COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jiwa, 2012 ONCA 532

DATE: 20120808

DOCKET: C54085

Gillese, Pepall and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nadeem Jiwa

Appellant

Clayton Ruby and Nader Hasan, for the appellant

Michal Fairburn and Scott Latimer, for the respondent

Heard: May 23, 2012

On appeal from the sentence imposed on June 29, 2011 by Justice Michelle K. Fuerst of the Superior Court of Justice.

Gillese J.A.:

[1] On August 2, 2007, 43-year old Detective Constable Robert Plunkett was killed while carrying out his duties as a police officer. At the time of his death, he was married with three children, a valued member of the York Regional Police Special Services Unit and active in the community.

[2] Nadeem Jiwa was 19 years old at the time of the offence. He had no criminal record but was on bail at the time for airbag theft. He was found not guilty of the first degree murder of Detective Constable Plunkett, but guilty of manslaughter. He was sentenced to 12 years of imprisonment, followed by a 10-year driving prohibition.

[3] This appeal calls into question the fitness of that sentence.

Overview

[4] In August of 2007, Mr. Jiwa was on bail for airbag theft. One of the conditions of his bail was that he was to abide by the rules of his mother, who was his surety. One of those rules was a 1:00 a.m. curfew.

[5] From approximately 2:30 a.m. to just before 5:00 a.m. on August 2, 2007, Mr. Jiwa and a friend were under surveillance by members of the York Regional Police Special Services, including Detective Constable Plunkett, because the two men were suspected of stealing airbags from cars. The police officers were working in plainclothes and driving unmarked vehicles. They watched as Mr. Jiwa and his friend travelled through a residential neighbourhood stealing airbags. They also stole a gold-coloured Honda.

[6] Mr. Jiwa and his friend drove separately to Ascot Crescent. At shortly before 5:00 a.m. the police decided, primarily for public safety reasons, that the two men should be arrested.

[7] Detective Constable Plunkett radioed that he would assist the other arresting officers. As the other officers dealt with Mr. Jiwa’s friend, Detective Constable Plunkett approached the gold Honda yelling “police, police, police”. Mr. Jiwa put the car into reverse. Detective Constable Plunkett was caught in the crease of the open driver’s door. He had no choice but to cling to the car, with one hand on the top of the open door and the other on top of the car, as it sped backwards. He was crushed to death when the door of the car hit a tree. He fell to the ground.

[8] Mr. Jiwa continued to drive the car in reverse, coming to a stop only when the stolen vehicle he was driving was struck by another police vehicle. Although Mr. Jiwa attempted to flee on foot, he submitted to arrest after a chase by other police officers.

[9] Mr. Jiwa did not deny that he killed Detective Constable Plunkett but maintained at trial that it was an accident and that he did not know that Detective Constable was a police officer when he caused the car to drive backwards. The jury found him guilty of manslaughter.

[10] The sentencing judge found that Mr. Jiwa knew that he was being arrested by police officers, including Detective Constable Plunkett, and that he drove the car in reverse in order to avoid being arrested. She also found that Mr. Jiwa did not stop when Detective Constable Plunkett was crushed against the tree. I will refer to these findings collectively as the “findings of fact”.

[11] During the sentencing hearing, Crown counsel was permitted to play a video tribute to Detective Constable Plunkett. Defence counsel had agreed to the video being played.

[12] The Crown contended that a sentence of 12 to 14 years in jail should be imposed while the defence argued that five to seven years’ imprisonment was appropriate.

[13] Mr. Jiwa was sentenced to 12 years of imprisonment and a 10-year driving prohibition to commence after the expiration of his jail sentence.

[14] Mr. Jiwa seeks leave to appeal sentence. He acknowledges that manslaughter is a serious offence and the circumstances are tragic but argues that 12 years is too long, given that he was a youthful, first offender who has shown genuine remorse for his actions.

[15] For the reasons that follow, I would dismiss the appeal.

The Issues

[16] The appellant submits that the sentencing judge erred in:

1. making the findings of fact;

2. admitting the video tribute at the sentencing hearing;

3. her articulation and application of the sentencing principles applicable in manslaughter cases;

4. her application of the proportionality principle; and

5. imposing a 10-year driving prohibition.

