COURT FILE No. Halton Region, Central West Region 09-3686
Citation: R. v. Langer, 2013 ONCJ 118
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ANGAR LANGER
Before Justice Alan D. Cooper
Heard on September 27 & November 28, 2012
Reasons for Judgment released on February 20, 2013
Monica A. MacKenzie for the Crown
Howard A. Goldkind for the accused Angar Langer
REASONS FOR SENTENCE - ACCESSORY AFTER THE FACT TO AGGRAVATED ASSAULT
Case History
[1] On May 3, 2012, Angar Langer was arraigned on a charge of being an accessory after the fact to the murder of Christopher Stairs, by assisting Nazir Akbari for the purpose of enabling Nazir Akbari to escape. Mr. Akbari was arraigned on a charge of second degree murder in relation to Christopher Stairs. On consent, both informations and defendants were heard together before this court on a preliminary hearing.
[2] Mr. Akbari was committed for trial on his charge on September 27, 2012, and on the same day Mr. Langer pled guilty to a lesser charge, which reads as follows:
"On or about the 22nd of January 2011 at the Town of Oakville, knowing that Nazir Akbari had been a party to the offence of aggravated assault, did assist Nazir Akbari for the purpose of enabling Nazir Akbari to esacpe, to wit by disposing of his knife, contrary to section 463(b) of the Criminal Code of Canada."
[3] Submissions on sentence were heard on November 28, 2012, and the matter was adjourned to February 20, 2013 for the imposition of sentence.
Events Leading to Criminal Charges
[4] Late on the evening of January 22, 2011, at the intersection of Kerr and John Streets in Oakville, Christopher Stairs and his friend Adam Viteese had just left a nearby house party and were on their way to a bar. At the same time and location, four friends were passing by on their way to the home of Nazir Akbari. These four were Mr. Akbari, Mr. Langer, Emram Mahmood, and Kevin McLean. Words were exchanged between the two groups, who were not previously known to each other. The evidence is not clear as to what caused this exchange. This led to a physical confrontation, culminating in Christopher Stairs being stabbed to death by a knife brandished by Mr. Akbari.
[5] After the stabbing, the four friends ran west on John Street, and then stopped at a Fortinos grocery plaza. According to the evidence of Kevin McLean, who was called as a Crown witness, Mr. Langer told Mr. Akbari to give him his knife. Mr. Langer then threw this knife and another item on the roof of a Liquidation World store. The police later recovered these objects, and the second one was a knife belonging to Mr. Langer. From the evidence of Kevin McLean and Emram Mahmood, it was learned that Mr. Akbari and Mr. Langer, on the evening in question, were attempting to rob a drug dealer known to them, and this is the probable explanation as to why each carried a knife. They were unable to find the dealer, so the robbery never took place.
[6] All four friends were not aware that Mr. Stairs had died until they heard it on the news. In the morning, Kevin McLean's father drove his son, Mr. Akbari, and Mr. Mahmood to the police station. Mr. Langer's older sister Zerghouna took him there. At this point in time, the police had no suspects. All four gave statements.
[7] Mr. Langer, in his statement, dated January 23, 2011, said he threw Akbari's knife away near a Mac's Milk store, but did not remember where he threw it. He never mentioned throwing away a second knife, or that it was his. He was interviewed again on January 26, 2011, after the police located the two knives on the roof of the Liquidation World store. He identified Akbari's knife in the photographs shown to him, but denied any knowledge concerning the second knife. It is clear that he lied to the police about his knife and about where he had thrown the knives away.
The Crown Position on Sentence
[8] The defendant has no criminal record, but the Crown is requesting a jail sentence of nine to twelve months, thirty six months probation with conditions, and certain ancillary orders. It is opposed to a conditional sentence. A casebook of authorites on sentencing was submitted. The Crown accepted a plea of guilty to the lesser charge of accessory after the fact to aggravated assault, as opposed to murder, because Langer was not aware of Chrisopher Stairs' death at the time he disposed of the two knives.
The Defence Position on Sentence
[9] The defence is seeking a conditional sentence.
Applicable Criminal Code Provisions
[10] The penaly for aggravated assault is imprisonment for a term not exceeding fourteen years. [See Criminal Code section 268 (2).] Section 463 (b) provides that "every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable." Therefore, the maximum sentence facing Mr. Langer is a term of imprisonment not exceeding seven years.
Applicable Case Law
[11] Some of the cases in the Crown's Book of Authorities deal with the offence of being an accessory after the fact to murder, for which the penalty is a maximum term of imprisonment for fourteen years [See section 463 (a) of the Criminal Code]. Other cases relate to the charge of obstructing justice, for which the maximum jail sentence is ten years [See section 139 (2)]. As mentioned earlier, the charge against Mr. Langer carries a maximum sentence of seven years. All three offences pertain to an interference with the administration of justice.
[12] In R. v. Wisdom, [1992] O,J. No. 3110 (O.C.J.Gen. Div.), Watt J. as he then was, enunciated the relevant principles of sentencing in this area:
- The Applicable Principles
26 It is textbook law that the fundamental purpose of any sentence is the protection of society. Due regard must be had to ensure that a just balance is achieved amongst the several factors that inform the discretion of the sentencing judge. In some cases, as for example non-violent offences by first or youthful offenders, it may be that rehabilitation will predominate. In others, specific deterrence will assume the most significant role. Yet others will witness the over-riding influence of general deterrence.
