Ontario Court of Justice

Date: 2024 07 10 Court File No.: 3111-998-22-31102266-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

Ameen Jazei

Before Justice A. R. Mackay

Sentencing submissions heard on April 5, 2024 Oral reasons for Judgment on April 23, 2024 Written reasons for Judgment released on July 10, 2024

Counsel: Thomas McCann, for the Crown Josephine Baldassi, for the accused Ameen Jazei

MACKAY J.:

[1] I sentenced Mr. Jazei on April 23, 2024. These are the written reasons for the sentence imposed.

Circumstance of the offence

[2] I found Mr. Jazei guilty of kidnapping and assault on December 11, 2023. The facts were set out in that judgment. The following is a brief summary of the facts. Mr. Jazei and two other culprits enlisted Mr. Shakir to lure the victim, Durgam Hussain into a vehicle. Mr. Jazei and the two unknown culprits had their faces concealed. Once Mr. Hussain was in the vehicle an imitation firearm was put to his head and he was repeatedly struck by the three men. Mr. Hussain was driven a short distance away where he was taken out of the vehicle at which time he was kicked and punched for approximately a minute by Mr. Jazei and the other two culprits. During the attack Mr. Hussain lay on the ground curled up with his hand wrapped around his head to protect himself. Mr. Jazei, Mr. Shakir and the other men then drove off and left Mr. Hussain behind. Mr. Hussain was able to walk to a gas station and call his sister to pick him up. Mr. Hussain did not recognize his attackers. Mr. Shakir provided evidence establishing that Mr. Jazei was the principal participant in the offences.

[3] Mr. Hussain did not sustain any significant physical injuries. He suffered abrasions and bruises.

[4] The only possible motive for the kidnapping and assault was that Mr. Hussain apparently had said something disrespectful about Mr. Jazei’s sisters.

Position of the Parties

[5] The Crown, Mr. McCann seeks 3.5 years in the penitentiary. Ms. Baldassi argues that Mr. Jazei should receive a three-month jail sentence for the assault and a 2-year conditional sentence for the forcible confinement.

Victim Impact

[6] Mr. Hussain did not provide a victim impact statement. He knew Mr. Jazei from the Mosque and I got the impression that Mr. Hussain did not want to further Mr. Jazei’s jeopardy. Clearly though it was a shocking and traumatic event.

Circumstances of the Offender

[7] Mr. Jazei committed the offences less than three months after he turned 18. He was born on March 22, 2004, and the offence took place on June 10, 2022. Mr. Jazei is now 20 years old. Mr. Jazei enjoys a close relationship with is mother and three sisters. His older sisters are just one and two years older than him. He also has a younger sister who is 7 years old. His older sisters advised that their brother is loving and respectful and that they have not known him to have issues with anger. His father has not spoken to him since November 2022. However, his father, Majeed Jazei did write a letter supporting his son.

[8] Most of the information about Mr. Jazei came from his Pre-Sentence report. He was frank with the author in describing some of the trouble he got into as a youth. He has not tried alcohol or used illicit substances. However, he does smoke marijuana.

[9] Mr. Jazei advised that he owned a construction business for approximately three years, and he worked as a landscaper. He would like to finish high school, he has only a grade 10 education. Eventually he would like to get into the real estate business.

[10] Mr. Jazei has ADHD and believes that he suffers from post traumatic stress disorder. The PTSD resulted from having his home shot at, he was also a victim of a shooting subsequent to the offence before the court.

[11] At the time of the offence Mr. Jazei did not have a criminal record.

[12] Medical records of the jail were introduced, counsel did not make many submissions concerning them. They were difficult to read but what I could see mentioned frequently is that Mr. Jazei was suffering pain in his spin where he was shot and that he suffered from PTSD. He also asked for medication to help him sleep. There was also a letter from a Dr. Shedietzky advising that a radiography of the defendant’s chest showed that he had a metallic foreign body within the posterior chest wall at the level of the mid- thoracic spine. Within the records are several requests from Mr. Jazei to see a doctor for his spinal pain.

[13] Mr. Jazei completed several programs while at the Toronto South Detention Centre which included the following: A Black employment support program, A music business program where he obtained an education credit; A program entitled Amadeusz confirmed that Mr. Jazei is on the waiting list to complete credits towards his Secondary school diploma; A problem solving men’s educational life skills session; He was also taking a literacy course with “PTP” adult literacy program.