The Findings of Fact

[17] The appellant submits that the sentencing judge made a palpable and overriding error in finding that Mr. Jiwa knew that Detective Constable Plunkett was a police officer and in finding that he knew Detective Constable Plunkett was injured when he continued driving after the collision. He also contends that the sentencing judge failed to explain why she disregarded the evidence favourable to Mr. Jiwa and that she significantly increased the sentence based on aggravating factors that had not been proved beyond a reasonable doubt.

[18] I see nothing in this ground of appeal. There is no basis on which to interfere with the sentencing judge’s findings of fact.

[19] The sentencing judge properly articulated and applied the relevant legal principles in concluding that this was a case in which she had to come to her own determination as to whether Mr. Jiwa knew that he was being arrested by the police and drove in an effort to resist arrest. The sentencing judge gave thoughtful, comprehensive reasons for her findings of fact. Those findings were fully available to her. In relation to the finding that Detective Constable Plunkett was a police officer, while it is correct that he and the other officers were in plain clothes, during the arrest they repeatedly yelled that they were police officers. They yelled this so loudly that a civilian heard them from inside her bedroom. The appellant’s friend acquiesced in the arrest so he clearly understood that they were police officers. The suggestion that Mr. Jiwa thought Detective Constable Plunkett was only “winded” after being smashed into a tree is ludicrous, in my view. As the driver of the vehicle, Mr. Jiwa must have appreciated the severity of the collision that crushed Detective Plunkett’s body between the tree and the car door. It is inconceivable that any driver could fail to appreciate the harm that would be caused by such a collision.

[20] At para. 46 of her reasons, the sentencing judge specifically states that she found the facts beyond a reasonable doubt. It is apparent from the careful manner in which the sentencing judge approached the evidence that she did precisely as she stated, that is, she found the facts beyond a reasonable doubt.

[21] To the extent that the appellant suggests that the sentencing judge erred by sentencing Mr. Jiwa as if he had been found guilty of manslaughter on the basis of the unlawful act of resisting arrest, I disagree. It is clear from her reasons that Mr. Jiwa was sentenced for unlawful act manslaughter on the basis of dangerous driving, with an aggravating factor being that he was intentionally resisting arrest at the time that he engaged in the dangerous driving. The sentencing judge made no error in considering, as an aggravating factor, that Mr. Jiwa drove dangerously in order to avoid arrest.

The Video Tribute

[22] The appellant submits that the sentencing judge erred by admitting the memorial video tribute to Detective Constable Plunkett at the sentencing hearings. The five-minute long video consisted of still photographs of Detective Constable Plunkett’s funeral set to music, including close-ups of teary-eyed police officers and photographs of Detective Plunkett’s grieving widow.

[23] The sentencing judge understood the video’s potential for prejudice. Prior to admitting it, she indicated that she would be guided by counsels’ positions on the matter, saying, “If [all counsel have] seen it and you’re confident that it is not inappropriate then I’ll be guided by your joint positions”. After some discussion, defence counsel agreed to the video being played.

[24] In her reasons for sentence, the sentencing judge expressly instructed herself “not to be guided by emotion” but, rather, to impose a just sentence in accordance with the principles of sentencing. As well, she expressly stated that she “ignored any victim impact information that exceeded permissible bounds”.

[25] The sentencing judge was properly cautious about receiving evidence or information that might be an attempt to use emotion to increase the length of the sentence. In light of defence counsel’s consent to its admission and as it is clear that the sentencing judge was not unduly swayed by the video, I would dismiss this ground of appeal.

The Sentencing Principles

[26] At para. 34 of her reasons, the sentencing judge said this:

In sentencing an offender for manslaughter, the principles of denunciation and deterrence, both general and specific, are paramount: see, R. v. Carrière, 2002 CanLII 41803 (ON CA), [2002] O. J. No. 1429 (C.A.); R. v. Costa, [1996] O.J. No. 299 (Gen. Div.). Rehabilitation cannot be ignored, particularly for a young first offender, but it assumes a subordinate role in manslaughter cases. Society must express, through the courts, its abhorrence of the criminal conduct involved in the taking of a life by an unlawful act.