27 Accessoryship after the fact to a crime is an offence which constitutes an interference with the administration of justice. An offence has been committed by a principal offender, in this case the crime of murder. It is the purpose of the accessory, as it was of this accused, to enable, indeed to facilitate, the principal offender to escape detection and/or punishment for his or her criminal conduct. By the means adopted, whatever they may be, the accessory interferes with the investigation of crime and the detection of offenders. Serious crimes may go unsolved and dangerous criminals left at liberty only to re-offend. The resourceful accessory stifles the investigation and deflects attention from the true principal, as much as the suborned witness' perjury seeks to avoid successful prosecution. The due administration of justice is defeated in the event of success, as much in the one case as it is in the other.
28 Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.
29 As it would appear to me, it is of the utmost public importance that all who are knowingly in touch with criminals and who might be minded, for whatever reason, to offer or furnish their assistance, ought to be alive to and fully cognizant of the fact that should they receive, comfort or assist them in order to enable the or a principal to escape, then they, the accessories, themselves run a substantial risk of losing their own liberty for a very significant period of time. In this respect, see, for example, R. v. Kerrigan; R. v. Panayiotou (1972) 57 Cr. App. R. 269 (CA-CD). It is a fortiori where the offence of the principal is itself grave. See, R. v. Morgan (1971) 56 Cr. App. R. 181 (CA-CD).
30 The factor or principle of superordinate importance in cases such as at present, in my respectful view, is that of general deterrence. The courts, whose task it is to ensure the due administration of justice, must devoutly set their face against and display their denunciation of any conduct, whether during the investigation or upon the trial of alleged offenders, that seeks to or does interfere with it. Put shortly, we shall brook no interference, actual or attempted, with the proper investigation of crime, as well the proper trial of alleged offenders. Those who set out with such a purpose shall be punished, and severely.
• 3.
The Relevant Factors
31 There would not appear a significant body of authority to establish the governing principles, nor mark the appropriate range of sentence for a case such as at present. To the extent that there is any common ground ascertainable amongst the scanty precedent available, it would appear to be that, generally, such conduct attracts a sentence of incarceration. To be sure, the range of sentence imposed varies considerably, as might be expected in the case of any offence where maximum punishment is imprisonment for life. In exceptional cases, as for example, R. v. Turpin, an unreported decision of Chadwick, J. rendered February 7, 1990, the passing of sentence may be suspended and an accused ordered to comply with the provisions of a probation order.
[13] It should be noted that R. v. Wisdom was decided prior to the introduction of conditional sentences. The charge was one of being an accessory after the fact to murder. Although the defendant had no criminal record he was engaged in the drug deal in question, and encouraged retaliation against the deceased for short-weighting the drugs he sold. He cleaned up the room in which the murder took place and moved the body afterwards. A sentence of five years was imposed.
[14] After a review of the sentencing case law in this area, A. J. O'Marra J., in R. v. John, 2011 ONSC 3313, [2011] O. J. No. 2465 (Sup. C.J.), made the following observations:
62 The sentences imposed range from conditional sentence to 5 years imprisonment. The widely divergent range of penalty is not unexpected given the vastly different circumstances of the offences, the number of offences dealt with in each case and the personal characteristics of each offender. As noted above, the appropriate sentence in each case depends very much on its own facts and individual characteristics of the offender.
63 While the cases do not assist with respect to the range of the appropriate sentence in this instance, they are helpful in having identified the governing principles the court should consider where the crime is one that is directed at trying to undermine the administration of justice, as in this case - deterrence and denunciation or repudiation of the offence.
[15] A conditional sentence was imposed in R. v. Nordman, [2004] B.C.J. No. 2057 (B.C.S.C.). In that case, the defendant obstructed justice by disposing of a knife used by a friend to stab a man to death. Such a sentence was also given by H. E. Perkins-McVey J. in R. v. Webbe, [2012] O.J. No. 4999 (O.C.J.).
Evidence from the Sentencing Hearing
[16] Members of Christopher Stairs family testified and submitted victim impact statements. The loss of Christopher is devastating to this family, and their collective love for him is very great. They would like Mr. Langer experience more jail time than the twelve days he has spent in pretrial detention.
[17] The Pre-Sentence Report indicates that the defendant was eighteen years old at the time of the commission of the offence. He is presently nineteen, and has no prior criminal record. He was born in Afghanistan but came to Canada as a young child. He is the youngest of six children. His grade twelve year was interrupted by these criminal proceedings and he needs one credit to get his high school diploma. He is working on this at home and hopes to attend university as soon as possible, if he is not in jail.
[18] At the sentencing hearing, a former teacher of his at St. Thomas Aquinas High School in Oakville testified favourably on his behalf, and other evidence of good character was presented. Two of his sisters, Muska and Zerghouna, gave evidence as well. Muska is twenty three years old and is a McMaster University student. Zerghouna is thirty one years old and a graduate of Sheridan College and York University.
[19] Zerghouna, for various reasons, is now the head of the family, and it was she who took her brother to the police station immediately on finding out what had taken place. She described the defendant as being very smart but not fulfilling his potential. Apparently, the time he has spent in pretrial detention has had a salutary effect on him and he now wants to make something out of his life. He has obeyed all of his strict bail conditons and the rules of the home.
Analysis
[20] Balancing everything referred to above, it is my view that a conditional sentence and probation is the appropriate sentence in this case. Mr. Langer's age, lack of prior criminal record, and the particular facts of this case are not markedly different from cases cited above in which conditional sentences have been granted in similar circumstances.
[21] It is easy to understand why the Stairs family wants the defendant to be further incarcerated. However, if this tragic incident has had the effect of turning Mr. Langer's life around, then Christopher Stairs' death will not have been in vain. Further jail will not bring him back to life.
Conclusion
[22] Mr. Langer will be given credit for the twelve days he spent in pretrial custody. A conditional sentence and probation, and ancillary orders will be imposed, after I hear submissions of counsel.
Released: February 20, 2013
Signed: "Justice Alan D. Cooper"