[14] I received several character reference letters from his family, including his father and a family friend. All spoke very highly of Mr. Jazei. His family confirmed that he was raised with strong moral values in a loving home. What is missing from the letters is what happened to cause Mr. Jazei to commit the crimes before the court. However, his family did refer to the fact that his home was shot at. After the charges before the court, he himself was also shot. I was impressed by the fact that everyone who wrote a letter committed to supporting Mr. Jazei upon his release. His older sisters and family friend have already planned the various ways to assist him reintegrate positively in the community. While Mr. Jazei did not appear to express any remorse to the court for the harm he caused Mr. Hussain, his mother, Ala Aljanabi wrote: “Coming from Iraq where there is so much senseless violence, I do not condone this at all. This is not the person I raised, and I have spoken to him many times and he is deeply sorry for the consequences of his actions that is hurt and harm to Mr. [Hussain], the community and our own family”.

Legal Principles and Analysis

[15] The determination of a just and appropriate sentence is a balancing exercise between the various criteria listed in sections 718, 718.1 and 718.2 of the Criminal Code, R.S.C., 1985, c. C-46. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society.

[16] The fundamental principle of sentencing is "proportionality", namely, that the sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender", as set out in s. 718.1. This principle is central to the sentencing process as a sentence must be individualized to an offender.

[17] The primary objectives in sentencing for kidnapping is denunciation, deterrence, and the protection of the public. However, given the youth of Mr. Jazei, his desire to better himself while in custody, the significant support he has in the community, I also consider rehabilitation to be an important factor. The principle of restraint, is another important sentencing principle which requires a sentencing judge to impose a term of imprisonment only if necessary and for as short a period as is necessary to meet the relevant sentencing objectives. See R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 31–35.

Aggravating and Mitigating Factors

[18] In arriving at an appropriate sentence, I must consider aggravating and mitigating circumstances with respect to the offender and with respect to the offence. See Section 718.2 of the Criminal Code.

[19] The aggravating factors are many and include the following: an imitation firearm was used in the kidnapping. Mr. Jazei participated in a group attack on Mr. Hussain. Mr. Hussain thought Mr. Jazei was part of his community from the Mosque. In addition, he enlisted or forced Mr. Shakir who was a good friend of the victims to carry out the kidnapping and assault. Mr. Shakir and Mr. Hussain as a result of the incident are no longer friends. No doubt Mr. Hussain’s trust in his community and his friends was shaken.

[20] Mitigating factors include that Mr. Jazei was had just turned 18 at the time of the offence; that he has a lot of family support and support in the community. The offence represents his first adult conviction. Ms. Baldassi advised that subsequent to his conviction on these charges, he plead guilty to a firearm related offence, and it is anticipated that he will receive 5 years for those charges.

[21] Mr. Jazei has convictions as a youth for theft of motor vehicles in 2021.

[22] Mr. Jazei wrote a letter in which he stated that while in jail he had to think about his mistakes, and he spoke about how he wanted to do better and further his education. His letter than focused on the terrible conditions at the jail and the lockdowns he had endured. He witnessed a stabbing in the jail and saw a man die of an overdose. He did not however say that he had remorse for what he had done to Mr. Hussain.

The Range for Kidnapping

[23] There is a broad range of sentences depending on the number of aggravating factors and the accused’s participation in the offence. The low end of the range for violent kidnappings where the forcible confinement is for a lengthy period of time is between 6 to 10-years’ incarceration. For a good review of cases at the more serious end of the range see R. v. Siddiqui, 2019 ONCJ 603. A minimal role and mitigating circumstances may, exceptionally bring the sentence below this range. The Crown provided a number of cases where the range spanned 3 to 5 years. In one very exceptional case provided by the defence, the court imposed a conditional sentence where the accused’s role involved bringing food and supplies to the kidnapper and the victim. See R. v. Levy, 2024 ONSC 1454. She was the girlfriend of one of the perpetrators.

[24] In R. v. Crawford, The British Columbia Court of Appeal identified criteria that are indicative of the gravity of the offence of kidnapping. These include the level of planning, whether there is a ransom demand, the length of the confinement, the use of violence or threats, the use of weapons, any gang involvement, and the circumstances in which the kidnapping ends. See R. v. Brar (Crawford), 2014 BCCA 175, at para 28.

