COURT FILE NO.: London 21-9570 DATE: 2024-05-15

ONTARIO COURT OF JUSTICE

RE: HIS MAJESTY THE KING AND: ALYAN AHMED

BEFORE: Justice M. B. Carnegie

COUNSEL: A. Campbell, for the Crown S. Puchala, for the accused A. Ahmed

HEARD ON: July 28, 2023, February 9, 2024 REASONS FOR JUDGMENT RELEASED ON: May 15, 2024

Sentencing Judgment

CARNEGIE J. (orally):

[1] Gabriel Neil was 18 years of age when he was killed on September 11, 2021. He was in the second week of his first year at university. After a night of socializing he came upon a stranger, Aliyan Ahmed, at a convenience store near campus. He was drunk. He said something that upset Mr. Ahmed. Mr. Ahmed motioned to Mr. Neil, as if to invite him over, and then physically retaliated. He punched Mr. Neil once in the head. Mr. Neil fell to the ground and later died of his injuries. A senseless loss of life.

[2] Mr. Ahmed was 20 years of age when he killed Mr. Neil. He attended the convenience store with friends. Mr. Neil obviously upset him. He resolved to punch Mr. Neil in the head and did so. He did not intend to cause his death. When Mr. Neil fell to the ground, Mr. Ahmed and his friends fled from the scene. He has now plead guilty to committing manslaughter. He has no criminal record but now faces the real prospect of jail. A senseless loss of liberty.

[3] I am now required to sentence Mr. Ahmed. In so doing, I am called upon to express our community’s disapproval of this conduct by imposing a just sanction against this offender. I cannot make sense of this tragedy. Two families are now forever changed because Mr. Ahmed choose violence instead of walking away. No sentence I can impose will bring back Mr. Neil nor equate with our community’s loss. That is not the purpose of sentencing. Instead, I must balance the need to deter and denounce this and like behaviour with appropriate restraint that is grounded in Mr. Ahmed’s rehabilitative prospects.

[4] On the consent of counsel, and pursuant to s. 669.3 of the Criminal Code, I maintain jurisdiction to complete this sentencing hearing.

Circumstances of the Offence

[5] Gabriel Neil was 18 years old when he started his post-secondary studies at Western University. He had dreams of becoming a doctor and, according to all reports, those were not idle dreams.

[6] On September 11, 2021, at 1:50am, Mr. Neil and a friend were walking back to their dormitory after a night of socializing. They stopped at the 7-Eleven convenience store and gas bar at 1181 Western Road, London, Ontario, to purchase some food. The accounts of the following events were captured by store surveillance video which depicted patrons’ movements both in and outside the front of the store. The confrontation ultimately occurred on the north side of the building where no CCTV coverage was present.

[7] Mr. Ahmed arrived with a group of friends, driving a silver BMW vehicle. He parked at the front of the convenience store, behind another vehicle, a white Audi, containing other friends. He exited his vehicle with friends, meeting others outside.

[8] Mr. Neil was standing in front of the convenience store. Given his physical deportment, he was obviously highly intoxicated, which was verified by witness accounts. At first, Mr. Neil and his friend’s interactions with Mr. Ahmed’s group appeared cordial. That did not remain the case. An apparent verbal altercation occurred and Mr. Neil’s friend was obviously physically holding him back. A 7-Eleven employee attended to de-escalate the situation. He was not successful.

[9] What was said, and by whom, was the source of some comment during this sentencing hearing. A variety of witnesses interviewed by police commented about competing racially based slurs from both groups of males. A consistent account of this commentary is unavailable. I specifically queried whether counsel wished to enter a Gardiner hearing to resolve what, if anything, was said and its ultimate relevance to events. Both the Crown and defence declined my invitation. As such, I will not be attributing racial overtones to the commentary in question – on this evidentiary record, it is enough that something was said prompting this fatal altercation.

[10] Suffice it to say, born out by the available CCTV evidence (which does not have audio), something was obviously said that prompted Mr. Ahmed to further engage with Mr. Neil. After some obvious back and forth commentary, and a few occasions where Mr. Neil had to be physically restrained, Mr. Ahmed retreated to the driver’s side of his vehicle only to abandon that sensible course and then wave Mr. Neil over – towards the north side of the convenience store building.

