Court of Appeal for Ontario

Date: 2021-11-19 Docket: C68748

Before: Hoy, Coroza and Sossin JJ.A.

Between: Her Majesty the Queen, Respondent and Ali Elenezi, Appellant

Counsel: Ewan Lyttle, for the appellant Hannah Freeman, for the respondent

Heard and released orally: November 18, 2021

On appeal from the sentence imposed on December 12, 2018 by Justice Hugh R. McLean of the Superior Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal his sentence for contempt of court.

[2] He was part of a group of men who concocted a plan to lure a victim to a parking lot to assault and kidnap him as retribution for providing information to the Ottawa Police. When the plan was carried out, the 18-year-old victim attempted to flee. He was shot twice, causing his death.

[3] The appellant accepted a plea deal for manslaughter. At his guilty plea, he affirmed that the agreed statement of fact, which included that one of two men – Nedeljko Borozan and Mohamed Mohamed – was the shooter, was true and complete. The appellant was sentenced to 12 years’ imprisonment.

[4] Mr. Borozan and Mr. Mohamed were subsequently tried before a jury for first degree murder and kidnapping. After another intended Crown witness from the group refused to testify, the trial judge signed orders requiring the appellant and the other members of the group who, like the appellant, had pled guilty, to testify. The appellant appeared and, having received legal advice, refused to be sworn or testify at their trial. He said he was fearful of the consequences for himself and his family if he testified. At the time he refused to testify, he was 20 years of age. Both accused were subsequently acquitted.

[5] The appellant was found guilty of contempt of court and sentenced to three years, consecutive to his 12-year sentence for manslaughter.

[6] An appellate court can only intervene to vary a sentence if a sentencing judge made an error in principle that had an impact on the sentence or the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[7] The appellant argues that the sentencing judge erred in principle by failing to consider three relevant factors – his youth, his rehabilitative prospects, and the totality principle – and that the sentencing judge’s failure to do so impacted on the sentence imposed. He further argues that the sentencing judge gave unreasonable weight to his refusal to testify. He submits that his sentence should be reduced from three years to one year.

[8] We are not persuaded that there is any basis for this court to vary the sentence imposed.

[9] The sentencing judge delivered brief oral reasons following lengthy submissions by counsel. The appellant’s youth and rehabilitative prospects were a focus of the sentencing hearing. The sentencing judge acknowledged the arguments made about the appellant’s youth and rehabilitative prospects. He did not fail to consider them. Rather, he concluded that denunciation must nonetheless be the primary principle, despite the appellant’s youth and rehabilitative prospects.

[10] The sentencing judge also considered the totality principle and the need to avoid a crushing sentence. He found that a sentence of three years was required to give effect to the need to denounce the appellant’s entirely separate offence of contempt of court.

[11] The trial judge did not give unreasonable weight to the appellant’s refusal to testify. The sentencing judge – who was also the judge at the murder trial – appreciated the context surrounding the appellant’s refusal to be sworn. But he concluded that notwithstanding the appellant’s concerns, the court “must bring home a denunciatory sentence to indicate to persons, being the accused and likeminded individuals, that this kind of behaviour will simply not be tolerated.”

[12] As this court observed in R. v. Yegin, 2010 ONCA 238, the justice system’s response to a refusal to testify “must be firm and direct – significant jail terms above and beyond whatever other period of incarceration the individual is, or might be, facing for his own participation in the relevant events must be imposed.” The sentence imposed was consistent both with the jurisprudence and the actual sentences imposed for other youthful offenders. In R. v. McLellan, 2016 ONSC 3397, sentences of 30 months were imposed on youthful offenders for refusing to testify in a murder trial. And in R v. Omar, 2017 ONSC 1833, aff’d 2018 ONCA 599, leave to appeal refused, [2018] S.C.C.A. No. 398, a three-year sentence for a youthful offender was upheld by this court.

[13] Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

“Alexandra Hoy J.A.”

“S. Coroza J.A.”

“Sossin J.A.”