[25] In many cases it is difficult, if not impossible to find a similar factual situation. Almost all of the cases provided included facts which were much more egregious than the case before me.

The Crown’s Cases

[26] In R. v. Hardy-Fox, 2022 ONSC 2786, the accused assisted in a kidnapping that resulted in the murder of the victim. The accused’s role was to drive the kidnappers to the victim and drive them back home after the victim was killed. The victim was kidnapped because he owed drugs dealers money. He received a sentence of 44 months for the kidnapping and a 2-year concurrent sentence for being an accessory after the fact, less pre-trial custody.

[27] In R v. Ho, the accused plead guilty to one count of forcible confinement. Two victims were duct taped, hogtied, and often kept under a blanket in secluded places. The victims were eventually released. The accused came late to the kidnapping plan. He received a sentenced of 4 years. The decision did not set out the reason for the kidnapping, but it spoke about other victims generally who have been held for ransom.

[28] In R v. Nguyen, 2010 BCSC 970, two victims were kidnapped by the accused and three other men. They were told they would be killed unless they could raise a ransom of $100,000. The victims were held in a van for 2 or 3 hours, the male victim was threatened at knifepoint, beaten, and extorted with escalating ransom demands. It was believed that the beating was in retribution for a disrespectful email sent by the male victim. The victims were eventually released in a secluded area following a further beating of the male complainant. The victims described physical and emotional trauma as a result of the incident. Mr. Nguyen was 21 and had a difficult upbringing due to cultural differences and his mother’s drug addiction. He had no criminal record. He received a global sentence of 4 years.

[29] In R v. Crawford, 2014 BCCA 175, the accused was one of five men that participated in the kidnapping and extortion of the victim. The victim had agreed to launder $400,000 but the transaction was aborted. He was taken in a vehicle and then threatened with a taser, masked and handcuffed. He was then taken to an apartment where he was fastened to a chair and threatened at gunpoint. When he agreed to recover some of the funds, he was released. The accused was 44 years old. He had a prior conviction for impaired driving. The trial judge found that Mr. Crawford played a less significant role as only being involved in the initial kidnapping and sentenced him to 3.5 years. On appeal, the sentence was increased to 5 years.

[30] In R v. Dillon, 2017 SKCA 20, the victim was taken into a vehicle, blindfolded, cut with a knife, and driven around. While Mr. Dillon did not take part in the cutting, he was present when another used a knife to carve initials and dates on the leg and back of the victim. Mr. Dillon, an Aboriginal offender, was the driver of the vehicle. He was sentenced to 3 years. The accused appealed and the sentence was upheld.

Defence Cases

[31] Counsel provided a number of sentencing cases where the charge was assault, assault bodily and robbery. Ms. Baldassi provided only two cases dealing with kidnapping. While all were helpful, I will focus on the cases I found most relevant.

[32] In R v. Levy 2024 ONSC 1454, Ms. Wiseman was co-accused with Mr. Levy and plead guilty to one count of kidnapping. The victim was an international student studying at the University of Toronto, was kidnapped, and held at a home for 13 days while his kidnappers attempted to obtain ransom money from his parents. Ms. Wiseman’s boyfriend was one of the main perpetrators. Her role consisted of going shopping with the other participants and bringing back supplies for the kidnappers and the victim. She was at the house every day and smoked marijuana, drank alcohol and socialized with the others who were present. The victim was severely traumatized by the offence. Ms. Wiseman has been the victim of domestic and sexual violence. She had two children aged 10 and 8 years old. She suffered from a number of diagnoses which included major depressive disorder and PTSD. After a detailed review of the caselaw Justice Forestall imposed a conditional sentence of 22 months followed by a period of probation. In the Levy case, the men who were involved in the execution and planning of the kidnapping received significantly greater sentences than Ms. Wiseman: 20 years for Mr. Zang: Mr. Mathews received 15 years; and Mr. Myers received 10 years.

[33] Justice Forestell noted in Levy that the range for kidnapping can be said to be from 6 years to life imprisonment. The 6 to 10-years range are considered to be at the low end of the range and are reserved for cases that do not have aggravating features, like gratuitous violence and for offenders who played lesser roles. See R. v. Levy, 2024 ONSC 1454 at para 26. A minimal role and mitigating circumstances may, exceptionally bring the sentence below the 6 to 10-year range.