[11] Once Mr. Neil rounded the building corner, the altercation turned physical. Mr. Ahmed struck Mr. Neil once in the face. Mr. Neil fell to the ground, hitting his head on the pavement as he fell to the ground. Once down, one of Mr. Ahmed’s friends then kicked Mr. Neil in the torso.

[12] Immediately, Mr. Neil was unresponsive. Mr. Ahmed and the other assailant fled the scene – returning to their respective vehicles and driving away. They did not call for help, they left Mr. Neil on the ground.

[13] Mr. Neil’s friend came over to assist. The 7-Eleven store employee called 911. Police arrived to find Mr. Neil lying on his right side, unresponsive and bleeding from a cut on his lip. They noted a contusion on the back of his head that was swollen but not externally bleeding. London Fire Department and Middlesex EMS arrived on scene and secured and transported Mr. Neil to the Victoria Hospital.

[14] Upon medical examination, it was determined that Mr. Neil suffered a subdural hematoma, subarachnoid hemorrhaging, an occipital fracture and cerebral edema. Simply put, Mr. Neil suffered a significant head injury including his bleeding near his brain, trauma between the base of his skull and cervical spine and brain swelling. On September 12, 2021, Mr. Neil died of his injuries while in hospital.

[15] On September 11, 2021, at 8:50pm, Mr. Ahmed was stopped by police while driving his BMW vehicle. He was arrested for aggravated assault based upon the ongoing Neil investigation but also cautioned for murder as a result of the police’s anticipation respecting Mr. Neil’s prognosis. He spoke with counsel and then was interviewed by police. He acknowledged punching Mr. Neil once in the face, claiming he acted in self-defence. He complained about Mr. Neil’s commentary towards him. At 12:12pm, after Mr. Neil passed, Mr. Ahmed was charged with manslaughter.

Victim Impact

[16] During the sentencing hearing, over a dozen Victim Impact statements were represented. They were difficult to hear and read. From Mr. Neil’s parents, aunts, uncles, godparents and grandparents to his girlfriend, friends and their parents and hockey coach, I learned a great deal about this exceptional young man. Their grief is palpable and entirely understandable.

[17] What I learned about Mr. Neil is important. It is a necessary component to any court’s appreciation of the circumstances and the community’s loss. Mr. Neil was an only child of his parents, and the first-born grandchild in the family. He excelled in school and was active in team sports including hockey and rugby – indeed, he was a budding rugby player for Western. He volunteered within his community and, as noted, his goal was to become a doctor. His decision to become an organ donor was no surprise to those who knew him, and saving life through this choice is part of his legacy. A tall young man, Mr. Neil was simply considered by many as a “gentle giant”.

[18] The impact upon Mr. Neil’s family and friends has been substantial and profound. His long-term girlfriend’s life has forever been altered. All of them, in law and reality, are victims of this crime. Each of them are going through their own grieving process, including loss, anger, regret, guilt, depression, fears for their ongoing security and a challenge to their spiritual faith – a full gambit of responses that, as clear as anything presented before me highlights the human condition. Some have had their day-to-day lives dramatically altered, their work lives upended.

[19] Frankly, there are no words of consolation that the administration of justice can offer to a parent who has unnaturally lost their child, to other family members and friends who have lost an anchor and close companion in their lives. By necessity, the justice system is reactive with a broad focus. What I certainly can say, in response to his father’s words, is that Gabriel did not deserve to die.

[20] As a member of this community, I would be remiss not to mention the obvious. This tragic event impacted the London community at large. It was well publicized and the circumstances led Western University students to participate in a candlelight vigil – for a fellow student who was only in their ranks for a week.

Circumstances of the Offender

[21] Mr. Ahmed is presently 22 years of age, and was 20 years old at the time of this homicide. He is the eldest son (with a twin sister) in a family of four children. His is a first-generation immigrant to Canada, having moved with his family from Pakistan in 2004 to join his father who was already working here. He has benefited from a loving home environment, a supportive extended family and a large faith community. He moved with his family to London, Ontario while he was in the tenth grade. They were, sadly, seeking out a less violent and safer community with a better cost of living.