[27] The appellant contends that these sentences are an incorrect statement of law and that the sentencing judge erred in relying on them. He says that there is neither a blanket rule that the principles of denunciation and deterrence are paramount in all manslaughter cases nor that the goal of rehabilitation must be subordinate to denunciation and deterrence in all manslaughter cases.

[28] I agree that there are no such blanket rules. However, I do not accept that the sentencing judge intended these statements to be a general rule for all manslaughter cases, nor do I view her as having treated them as such. Rather, the sentencing judge was saying that, in the circumstances of this case, denunciation and deterrence were paramount and rehabilitation was secondary.

[29] My view is based on two primary considerations, the first of which is para. 35 of the sentencing judge’s reasons. Para. 35 of the reasons reads as follows:

A diverse range of circumstances will found a conviction for manslaughter. Accordingly, while the maximum sentence is life imprisonment, there is wide variation in the range of sentence for this offence. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity: see, R. v. Carriere, above. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.

[30] In para. 35, the sentencing judge identifies the fact-specific and highly individualised task of a sentencing judge, one that reflects his or her assessment of the combined effect of the many variables inevitably at play when crafting a sentence. The sentencing judge concludes para. 35 with a reiteration of the need to consider all of the facts of the offence, the circumstances of the accused, and his or her moral blameworthiness.

[31] Paragraph 35 follows immediately after the impugned statements. Its recognition of the diverse range of circumstances that will found a conviction for manslaughter and the need to consider each case individually demonstrate that the sentencing judge did not intend the statements in para. 34 to amount to a general rule applying to all manslaughter cases. Rather, as I have said, para. 34 expresses the sentencing judge’s view of how to balance the competing variables at play in the case before her.

[32] My second reason for so concluding flows from the cases referred to by the sentencing judge: R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.) and R. v. Costa (1996), 30 W.C.B. (2d) 28 (Ont. Ct. (Gen. Div.)). Neither Carrière nor Costa stands for the general proposition that denunciation and deterrence are paramount in all manslaughter cases or that rehabilitation must always be subordinate to denunciation and deterrence in all manslaughter cases.

[33] In Carrière, after explaining why the facts led the court to view moral culpability in the case as very close to the murder end of the spectrum and why Mr. Carrière approached the “worst offender category”, this court stated at para. 18:

Having regard to the principles of sentencing ... and to the totality of the circumstances in this case, we conclude that the objectives of denunciation, deterrence and isolation must be given paramount consideration. Other considerations, such as rehabilitation cannot be ignored but must, in our view, assume a subordinate role. [Emphasis added.]

[34] By its terms, para. 18 makes it clear that this court was not creating a rule of general application to manslaughter cases. It was only after having due regard to the specific circumstances of that case that the court held that denunciation, deterrence and isolation were the paramount sentencing considerations.

[35] Like the present case, Costa was a case of a youthful, first offender. Mr. Costa had pleaded guilty to manslaughter. At para. 35 of his reasons for sentence, Watt J. reflects the need to consider each case on its own facts when balancing the competing interests at play in sentencing. He wrote:

There is, however, no standard sentence, for there is neither standard crime nor standard criminal. To be certain, there are various principles whose application governs the imposition of sentence in any case. Their application, however, does not always mandate the same result.

[36] The reasons for sentence in the present case are careful, detailed and thorough. They demonstrate the depth of knowledge and experience of this sentencing judge. As para. 35 of her reasons (set out above) makes clear, she was fully aware of the tremendous variation in the degree of responsibility among offenders found guilty of manslaughter. She also would have been fully aware that Carrière and Costa stood for the propositions quoted above and not for a general principle of law governing all manslaughter cases.

[37] Accordingly, I would dismiss this ground of appeal.

Proportionality

[38] The appellant submits that the sentencing judge erred in her application of the proportionality principle by failing to give sufficient weight to the role of rehabilitation in sentencing a youthful, first offender. He submits that a sentence of 12 years is inconsistent with the goal of rehabilitation and outside the range for analogous cases. He points to cases such as R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) as support for his submission that sentences for youthful first offenders must focus on specific deterrence and rehabilitation and not on general deterrence or denunciation.

[39] I do not share the appellant’s view of the caselaw.