[34] Justice Forestell also reviewed a number of cases where sentences of less than two years had been imposed. R. v. Levy, 2024 ONSC 1454 at para 33 to 36. In those cases, the accused played minimal role in a serious kidnapping. I will review some of those cases here. In R v. Brown (Ball) 2022 BCSC 2372, the accused received a 22-month conditional sentence on a plea to forcible confinement. In that case, the offender lured the victim into a vehicle at the outset of the kidnapping. The victim was then held for several days and subjected to extreme violence. Brown was youthful but was not a first offender.

[35] In R. v. Zhang, 2018 BCSC 2370, the offender and three others kidnapped and repeatedly assaulted the victim over a period of hours. Zhang was a youthful first offender and there were potential immigration consequences for him. He received a 23-month conditional sentence.

[36] In R. v. Hazout, [2005] O.J. No. 3550 (Ont. C.A.), two accused convicted of kidnapping and extortion were sentenced to conditional sentences of 18 months and 15 months respectively. One of the accused knocked on the car window of the victim to get him out of the car. The victim was then surrounded by the three men including the second accused who all forced him into another vehicle. The victim was beaten by the men and forced to write out on a piece of paper that he would continue to provide catering services to the club of the accused. The conviction appeal was dismissed.

[37] In R. v. Baksh, the accused was convicted of kidnapping his girlfriend's eight-year-old son and keeping him for 11 days. The boy was not harmed. Mr. Baksh was convicted after trial. He was a first offender who suffered from several medical conditions and was not at risk to reoffend. He received an 18-month conditional sentence that was varied on appeal only to remove the requirement that he perform community service: R v. Baksh 2008, ONCA 116.

[38] The case before me did not have many of the more serious features found in the majority of the kidnapping cases provided. There was no ransom demand, the length of confinement was short, while violence was used it was not of a long duration and the victim did not suffer any serious injury. There was no evidence that it was gang related.

Youthful Offender

[39] The Court of Appeal has repeatedly emphasized that when a term of incarceration must be imposed because of the nature of the offence, for a young first offender the term “should be as short as possible and tailored to the individual circumstances of the accused”: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 32; R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.), at p. 12. Rehabilitation remains an important factor, when sentencing a young first offender on any offence, including manslaughter. See R. v. S.K., 2021 ONCA 619 at para 12. In Jacko, perpetrators of a serious home invasion had their sentences reduced on appeal to two years less a day by way of a conditional sentence in order to better reflect their rehabilitative potential.

[40] While denunciation and deterrence are the most significant principles in a kidnapping case, I also consider rehabilitation to be of paramount importance where the offender just legally become an adult offender at the time of the offence. See R. v. S.K. supra, at para 12. Courts must exercise restraint in the use of incarceration but particularly so for young first offenders. See R. V. Borde, at para. 36; Gray 2021 ONCA 86. In R. v. Ricketts 2021 ONCJ 404 the youthful first offender was sentenced to a 6-month conditional sentence for a robbery involving an imitation firearm. This was in addition to 5 months credit for pre-trial house arrest term of his release order.

Credit for Presentence Custody and Bail

(ii) "Summers" Credit

[41] It is not contested that Mr. Jazei should be credited in accordance with R. v. Summers, 2014 SCC 26, on a 1.5:1 basis. He had spent 100 days in pre-trial detention. I credit him 150 days or 4.9 months.

(ii) "Duncan" Credit

[42] Counsel submits that her client should receive what has been coined “Duncan credit” after the decision in R. v. Duncan, 2016 ONCA 754. The conditions at the Toronto South Detention Centre (TSDC) are notorious. See R. v. Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at para. 30; R. v. McLaughlin, 2020 ONCJ 566, at para. 37; R. v. Dusome, 2019 ONCJ 444, at para. 56. It is well known that lockdowns due to staffing shortages are frequent.

[43] Mr. Jazei was incarcerated at the TSDC. A summary of his lockdown days from the institution was provided by counsel. For his first period of custody, 63 days, approximately 40 % of the time Mr. Jazei spent in custody was on partial lockdown and one day was full lockdown. I note that he also was in isolation for approximately 8 days. The lockdowns appeared to last no longer than two hours and, in many cases, it appeared to be less than an hour. Similarly with the second period of time from June 1, 2023, to July 6, 2023. Partial lockdowns took place about 30 % of the time.