[22] Mr. Ahmed has been described by family as ambitious. He graduated from secondary school in 2019 and then attended a Police Foundations program at a local community college through 2021. He was intent upon becoming a police officer, but this event grounded that goal. He is presently enrolled Laurier University as a second-year part time student, working on and Honours Bachelor degree focused upon political studies.

[23] He has maintained various employment from 2019 through to the present working in a warehouse, daycare, liquidation centre, as a delivery driver, in a restaurant and at a service centre. Several positive reports about his employment disposition were verified. He also has a history of volunteering in the community, including in relation to his faith community.

[24] He expressed to the Presentence Report author feelings of remorse, shame and deep regret for his offence related actions. His emotions got the better of him, but he accepts full responsibility for his actions. He has leaned upon his faith for healing, thinking about the victim and his family during his daily prayers. Close to his mother, he expressed the poignant comment: “I can only imagine what the victim’s mother must be going through.” He hopes that someday he can contribute and help others involved in the justice system in whatever capacity presents itself. I have learned from his counsel that he hopes, in the future, to serve this community as a lawyer.

[25] Mr. Ahmed has commenced counseling to address the emotional trauma of these circumstances. That is encouraging. He has sought assistance with his own grief, pre-existing and exacerbated PTSD symptoms, and anger management. His counselor noted that he has not sought excuses but has, instead, remained focused bring meaning to the experience to assist him in healing and moving forward with integrity.

[26] The Presentence Report author summarized that Mr. Ahmed “expressed a comprehensive and empathetic understanding of the tragic consequences of his actions, and the motivation to comply with any conditions that may be imposed by the Court as part of an appropriate sentence.”

Mr. Ahmed’s Allocution

[27] With this background in mind, I was unsurprised to hear from this offender during his sentencing hearing. He read from a prepared text, Exhibit 8, which was, I find, a genuine expression of remorse. It is replete with self-critical references, including: “I feel disgusted by my actions and am profoundly ashamed. The guilt I carry for causing an individual’s death and a mother to lose her son, and the ripple effect on both families, is overwhelming. The impact has matured me in ways I never thought possible at such a young age.”

[28] The offence insight shared by this offender is appropriate and clear: “I deeply regret engaging in a confrontation with Gabriel, and I should have left the situation immediately, especially knowing he was not in the right state of mind… Looking back, I should have exercised greater restraint and left the scene when I first attempted to do so. Instead, I allowed the situation to escalate, leading to a devastating outcome.”

His Family’s Offerings and Supporting References

[29] Unusually, I permitted members of Mr. Ahmed’s family to address the court beyond submitted letters of reference. I did so because the grief shared through this emotional sentencing hearing needed an outlet and demonstrated, better than words, the “ripple effect” that our choices and actions can have not only upon strangers, but upon those we love and who care for us most.

[30] Hearing from Mr. Ahmed’s mother, his father, his twin sister and younger brother was important because it laid bare the familial impact this event has had even upon the offender’s family. To hear his family seek forgiveness from the Neil family, the other victims and from God speaks not only to their character but to that of this offender. It is difficult to see anything but tragedy from this entire event.

[31] I have read carefully the numerous other positive character references submitted on Mr. Ahmed’s behalf. From friends, community advocates and an area physician, his faith and willingness to help others in his community was praised. I am exhorted to consider this tragedy as an anomaly in an otherwise pro-social life of service and kindness. Resort to faith in these circumstances is entirely understandable and expressions of what it can teach this offender is praiseworthy.

[32] Overall, it is heartening to see a community in this offender’s corner, strongly encouraging his healing efforts. This, as much as his own will to improve, will set Mr. Ahmed’s feet pointed on a healthy rehabilitative path.

Legal Framework

[33] Section 718 of the Criminal Code defines the fundamental purpose of sentencing: “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims of to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.”

