ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-RM1894
DATE: 20120525

INFORMATION CONTAINED IN PARAGRAPH 28 IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, c. 1.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ALI ISSAKY

Lia Bramwell and Lisa Miles, for the Crown

Matthew C. Webber and Kimberly D. Hyslop, for the Accused

SENTENCING DECISION

JUSTICE L. RATUSHNY

[ 1 ] Ali Issaky has pleaded guilty to two counts of manslaughter in connection with the deaths of Margaret Ikkers and Lillian Saumur.

[ 2 ] Margaret Ikkers and Lillian Saumur lost their lives because of a brief reckless act by Mr. Issaky. He flicked his lighter at and started a small flame on an artificial Christmas wreath hanging on the second floor hallway door of a high-rise apartment building, before leaving the building without a second thought.

[ 3 ] A fire raged through the hallway. Fire alarms went off. It was December 24, 2009 around 4:30 a.m. and the building’s residents were shocked out of their sleep. The voice component of the fire alarm on the second floor where the fire was started malfunctioned because of the fire. As a result, Ms. Ikkers was not able to hear the warning to stay in her apartment. She died in the fire and was found lying in the hallway. Ms. Saumur exited her apartment briefly during the fire but then retreated to remain inside her apartment. She died in hospital two days later from injuries she had suffered. Her lungs had been badly burned.

[ 4 ] Mr. Issaky’s flicking of his lighter at the wreath was so dangerous and so reckless it defies belief that anyone could act in such a way. Everyone and especially the families of Margaret Ikkers and Lillian Saumur and the apartment residents have looked for an explanation to help them understand how all of this could have happened and to provide them with some reassurances that this is unlikely to ever happen again, to anyone.

[ 5 ] Everyone now understands that Mr. Issaky started the fire. However, knowing why he started it, as a mindless prank, rather than providing comfort to those so grievously affected leaves listeners with shocked disbelief that someone could be so reckless.

[ 6 ] We have all learned that two wonderful women who were pillars of their families and of their wider communities lost their lives because of this brief irresponsible act.

[ 7 ] It is now for this Court as part of the sentencing process to denounce Mr. Issaky’s actions, to deter him and others from ever engaging in such dangerous conduct and to explain this Court’s reasons for arriving at a sentence that it has determined is just and appropriate in all of the circumstances.

[ 8 ] In R. v. C.A.M. , 1996 230 (SCC) , [1996] 1 S.C.R. 500 (SCC), at para. 82 , the Supreme Court of Canada has said, and this is reflected in s. 718.1 of our Criminal Code as a fundamental sentencing principle, that a “just and appropriate” sentence is one that is proportionate to the gravity of the offence and the degree of responsibility of the offender. The degree of responsibility of the offender referred to in the Criminal Code does not simply refer to the offender’s legal responsibility for having committed a crime and for having intended to commit that crime, but also to an assessment of his level of moral blameworthiness for it.

[ 9 ] The gravity of Mr. Issaky’s offence is clear. That Mr. Issaky is morally at fault is also clear. To understand, however, the level of his moral fault so as to fashion a just and appropriate sentence responsive to that degree of moral fault, requires an examination of all of the circumstances of the offence and of the offender. That is the direction I now take.

The Offence

[ 10 ] On the evening before the fire Mr. Issaky was celebrating his 23 rd birthday with some friends at a bar in Ottawa. After the bar closed in the early morning hours of December 24, 2009, he left with some of those friends to socialize at Hamid Rahimi’s Apartment 225 at 1695 Playfair Avenue on the second floor. They were at Apartment 225 for approximately two hours and Mr. Issaky napped for some of that time. There had been a fair amount of alcohol consumption throughout the evening and this delay before returning home was in part to “sober up” before driving home. Mr Issaky was the driver that evening.

[ 11 ] Mr. Issaky and his friends, Colin and Rohan Bennett, left Apartment 225 around 4:18 a.m. They were all in a good mood. Mr Issaky and Rohan Bennett playfully jostled each other back and forth as they proceeded down the second floor hallway to the exit stairs. On leaving Apartment 225, Mr. Issaky began playing with his lighter in the hallway, flicking the flame on and off and waving it around in a back and forth motion, smiling and giggling as he did this. Rohan Bennett stepped forward, put his hand over the lighter and told Mr. Issaky to stop playing with it and said, “let’s go”. Rohan Bennett then exited down the stairs ahead of Mr. Issaky and his brother, Colin Bennett , who were making their way towards the same stairs.

