicated that he has remained “haunted by fear” and that the crimes made him question the “safety of other environments” in Canada. In the result, he was “afraid to go out [or] meet new people.” The “trauma” of the offences “hindered [his] ability to concentrate on furthering [the] development” of his professional career. Mr. Manzoor viewed the offences as a “close call with losing [his] life.”

E. The General Sentencing Principles

[64] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[65] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[66] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• When consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[67] In the circumstances of the present case, the main sentencing principles must be deterrence and denunciation. The criminal offences committed by the accused were exceptionally serious. The accused and an unidentified male planned and executed an attack on a law office business premise, that employed the brazen brandishing of two firearms, the forcible confinement of multiple employees of the law office, threats to the law office employees, threats to the lawyer to remove the legal steps that had lawfully been taken to encumber and sell the home of the accused, and the extortion of some $1.75 million from the lawyer. The fact that these terrible offences could only prove “successful” in their criminal goals with the killing of at least the lawyer, if not the other employees of the law firm, could only have served to make these offences more threatening, terrifying and traumatic to the victims. The sheer gravity of these crimes calls out for the imposition of a lengthy penitentiary term of imprisonment, as the parties appear to agree. At the same time, however, rehabilitation must also be an important factor in the sentencing of the accused, especially given his unique personal circumstances, his nearly unblemished personal background, and his excellent prospects for the future. The accused is certainly in a position to eventually, once again, become a productive and contributing member of civilized society. Accordingly, the sentencing of the accused must seek to properly and fairly balance all of these various considerations.

F. Analysis

1. Credit for Pre-Sentence Restrictions on Liberty of the Accused

[68] After serving a short period of pre-trial detention following his arrest, the accused has been on a strict “house arrest” bail for approximately 29 months (or approximately two years and five months). More specifically, the accused has been on this strict judicial interim release order for two distinct periods of time, namely, from September 29, 2020 to July 7, 2022, and then again from July 7, 2023 to today, February 22, 2024. The accused never breached any of the conditions of his bail.

[69] The parties agree that the accused should be given fair credit for the time that his liberty was significantly restricted while he was detained in custody and while he was on this “house arrest” bail order pending his trial in this matter. However, they disagree slightly as to the precise amount of credit he should be given in this regard.

[70] This issue is largely (but not entirely) about the credit that the accused should receive for the time he was released from custody on bail pending his trial. Importantly, in R. v. Downes (2006), 79 O.R. (3d) 321, 205 C.C.C. (3d) 488, at para. 37, the Court of Appeal for Ontario held that, where an accused is the subject of “stringent pre-trial bail conditions,” including time spent effectively under “house arrest,” this mitigating circumstance must be given some weight in the sentencing of the accused. More specifically, Rosenberg J.A., for the Court, held that, in the circumstances, the accused was entitled to five months credit in relation to the 18 months he was on bail and subject to a condition of “house arrest” requiring him to remain in his residence “except in the company of his surety.”

[71] The present case is, in some ways, similar to the factual circumstances presented in R. v. Downes. According to the strict terms of his judicial interim release order, the accused was required to reside with one of his sureties at her Etobicoke residence, and remain in that residence (under house arrest) at all times except for: (1) medical emergencies involving him or a member of his immediate family; (2) when he was in the “direct and continuous” company of one of his sureties or his lawyer; or (3) when he had to pick up his son from the school bus stop. These judicial interim release orders placed some significant restrictions on the liberty of the accused.

[72] In my view, this constitutes a significant mitigating circumstance in this case, and merits a total custodial credit of approximately ten months. In other words, the duration and terms of the short period of pre-trial detention and the “house arrest” bail orders that governed the conduct of the accused during this period is tantamount to a jail term of approximately ten months duration. See: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147, 114 O.R. (3d) 641; R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614, at paras. 36-43; R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409, at paras. 38-43; R. v. Hatimy, 2014 ONSC 1586, [2014] O.J. No. 1154, at paras. 52-54; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 23-38; R. v. Daniels, 2015 ONSC 2520, [2015] O.J. No. 1917, at paras. 29-32, affirmed, 2017 ONCA 551, 385 C.R.R. (3d) 188. Accordingly, the sentence that would otherwise have been imposed upon the accused will be ultimately reduced by ten months.

2. The Ancillary Sentence Orders

[73] In addition to the term of imprisonment (minus fair credit for the pre-sentence restrictions on the liberty of the accused), the Crown seeks the imposition of a number of ancillary sentencing orders, including: (1) an order that samples be taken from the accused for the purpose of including his DNA profile in the DNA databank; (2) an order prohibiting the accused from the possession of any firearms, ammunition or explosive substances for life; (3) a forfeiture order in connection with the firearms used during the course of the commission of the offences; (4) a victim fine surcharge in the amount of $1,000 in relation to the five criminal offences committed by the accused (payable within 12 months following his release from jail); and (5) a restitution order in favour of the lawyer, Qasim Ali, in the total amount of $23,440.38 in respect of his demonstrable financial losses in connection with these offences (payable within 24 months following his release from jail).

[74] Apart from suggesting that the accused be given a reasonable time to make payments in relation to the financial consequences of some of these proposed orders, and opposing the proposed restitution order in favour of Mr. Ali, defence counsel did not challenge the need to make the rest of these proposed ancillary sentencing orders.

[75] In any event, I will now make all of the requested ancillary sentencing orders.

[76] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order, in form 5.03, requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The crime of “extortion” admittedly committed by the accused is a “primary designated offence,” as defined in s. 487.04 (a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

[77] Second, pursuant to ss. 109 of the Criminal Code, there shall be an order prohibiting the accused: (1) from the possession of any firearm, crossbow, restricted weapon, ammunition, and explosive substance for a period of ten years after the release of the accused from his term of imprisonment; and (2) from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for the rest of his life.