[34] Section 718.1 of the Code identifies the fundamental principle of sentencing as proportionality. It is commonly referred to as the cardinal principal of sentencing and requires that the court consider the gravity of the offence, and the moral blameworthiness of the offender. It is determined both on an individual basis, that is in relation to the accused and the offence they committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances – known as parity. The Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 emphasized that a proportionate sentence is one that is individualized. In other words, it is one that is deserved by the offender. Simply put, the Lacasse court noted at para. 12 that “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.” This highlights Parliament’s instruction in section 718 (f), which necessitates that through sentencing I “promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.”

[35] The proportionality principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment speak out against the offence and punish the offender, but no more than is necessary. In so doing, it seeks to balance the principle of restraint with the importance of holding offenders accountable for their actions. A helpful tool in this analysis is the consideration of a particular case’s aggravating and mitigating factors. Of course, the moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct. But, as our common law has made clear, when one elects to use violence to resolve conflict the consequences of that choice can be extreme whether intended or not. And the consequence of that violent conduct often plays a significant role when determining the gravity of the offence and, therefore, impacting upon the balance that proportionality envisions.

[36] Section 718.2 (b) of the Criminal Code highlights the importance of “parity”. Subject to the particular circumstances of the offence and offender, similar offenders for similar offences in similar circumstances should receive similar sentences. Sentencing judges must seriously consider the importance of parity because, otherwise, simple reliance upon the particular will or idiosyncrasies of whichever sentencing judge walks into the courtroom would diminish the public’s confidence in the administration of justice.

[37] In manslaughter cases, the statutory range of sentence is necessarily broad – there is no mandatory minimum sentence and the maximum sentence is life imprisonment. This speaks to the wide range of possible unlawful conduct which may cause death, and the lack of intent to cause that outcome. However, a common feature of manslaughter sentencing is the prioritization of the sentencing principles of denunciation and deterrence (both general and specific). Denunciation refers to the communication, through the imposition of a sentence, of society’s condemnation of the offending conduct. General deterrence contemplates sending a message to the community at large, and in particular to those of like mind, to discourage similar conduct in the future. Specific deterrence involves sending a message to the offender before the court, to dissuade them from committing similar acts in the future.

[38] Finally, section 718(d) of the Criminal Code compels me to be mindful of importance of rehabilitation, particularly when dealing, as here, with a youthful first-time adult offender. Restraint is required, as noted in section 718.2 (d) and (e), to ensure that an offender is not deprived of liberty if less restrictive sanctions may be reasonable and appropriate and, if custody is required, the least amount of custody necessary to satisfy other principles of sentencing should be imposed.

Range of Sentences in Like Manslaughter Cases

[39] As I have noted, the range of sentences available in manslaughter cases is very broad. That is because, as the Supreme Court noted in R. v. Creighton, [1993] SCJ No 91, at para. 86:

…manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender.

[40] I have considered a number of like cases to assist in determining what is an appropriate range of sentence. That there has developed a “one-punch” manslaughter inventory for my review is a sad commentary upon the social futility of such violence. My review of Ontario authorities noted sentences as high as seven years and as low as two years less one day of incarceration. Short of exceptional Gladue relevant cases that were largely factually distinguishable, I was unable to find any similar circumstances yielding a conditional sentence. As such, I am unsurprised by the Crown’s suggestion that the range of sentencing for this offending conduct, in these circumstances, should be between three- and five-years incarceration.

A Survey of Like Cases

[41] In R. v. Gayle, 2020 ONSC 4743, Justice Forestell sentenced Mr. Gayle, who pled guilty, to seven years imprisonment for a one punch blow to the head of a vulnerable drunken victim at a bar. The blow caused the victim to fall and hit the back of his head on the ceramic floor. He suffered a slow traumatic brain bleed and died several days later. The offender’s background was extremely disadvantaged and he was homeless at the time of the offence. The court found that Mr. Gayle’s moral blameworthiness was not at the upper end of the spectrum due to his impulsive actions which demonstrated a mere loss of self-control.