[40] Priest was a case involving break-and-enter theft by a 19-year old. The sentencing judge found that general deterrence was the paramount consideration. In allowing the sentence appeal and reducing the sentence, Rosenberg J.A. on behalf of this court, held that the sentencing judge’s emphasis on general deterrence at the expense of rehabilitation in the context of a youthful first offender was an error in principle.

[41] However, as this court noted in R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 32, in Priest at pp. 294-95, Rosenberg J.A. was careful to exclude very serious offences and offences involving violence from the principle that sentences for youthful first offenders should emphasize individual deterrence and rehabilitation. In the present case, the appellant committed a very serious, violent crime.

[42] In my view, the sentencing judge committed no error in treating denunciation and deterrence as paramount sentencing goals in this case nor did she improperly subordinate the principle of rehabilitation. The fact that Detective Constable Plunkett was killed while in the line of duty is a seriously aggravating factor, one which the sentencing judge underlined by reciting the following passage from R. v. Phillips (1999), 1999 CanLII 2449 (ON CA), 138 C.C.C. (3d) 297, at para. 27,

Police officers carry out an essential and responsible role in society. In doing so they are often required to assume risks to their personal safety. Because of that, when a police officer is killed in the execution of duty, the community is understandably outraged. In imposing sentence, it is appropriate to reflect society’s revulsion for this aspect of the offence.

[43] Nor do I accept that the sentencing judge failed to give due consideration to the appellant’s rehabilitative potential. She gave full recognition to the fact that Mr. Jiwa was only 19 at the time of the offence and that he was a first offender. Far from ignoring or improperly discounting rehabilitation, she expressly set out the many positive aspects of Mr. Jiwa’s life that spoke to the matter of rehabilitation. She summarized them in para. 48 of her reasons, saying:

In mitigation, Mr. Jiwa was only 19 years old when he killed Detective Constable Plunkett. He has no prior criminal record. However, his life circumstances as they were at the time of the offence are unimpressive. Despite the advantages of a supportive and prosperous family, he failed to complete high school, had not worked at employment of consequence, and was not amenable to his parents’ discipline. It is to his credit that he has taken and passed two high school level courses while in custody. This demonstrates some degree of maturation, which is supported by the observations of Dr. Ismail, and is an indication of rehabilitative potential. Mr. Jiwa has very strong family and community support from individuals who are committed to assist him in integrating back into society. He expressed some degree of remorse when he apologized to Detective Constable Plunkett’s family in court. I consider as well that the killing of Detective Constable Plunkett was what is sometimes termed an “involuntary” manslaughter, meaning an unlawful killing not accompanied by the state of mind to constitute it murder: see, R. v. Costa, above.

[44] At the same time, however, she recognized the factors that seriously aggravate the offence and elevate Mr. Jiwa’s moral blameworthiness. In addition to the seriously aggravating factor that Detective Constable Plunkett was killed during the course of duty, on the facts as found by the sentencing judge, Mr. Jiwa knew that he was dealing with the police but, intent on resisting arrest, he drove the stolen car in a dangerous way that led to Detective Constable Plunkett being crushed to death.

[45] In addition, at para. 47 of her reasons, the sentencing judge lists the following additional aggravating factors:

a. At the time of the offence, Mr. Jiwa was driving a stolen car, having spent several hours engaged in criminal activity, stealing airbags;

b. Mr. Jiwa was on bail for allegations of similar activity, albeit not convicted of it;

c. Mr. Jiwa’s recognizance of bail specified that he was to obey the rules set by his mother as his surety. One of those rules was a 1:00 a.m. curfew. He demonstrated a flagrant disregard for his mother’s discipline and so for the underlying court order;

d. After Detective Constable Plunkett was crushed between the tree and the car door, Mr. Jiwa did not stop to come to his aid. He carried on until Detective Constable Shaw deliberately rammed the Honda;

e. Mr. Jiwa then tried to flee the area on foot, surrendering to the police only when it was clear that he had no route of escape; and,

f. Detective Constable Plunkett’s death has had a devastating impact on his family, and on his colleagues who were with him that night.