[78] Third, pursuant to s. 491 of the Criminal Code, I order the forfeiture of the firearms that were used during the course of the commission of these offences.

[79] Fourth I order the accused to pay a victim fine surcharge in the amount of $1,000 in relation to the five criminal offences committed by the accused, which shall be paid by the accused within 12 months following his release from his term of imprisonment.

[80] Fifth, I make a restitution order in favour of Qasim Ali, in the total amount of $23,440.38 in respect of his demonstrable financial losses in connection with these offences, which total shall be paid by the accused within 24 months following his release from his term of imprisonment in this case. I simply see no reason not to make this order, which makes the accused responsible, at least in part, for the financial losses that his crimes caused.

[81] I note in passing that the opposition to this order by defence counsel was based, at least in part, on the fact that the accused was not the only person responsible for these crimes, and that some of the financial losses caused by the commission of these offences were caused by the unknown masked male who aided and abetted the accused in the commission of these offences.

[82] The parties are agreed that this person has never been identified or charged with the commission of any offence. However, I do not see this submission as in any way standing in the way of the restitution order that I am prepared to make in this case. Indeed, it aptly illustrates only that the accused, who clearly knows the identity of this individual, has deliberately chosen to remain forever silent as to his identity. The accused is, of course, entitled to remain silent in this regard, as he apparently wishes, and save his friend from prosecution, but his chosen silence does not in any way prevent me from requiring him to provide some measure of financial re-imbursement for some of the predictable losses suffered by the commission of these offences.

3. The Term of Imprisonment

[83] In my view, the accused must be sentenced to a minimum of one year of imprisonment for each of the four victims that he forcibly confined in the law office on the afternoon of September 15, 2020. Further, these sentences must be served consecutively to each other, as the accused and his unknown associate tied up, threatened, and forcibly confined four different people that day – all of whom suffered the coincident anxiety and trauma from those shocking events. If these sentences are made concurrent, then all of these individual victims, namely, Qasim Ali, Sana Khan, Umair Manzoor and Qaisar Iqbal, are simply lumped together for purposes of sentencing, and the severity and gravity of these four “forcible confinement” offences, is needlessly and unrealistically minimized.

[84] In addition, in my view, the accused must receive an additional four-year term of imprisonment for the crime of “extortion” that the accused committed against Qasim Ali. This was clearly the main offence that was planned and executed by the accused (and his unknown associate). The men brandished firearms to aid in its commission, and the accused obtained, at least temporarily, legal relief from the proceedings lawfully taken in relation to his real estate property and approximately $1.75 million from the bank account of Mr. Ali. The possession of these assets by the accused was only temporary and theoretical, but that was always going to be the case – this offence had no realistic chance of ultimate success. Unfortunately, that did not minimize the trauma suffered by Mr. Ali and his work colleagues.

[85] I realize, of course, that there is no mandatory minimum sentence that would potentially require the imposition of such a sentence. I simply conclude that this is a fit and appropriate sentence to impose upon the accused in relation to this terrifying offence.

[86] Adding these consecutive sentences together results in the imposition of a total penitentiary sentence of eight years imprisonment. In my view such a sentence is not “unduly long or harsh, in violation of the principle articulated in s. 718.2 (c) of the Criminal Code. Rather, it seems to me that such a sentence is directly proportionate to the gravity of the terrible crimes committed by the accused, stressing the need to deter and denounce their commission, while not ignoring the personal circumstances of the accused and the need to ensure his ultimate rehabilitation. See, for example: R. v. Crawford, 2013 BCSC 2121, at paras. 21-34; varied: R. v. Brar, 2014 BCCA 175, [2014] B.C.J. No. 881; R. v. Carr, 2015 BCCA 293.

[87] I have declined to impose the somewhat longer sentence proposed by the Crown only to properly take into account the potential immigration consequences to the accused. Further, I have also declined to impose the much shorter three-year term of imprisonment proposed by defence counsel as, in my view, such a sentence would not proportionally address and reflect the gravity of the crimes committed by the accused, and would not reflect the need to deter and denounce these terrible offences. Indeed, in my opinion, this sentence is the shortest that can appropriately be imposed in this case, notwithstanding all of the mitigating personal circumstances of the accused.

[88] Of course, this total sentence should be effectively reduced by ten months, so that the accused is given fair and appropriate credit for the pre-sentence restrictions on his liberty. In order to accomplish this, I will reduce his consecutive prison sentence on the charge of extortion to one of just three years and two months imprisonment.

[89] This results in the imposition of a total penitentiary sentence of seven years and two months imprisonment. That is the total sentence of imprisonment that I now impose upon the accused.

G. Conclusion

[90] In the final result, the accused is hereby sentenced to one year imprisonment on each of the four charges of “forcible confinement,” which sentences will be served consecutively to each other. The accused is also sentenced to a consecutive sentence of three years and two months imprisonment on the charge of extortion, which sentence will also be served consecutively.

[91] When this total sentence, of seven years and two months imprisonment, is added to the ten months credit which I provide to the accused for all of the restrictions on his pre-sentence liberty, this results in a total effective sentence of eight years imprisonment – which is what I consider to be a fit and appropriate sentence of imprisonment for the accused for all of his offences.

[92] Of course, the accused will also be subject to the various ancillary sentencing orders that I have already made today, as part of these sentencing proceedings.

Kenneth L. Campbell J. Released: February 22, 2024