[42] In R. v. Yusuf, 2012 ONSC 2421, Justice Ratushny sentenced a youthful (20 years old) first-time offender to six- and one-half years imprisonment. The offender pled guilty to punching, once, a fellow bar patron in the head knocking him off his bicycle. As a result of the blow, the victim fell to the ground and was then stomped on repeatedly.

[43] In R. v. Hanifan, [2001] OJ No 1576, our Court of Appeal upheld a six-year sentence where the offender, after trial, was found to have punched, once, a fellow bar patron in the face. The victim fell to the ground and struck his head on the pavement causing a fatal head injury. He died several days later. The offender then fled the scene but surrendered himself the next day. The offender had a criminal record.

[44] In R. v. Henry, 2002 NSCA 33, the Nova Scotia Court of Appeal overturned a trial judge’s two years less one day conditional sentence for manslaughter where the offender punched the victim once in the face after he saw him striking a young woman at a bar. The victim fell backwards and struck his head on the pavement and suffered fatal injuries. The Court of Appeal found that the offender’s lack of criminal history was insufficient cause for an “excessively and manifestly lenient” sentence which did not appropriately reflect denunciation and general and specific deterrence. As a result, a four-year sentence was imposed. In so doing, this court, at para. 14, identified that a great majority of manslaughter sentences fall in the four-to-ten-year range, but that the nature of the offence itself makes it “unusually difficult to establish any benchmark range of fit sentences”.

[45] In R. v. Isenor, 2007 NSPC 70, Justice Derrick of the Nova Scotia Provincial Court sentenced an offender of previous good character for a one punch manslaughter to three years imprisonment. He punched an intoxicated victim in the mouth outside a bar. The victim fell and hit his head, causing his death. While the offender was remorseful and the events uncharacteristic for him, a conditional sentence was deemed inappropriate. The court found that a high degree or moral blameworthiness coupled with the need for a denunciatory and deterrence sentence mandated a sentence in the penitentiary range.

[46] In R. v. Braune, 2006 ONCJ 50, Justice Hearn sentenced an 18-year-old first-time offender who plead guilty to two- and one-half years imprisonment for a one punch manslaughter event. The 19-year-old victim made a comment about the offender’s girlfriend resulting in a punch which knocked the victim’s head against a cement wall, causing blunt force head trauma resulting in his death. The offender was genuinely remorseful, came from a stable and supportive family and was taking counseling and continuing his education. He was motivated to rehabilitate himself, and re-offending was “extremely unlikely”. Nevertheless, the principles of general deterrence and denunciation took priority and merited a term of imprisonment. A conditional sentence was deemed inadequate to satisfy these superordinate sentencing objectives. Justice Hearn commented, at para. 51: “This was a violent, senseless and unlawful act, the consequences of which are substantial and have long-reaching impact not only on [the victim’s] family but also on the community.”

[47] In R. v. Clarke, 2023 ONSC 347, again, Justice Forestell faced a one punch to the head manslaughter guilty plea from an indigenous offender with a criminal record speaking to addiction related issues. The offender’s unprovoked punch caused the victim to fall backwards and hit his head on the road. He lost consciousness and later died from the resulting head trauma. The court found the offender’s conduct fell into the lower end of the spectrum of moral blameworthiness, but the assault caused profound and serious consequences. A review of similar sentencing authorities revealed that a range of sentence for manslaughter cases involving “one impulsive punch” is from two years less a day to six years imprisonment. Denunciation and deterrence were found to generally be the predominant sentencing objectives for manslaughter and, here, mandated a penitentiary sentence which was proportionate to the gravity of the offence. A conditional sentence, therefore, was not available. Further, a significant sentencing consideration was the offender’s relevant Gladue factors which, but for, would have resulted in a sentence of four to five years. Instead, the offender was sentenced to 28 months imprisonment, or approximately two years, three months.