[44] "Duncan" credit is conceptually distinct from "Summers" credit in that it is a factor to be considered in determining an appropriate sentence rather than a deduction from the appropriate sentence. See R. v. Marshall, 2021 ONCA 344, at paras. 51–52. However, it is not inappropriate to quantify a specific amount of time when determining the effect of harsh custodial conditions. See R. v. Marshall, supra, at para. 53. I will credit him a further 30 days.

(iii) “Downes” Credit

[45] Counsel has submitted that Mr. Jazei should be credited further for being on strict bail conditions from August 17, 2022, until November, essentially for 3 months. See R. v. Downes, [2006] O.J. No. 555, para. 33.

[46] While Mr. Jazei was on strict house arrest which included wearing a GPS monitoring bracelet, he breached his bail and unfortunately committed serious offences. I am advised by his Counsel that Mr. Jazei at the time of this sentencing was anticipating receiving a 5-year penitentiary sentence. Given those circumstances, I will not be giving him the 15 days additional credit as requested by Mr. Jazei.

[47] The total enhanced credit will be 6 months.

The Appropriate Range for Mr. Jazei

[48] The Supreme Court has recognized that sentencing is a highly individualized process driven by the unique circumstances of the offence and the circumstances of the offender. Sentencing ranges are guidelines and not hard and fast rules. See R c Lacasse, 2015 SCC 64, para. 26.

[49] Given the facts of the case before me and the circumstances of Mr. Jazei, I am of the view that the appropriate range would be a reformatory sentence. The kidnapping while very serious, lasted for less than an hour. The only purpose of the kidnapping appeared to be to beat up the victim because Mr. Jazei believed he said something to disrespect his sister(s). Mr. Hussain did not suffer any serious injury. There was no attempt to extort and no plan of looking for a ransom.

Conditional Sentence

[50] Section 742.1(a) of the Criminal Code sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. In this regard, Mr. Jazei while on bail for this offence, breached his bail and committed another serious offence. He has not received any counselling as of yet, although he has taken part in some programs at the Toronto South Detention Centre. I have also considered that prior to the kidnapping he did not have an adult record.

[51] The second prerequisite in s. 742.1(a) is that a conditional sentence must be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”. Denunciation and deterrence are paramount sentencing objectives in kidnapping cases. However, conditional sentences have both a denunciatory and deterrent effect, even where those objectives are paramount: Sharma, at para. 110; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 41, 67; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.

[52] Had Mr. Jazei took the path of rehabilitating himself while on bail, I would have been more inclined to impose a conditional sentence. I have instead concluded that a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing. I have been advised that he has a lengthy sentence to serve for another offence (s). It will be in his better interest that once he is released from jail that he does not have further impediments towards working on reintegrating into the community.

[53] After considering the circumstances of the offence, and the personal circumstances of Mr. Jazei, his young age, the minor youth record, the aggravating and mitigating factors. I am of the view that a fit sentence for the kidnapping would be 12 months in custody. After deducting his pre-trial custody, he has 195 days remaining or 6.4 months. For the assault charge, I sentence Mr. Jazei to 5 months custody but concurrent to the sentence for the kidnapping.

[54] Following his release from custody, he will be placed on probation for a period of 2 years. In addition to the statutory conditions of the probation order, the terms will be as follows:

(i) Report as required to a probation officer. (ii) Take such counselling as is recommended by the probation officer and sign any releases necessary for the probation officer to monitor compliance with this condition. (iii) Not possess any weapons as defined by the Criminal Code. (iv) You will not have contact direct or indirect with Duggan Hussain or Kafar Shakir.

[55] After I gave my reasons for sentence Ms. Baldassi asked me to consider making Mr. Jazei’s sentence concurrent to any sentence he was serving. I was told that he was found in possession of a firearm in Toronto. Counsel did not provide me with fulsome submissions on this point, nor provide the facts surrounding this offence. I am of the view that the offences are remote from one another, and I declined to order that this sentence be served concurrently to any other sentence he is serving.

Released orally: April 23, 2024 Released in writing: July 10, 2024 Signed: Justice A.R. Mackay