[46] As all counsel conceded at the sentencing hearing, there are no cases that match the circumstances of this one. The sentencing judge was left to draw on the principles of sentencing and weigh the facts that she had found against those principles. As an appellate court, we must defer to the sentencing decision unless convinced that there is an error in principle or that the sentence is demonstrably unfit. As Doherty J.A. noted at para. 72 of R. v. Ramage 2010 ONCA 488, (2010), 257 C.C.C. (3d) 261 (Ont. C.A.):

The sentencing judge represents and speaks for the community that has suffered the consequences of the crime. He or she is much better placed to determine the sentence needed to adequately protect the community than is an appellate court sitting at a distant place often years removed from the relevant events.

[47] As I have explained, the sentencing judge approached the task of sentencing properly and her reasons reveal no error in principle or law. While the sentence is at the very high end of the range for a youthful, first offender and other judges might have imposed a shorter sentence, I cannot say that it is demonstrably unfit.

The Driving Prohibition

[48] The appellant contends that the imposition of a 10-year driving prohibition to commence at the end of Mr. Jiwa’s jail sentence was excessive and unnecessary. He argues that the lengthy driving prohibition will unduly impede the appellant’s reintegration into society because it will limit his job and educational opportunities on release.

[49] While it would have been preferable had the sentencing judge given reasons for imposing the driving prohibition, I would not give effect to this ground of appeal. It is apparent on a full reading of the reasons that the sentencing judge imposed the driving prohibition to protect the public. At a time when Mr. Jiwa was on bail for stealing airbags, he breached that bail, and killed a police officer while driving excessively fast and dangerously. In the context of the sentence as a whole, the driving prohibition is not unfit.

DISPOSITION

[50] Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal.

“E.E. Gillese J.A.”

“I agree E. Ducharme J.A.”

Pepall J.A. (Concurring):

[51] I have read the reasons of my colleague, Gillese J.A., and agree with her that the sentence imposed was fit and that the appeal should therefore be dismissed. I also agree with her reasons on the first, second, fourth and fifth issues raised by the appellant on the appeal, but disagree with her reasoning on the third issue, namely, the sentencing judge’s articulation of the sentencing principles.

[52] As my colleague indicates,R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.) and R. v. Costa (1996), 30 W.C.B. (2d) 28 (Ont. Ct. (Gen. Div.)) do not stand for the propositions advanced by the sentencing judge in paragraph 34 of her decision and reproduced in paragraph 26 of these reasons. Unlike my colleague, however, it is my view that the sentencing judge erred in paragraph 34 of her reasons in articulating the governing principles in sentencing an offender for manslaughter. As my colleague states at paragraph 32: “Neither Carrière nor Costa stands for the general proposition that denunciation and deterrence are paramount in all manslaughter cases or that rehabilitation must always be subordinate to denunciation and deterrence in all manslaughter cases.” I agree. However, with respect, I do not read paragraph 34 of the sentencing judge’s reasons as being consistent with these principles.

[53] Furthermore, in my view, paragraph 35 of the sentencing judge’s reasons does not serve to qualify the incorrect statements of principle at paragraph 34 of the reasons. Firstly, treating denunciation and deterrence as paramount and rehabilitation as subordinate is not necessarily inconsistent with a consideration of all the facts of the offence, the circumstances of the accused and his moral blameworthiness as described in paragraph 35 of the sentencing judge’s reasons. Secondly, reasons for decision should speak for themselves.

[54] Having said that, in the circumstances of this case, I am of the view that denunciation and deterrence should be treated as paramount and rehabilitation as subordinate. Furthermore, I agree with, and adopt, the sentencing judge’s description of the aggravating and mitigating factors applicable in this case.

[55] This was a very serious crime. Detective Plunkett was killed in the line of duty. His family and colleagues have been devastated by his death. I recognize that Mr. Jiwa was only 19 years of age at the time of the offence, had no previous record, showed some remorse and the killing was involuntary. Nonetheless, the offence was committed while he was on bail for pending air bag theft charges; he was driving a stolen vehicle having spent several hours stealing air bags; and he was in violation of his curfew. The sentencing judge found, as she was entitled to do, that Mr. Jiwa knew he was being arrested by police officers including Detective Constable Plunkett, drove in an effort to resist arrest and did not come to Detective Constable Plunkett’s aid. Taken together, these factors warrant a 12 year sentence of imprisonment. Accordingly, I conclude that the sentence was fit. I, too, therefore would dismiss the appeal.

Released:

“EEG” “S.E. Pepall J.A.”

“AUG 08 2012”