[48] Finally, in R. v. Tabbara, 2009 ONCJ 568, [2009] OJ No 4397, a youthful first offender was sentenced to two years less a day of imprisonment after one punch to the back of the neck caused the victim to collapse and die. This 21-year-old offender, convicted after trial, to an event described by Justice Blishen as “spontaneous, impulsive and took a split second.” Nevertheless, a conditional sentence was deemed inappropriate as this was a violent crime with the gravest consequence, the assault was intentional with the foreseeability of bodily harm, and the blow inflicted by the accused was from behind when the victim was walking away. At para. 93, Justice Blishen commented: “[T]o permit him to serve his custodial term in the community would not give sufficient weight to the principles of general deterrence and denunciation, nor would it meet the fundamental purpose of sentencing – to contribute to the respect for the law and the maintenance of a just, peaceful and safe society.”

The Availability of a Conditional Sentence

[49] While I agree with the Crown that this offence is inherently serious and merits both a deterrent and denunciatory sentence, incarceration is not the only means to achieve these sentencing goals. Violent crimes, even those causing death, do not, per se, exclude consideration of a conditional sentence if the statutory pre-conditions are met.

[50] A conditional sentence is a custodial sentence. It is distinguishable based upon its service within the community – often commonly referred to as ‘house arrest’. However, the imposition of a conditional sentence will only inspire public confidence if it is punitive in a real sense. As the Supreme Court of Canada stated in R. v. Proulx, 2000 SCC 5 at para. 117: “[P]unitive conditions such as house arrest should be the norm, not the exception.” A conditional sentence cannot become little more than a glorified probation order.

[51] Section 742.1 of the Criminal Code outlines the statutory preconditions for conditional sentence consideration, including:

(1) where the sentence of imprisonment imposed is less than two years;

(2) whether service of a custodial sentence within the community would “endanger the safety of the community” and whether it would be “consistent with the fundamental purpose and principles of sentencing”;

(3) the offence is not punishable by a minimum term of imprisonment (as here); and

(4) the offence is not an enumerated exception, like murder or terrorism (as here).

[52] Whether a conditional sentence is appropriate often comes down to whether it can adequately reflect the gravity of the offence and thereby provide sufficient denunciation and general deterrence and whether it can fit under the two-year cap.

[53] As recently reminded by our Court of Appeal in R. v. Ali, 2022 ONCA 736, [2022] OJ No 4754, I must consider whether a conditional sentence is appropriate, even with respect to serious violent offences. There, the offender was being sentenced for aggravated assault. At para. 28, the Ali court noted that considering whether a conditional sentence is appropriate even in cases where the paramount sentencing principles are denunciation and deterrence involves “considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation.” Of course, the Ali decision was simply updating the Supreme Court’s comments in R. v. Proulx, where Chief Justice Lamer noted, at para. 22, that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence." Punitive provisions, such as house arrest, carry a stigma that should not be underestimated and can provide “a significant amount of denunciation” and “significant deterrence”.

[54] In R. v. Sharma, 2020 ONCA 478, though overturned by the Supreme Court on procedural and interpretative grounds, Feldman J.A. noted, at para. 171, that “[e]ven in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.” The implication is clear, the more serious the offending conduct, the more pressing the need for a denunciatory and deterrent response and, therefore, the more restrictive a conditional sentence must be.

[55] However, Chief Justice Lamer conceded in Proulx, at para. 106, an oft quoted passage, that there will be cases “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”

[56] Finally, I consider the implication of Parliament’s November 17, 2022, Bill C-5 response to the Supreme Court’s decision in R. v. Sharma, 2022 SCC 39 from November 4, 2022. Instead of maintaining the existing sentencing regime, which enumerated certain types or classes of offences which did not qualify for a conditional sentence, and which the Supreme Court found constitutional, it stripped away many of the existing restrictions allowing for a broader sentencing assessment. Before November 17, 2022, manslaughter was not an offence which qualified for conditional sentence consideration because, as an Indictable offence, it was subject to a maximum term of life imprisonment. As that is no longer the case, the effect may ripple. Regardless, this almost immediate statutory change, when it was not compelled to do so, undoubtedly is a signal from Parliament that conditional sentences remain an effective sentencing tool, even when faced with serious violent offences. It is reasonable to expect that this legislative development will, as intended, reinvigorate the usage of conditional sentences in appropriate cases.