[ 12 ] Mr. Issaky then went past the door to the stairs and approached the door of Apartment 221 where a Christmas wreath was hanging. He made a movement towards the door that suggested to Colin Bennett he was going to knock on the door as a prank. It was the early morning hours and Colin Bennett tried to stop him by saying something like “relax”. Mr. Issaky then activated the flame on his lighter and put the flame to the Christmas wreath. Colin Bennett observed a small flame on the wreath and a wisp of smoke just before he followed his brother Rohan down the same stairs. Mr. Issaky followed seconds later.

[ 13 ] Colin Bennett did not think anything would happen to the wreath because it was not a significant flame and he thought Mr. Issaky would put the flame out before leaving or, that it would go out on its own. Colin Bennett testified at the preliminary inquiry that he had no fear a fire would ensue from Mr. Issaky’s act, nor did it ever enter his mind that anyone would get hurt let alone die from it.

[ 14 ] Outside the building, Colin Bennett said to Mr. Issaky that what he had done wasn’t smart. Mr. Issaky responded by saying something like “don’t worry about it, oh well”. He then drove the Bennett brothers to their family home and returned to his own home where he resided with his parents, his wife and their small child. Both Bennett brothers said Mr. Issaky appeared sober enough to drive and there was no discussion during the drive home of the incident involving the lighter and the wreath.

[ 15 ] Meanwhile, at 4:28 a.m. the fire alarm on the second floor of 1695 Playfair Avenue was activated. Mr. Rahimi called 911 after he looked out the door of his Apartment 225 and saw the hallway in front of his door engulfed in flames and smoke. He described the scene as one of fire going sideways in a wave pattern and as he opened his door just a bit, the flames immediately started jumping around the door like a beast banging against it.

[ 16 ] Residents of the second floor had to retreat to their balconies to anxiously await rescue. Residents of the other floors were advised by the voice broadcasting function of the alarm system not to leave their apartments and to go onto their balconies. Thick smoke travelled up ten floors. Residents of the high-rise waited on their balconies in the cold and dark early morning hours for firefighters to rescue them and after that, for transport to various locations.

[ 17 ] By the time firefighters arrive at the scene at 4:34 a.m., the fire had burned itself out. It had commenced at approximately 4:18 a.m. and the alarm was reported at 4:29 a.m.

[ 18 ] Ms. Ikkers was found dead in the hallway with severe burns to her hands and face, just fifty feet from her apartment door. She appeared to have been trying to reach the elevator or the stairs. Ms. Saumur had entered the hallway for a few seconds after she heard the alarm. Her lungs were badly burned in those few seconds and although she was conscious and speaking to firefighters when they initially reached her, her status declined quickly and she died in hospital forty-eight hours later.

[ 19 ] Three other residents of the building were transported to hospital as a result of smoke inhalation injuries. The fire destroyed fourteen apartments. The entire second floor was shut down. Tenants were unable to return to their apartments until 10 months after the fire. The property owner lost substantial rental income, had to hire security to be on site and had to replace doors and repair other damage in an additional sixty apartments.

[ 20 ] By a cruel twist, Ms. Ikkers’ and Ms. Saumur’s apartments were virtually untouched by the fire. The residents of Apartment 221 where the wreath had been hanging and the fire had been started lost everything, except their lives. They are grateful for their lives, although sorrowful.

[ 21 ] The Fire Investigator testified that the three layers of oil based paint on the second floor hallway walls and on the door of Apartment 221 as well as the paper layer bonded to the drywall on the hallway walls all provided additional fuel load for the fire once it was started.

[ 22 ] While all of this tragedy was unfolding, Mr. Issaky had dropped the Bennett brothers off at their home at approximately 5 a.m.

