Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200224 DOCKET: C66837

Hourigan, Miller and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Benham Yaali Appellant

Counsel: Howard L. Krongold, for the appellant Hannah Freeman, for the respondent

Heard and released orally: February 21, 2020

On appeal from the sentence imposed by Justice Lynn D. Ratushny of the Superior Court of Justice on June 5, 2018 with reasons reported at 2018 ONSC 3045.

Reasons for Decision

[1] Behnam Yaali seeks leave to appeal the sentence of 13 years imposed on him by the sentencing judge after his guilty plea to the offence of manslaughter.

[2] The basic facts are that the appellant was in a dispute with another male over the appellant’s former girlfriend. Both the appellant and the other male possessed firearms. The other male went searching for the appellant, armed with his firearm, but did not find him. In response, the appellant, armed with his firearm, went to his former girlfriend’s home in search of the other male.

[3] Once at the home, the appellant demanded to see his former girlfriend. She came to the door with the other male behind her. The appellant could see that the other male was armed. The appellant fired numerous shots, two of which struck his former girlfriend causing her death.

[4] The appellant complains that the sentencing judge made two errors in her sentencing decision. One was that she considered his possession of a handgun as an aggravating factor and the other was that she failed to properly take into account the element of provocation that arose from the earlier animosity emanating from the other male.

[5] We begin by noting the principle laid down in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.”

[6] The appellant has not satisfied us that the sentencing judge made any error in principle nor does he suggest that the sentence is demonstrably unfit. The sentencing judge did not err in considering the circumstances surrounding the shooting, including the fact that the appellant came to the home armed with a gun and then fired numerous shots in a confined space: see R. v. Araya, 2015 ONCA 854, at para. 26. It is also clear that the sentencing judge understood that the actions of the other male led, to some degree, to the ultimate event, but she also properly noted that the appellant could have taken other steps than deciding to confront the other male in the manner that he did.

[7] Lacasse, at para. 49, cautions appellate courts that the fact that a sentencing judge weighs relevant factors differently that the appellate court might have done, is not a basis upon which the appellate court is entitled to interfere with the sentence. With respect, that is essentially what the appellant invites us to do.

[8] Leave to appeal sentence is granted but the appeal is dismissed, save for the setting aside of the victim impact surcharge.

“C.W. Hourigan J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”