Analysis

[57] I must now assess what constitutes an appropriate range of sentence for this conduct prompting this tragic result. The Crown contends that the appropriate range of sentence is three to five years incarceration. Only this range of sentence can adequately satisfy denunciation and deterrence. The defence counters with a restraint inspired submission, that these primary sentencing principals may be satisfied by the imposition of a maximum term conditional sentence with punitive terms and conditions.

[58] This leads to an active consideration of what proportionality demands. What individualized sentence can be fashioned for this offender that balances the gravity of this offence and Mr. Ahmed’s moral blameworthiness?

[59] By way of aggravating factors, I have considered the following:

(1) the consequence of this violence was grave – resulting in the death of another young man, full of potential;

(2) the impact upon the victim’s family and loved ones is nothing short of devastating. They have lost a beloved son, grandson, nephew, cousin, partner, friend and role model and their lives will be indelibly changed;

(3) this was not a spontaneous event, the offender having the opportunity to remove himself from the conflict on a number of occasions but, instead, choosing to re-engage and let emotion and anger suppress reason;

(4) this was a brazen assault, in public, of an obviously intoxicated, and thereby vulnerable, victim that Mr. Ahmed initiated by waving the victim over, obviously for violent purposes. While not premediated at length, it cannot be characterized as a momentary reaction to aggression but was instead a settling of the grievance through intended violence; and

(5) Mr. Ahmed fled the scene after seriously grounding the victim with a single blow. He did not seek assistance for the victim but was instead focused upon self-preservation.

[60] With respect to mitigating factors, the following has been taken into account:

(1) Mr. Ahmed has pled guilty. In so doing, he has accepted responsibility through this formal acknowledgement of remorse. This is a relevant and positive factor respecting his prospects for rehabilitation. But his remorse goes beyond formality. His allocution made plain the genuine regret for the “irreparable harm” that he has caused to the victim’s family and loved ones. He understands that his actions, his choices have forever changed many lives, and have robbed a young man of his life and the community of his life’s potential. Mr. Ahmed must live with that burden, live with that shame, and unsurprisingly it has been a different burden to bare;

(2) Mr. Ahmed’s guilty plea has saved the victim’s family the additional trauma associated with a trial. Legal finality offers some mercy. The plea has also practically saved the administration of justice the burden of further accommodating what would have undoubtedly been a difficult proceeding, when our court’s resources have been stretched to their limit due to a pandemic induced backlog;

(3) Mr. Ahmed’s rehabilitative prospects are real. He has a strong and supportive family, and – as evident by those surrounding him in this courtroom – a community in his corner. Mr. Ahmed could have wallowed in self-pity and given up hope for his future. Instead, he has commenced a journey of personal growth through the assistance of counseling and therapy, post-secondary education and gainful employment all mindful of his goal to contribute positively to this community that supports him. He seeks an opportunity to make amends;

(4) Mr. Ahmed’s support within the community has extended to many positive representations about his character. I am encouraged to view this event as an anomaly in an otherwise pro-social young life full of eventual promise. His history of volunteer work, and connections to his faith-based community make real the prospect of that promise; and

(5) Mr. Ahmed is a first-time youthful adult offender.

[61] I am confident in concluding that Mr. Ahmed presents as a real and positive rehabilitative prospect. His pro-social efforts and community supports put him in a realistic position to succeed.

A Fit Sentence for This Offence and This Offender

[62] It has been presented to me that this offender’s sentencing runs the risk of exacerbating a tragedy by the imposition of a traditional custodial sentence. At its most basic, one young life full of potential has been lost, do not make it worse by destroying another.

[63] While I understand the sentiment, and where it comes from, it represents a distorted view of the sentencing exercise. Naturally, I must consider the circumstances of this particular offender when crafting an individualized, proportionate sentence. But proportionality reflects a balance, and the gravity of the offence also demands expression.

[64] Without question, Mr. Ahmed’s rehabilitative efforts and circumstances are compelling. He has arguably done all that is reasonable to expect of an offender in his shoes and has the support of his family and community.

[65] That said, our community expects this court to express its revulsion of this type of senseless violence, particularly when it leads to death. While Mr. Ahmed may not, as demonstrated, need a specific deterrent message to ground home the point, the same cannot be said of the public at large. This court has a duty to deter other likeminded individuals, by sending a loud message that resort to such violence creates the very real prospect of tragedy, that such tragedies impact this community gravely, and that the resulting consequences to those making that choice will be grave. As I have noted, parity matters and there is societal value in maintaining its deterrent messaging.

[66] Contextually, this matter falls on the lower level of the moral blameworthiness realm for manslaughter offences but the gravity of the offence remains high. While Mr. Ahmed was settling a grievance through violence, it was not a long pre-existing one. It was an emotional, aggressive reaction to some perceived insult, and it was affected through one blow – not a prolonged multifaceted attack. He initiated the violence by calling the victim over – that cannot be diminished. And, then, after downing his victim, he cowardly fled to obviously escape liability, presumably completely unaware of the ultimate ramifications of his actions. This heightens his moral blameworthiness. Even after this fatal blow, he could have lived up to his professed character in that moment, come to his senses, and sought help for a stranger he put in real distress. Instead, he drove away after a brazen and self-congratulatory punch in public, surrounded by friends. I am, therefore, forced to conclude that this tragic event is not exceptionally mitigating in any real way. Instead, the gravity of the offence is clear, and his moral blameworthiness, while relatively low, is not negligible.

[67] I have considered the moral blameworthiness of this offender’s actions and whether, on this basis, a conditional sentence would be appropriate. Can the mitigating circumstances present tip the balance towards a non-incarceration response? Prioritizing both denunciation and deterrence, and ever mindful of both the principles of restraint and rehabilitation (particularly when dealing with a youthful first-time offender), can I justify a sentence under two years of custody? Unfortunately for Mr. Ahmed, I cannot. I believe that proportionality compels a sentence outside the reformatory range. It requires a sentence beyond two years. While Mr. Ahmed has presented himself, particularly post-offence, in the best possible light, only a penitentiary sentence can send the necessary message to this community that violence has real and serious consequences, and a resort to it to resolve momentary grievances runs the risk of causing death and a resulting lengthy period of incarceration. To impose a lower sentence, however tempting in the face of all this tragedy, would not, I believe, adequately address the sentencing goals of denunciation and deterrence nor adequately reflect the seriousness of this offence.

[68] That leaves the determination of the appropriate length of Mr. Ahmed’s penitentiary term. Here, I will lean heavily upon the principle of restraint. Mr. Ahmed’s prospects for rehabilitation are quite positive. He has every reason to continue upon his healing journey, once released from custody, with the necessary community supports to help him reach his goals. Therefore, I must incarcerate him no longer than it is necessary to send the appropriate denunciatory and deterrent message to the community at large. But for the strength of his presenting mitigating circumstances, including his guilty plea, lack of criminal history, youthful age, rehabilitative personal and educational efforts and familial and community supports, I would have considered a range of four to five years as entirely appropriate. Instead, I have been convinced that a fit sentence for Mr. Ahmed should be on the lower end of the observed “one-punch” manslaughter range.

Conclusion

[69] Mr. Ahmed, please stand. I am sentencing you to a custodial period of three years. I believe that this is the lowest appropriate term of imprisonment that can adequately address the seriousness of this offence. I delayed today’s sentencing hearing into May to ensure that you would be able to finish, uninterrupted, your second year of post-secondary studies. While this sentence may stall your educational progress, it will not arrest it if you are genuine in and stay motivated upon your rehabilitative journey.

[70] By way of ancillary orders, you will be ordered to provide a sample of your DNA pursuant to s. 487.051 of the Criminal Code, in compliance with the DNA Identification Act. Further, you will be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and any other firearm or any cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years, pursuant to s. 109 of the Criminal Code. Finally, pursuant to s. 743.21 of the Code, you will refrain from communicating with your co-accused, Mr. Raselma, while you are serving your custodial sentence.

[71] Counsel, this was a particularly difficult sentencing hearing. Your professionalism was noted and appreciated by this court.

Released: May 15, 2024 Signed: Justice M. B. Carnegie