[ 23 ] The next morning at around 10 a.m. on December 24, 2009 he called their home and asked to meet with them there. He arrived a short time later and told Colin Bennett he had learned there had been a fire and it was big. He asked Colin Bennett to be vague when speaking to police. That evening, before the Bennett brothers went to the police station to give their statements, he again suggested that they be vague with police. He was arrested later that evening and charged with two counts of second-degree murder.

[ 24 ] At the time, Mr. Issaky had been subject to bail conditions from October 30, 2009, relating to charges of theft over $5000 stemming from incidents that took place during his previous employment in November and December 2008. In February 2012 he pleaded guilty to one count of theft over, received credit for pre-sentence custody and was ordered to pay restitution of $8500.

[ 25 ] At the time he started the fire Mr. Issaky was, therefore, a relatively youthful offender out on bail in respect of unresolved charges of theft from his employer in 2008.

The Offender

[ 26 ] Mr. Issaky had just turned 23 when he started the fire. He is now 25 years of age. He has been in custody since December 24, 2009, a period of 2 years and 5 months to today’s date.

[ 27 ] Mr. Issaky has not had a completely law-abiding past. In 2008 when he was almost 22 years of age, he stole over $5000 from his employer. One year later at the time of the fire and as referred to before, he was under bail conditions in respect of those outstanding charges. He was convicted after he pleaded guilty to theft in 2012.

INFORMATION CONTAINED IN PARAGRAPH 28 IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, c. 1.

[ 28 ] […]

[ 29 ] In the Presentence Report prepared for sentencing and also in his comments to the Court, Mr. Issaky has repeatedly expressed his remorse for his actions. I accept his words as sincere. He has characterized his actions as “stupid”, and he is correct.

[ 30 ] The Report indicates that Mr. Issaky is the eldest of three children whose parents, when he was three years of age, immigrated to Ottawa from Iran to escape political unrest. He has always lived with his parents and siblings. He married his wife when he was 20 years of age. She joined him in Ottawa the next year and they continued to live at the family residence. They have a 3 year-old daughter.

[ 31 ] Mr. Issaky completed Grade 12. When he was in high school, he achieved success in taekwondo, representing Canada in numerous world-class events in various countries and becoming, at different times, Canadian and world taekwondo champion in 2004 and 2005.

[ 32 ] His work history is lean. After his wife joined him in Canada in 2007 he mostly became a stay-at-home spouse, caring for his daughter while his wife worked days and attended school at night.

[ 33 ] He has no drug or alcohol abuse issues.

[ 34 ] His family and community continue to support him notwithstanding how profoundly he has let them down and failed as a husband and a father.

[ 35 ] During his first year in custody at the Ottawa-Carleton Detention Centre, Mr. Issaky incurred six negative incident reports. He has told the author of the Presentence Report that these were all related to his adjusting to a new and sometimes hostile environment that required he defend himself. He has not incurred any similar reports since 2010. I accept his explanation in respect of that first year in custody.

The Positions of Counsel

[ 36 ] The Crown requests a total sentence for the two counts of manslaughter of 10 years before the deduction of a pre-sentence custody credit. The Crown submits that such a sentence is required to adequately reflect the strong need for denunciation of such a grave and irresponsible act and to deter others who might think it just a harmless joke to start a little fire.

[ 37 ] The Defence requests a total sentence of 5 ½ to 6 years before the deduction of a pre-sentence custody credit, agreeing that denunciation is required but that there must also be a focus on Mr. Issaky’s level of moral fault and the exercise of restraint in the imposition of a first custodial sentence for a relatively youthful offender.

[ 38 ] Counsel agree, as do I, that Mr. Issaky is entitled to a 2 for 1 credit for his pre-sentence custody to date of 2 years 5 months. That credit amounts to 4 years 10 months. This means that Mr. Issaky is deemed to have already served 4 years and 10 months of the sentence to be imposed today.

Analysis of the Facts

[ 39 ] Mr. Issaky was originally charged with two counts of second-degree murder and, instead, has pleaded guilty to two manslaughters, with the Crown’s consent. By these pleas he has not been found guilty of intending to cause death by his dangerous act of lighting the fire and the Crown agrees it is unable to prove the intent required for murder.

[ 40 ] In addition, however, there is also no evidence as to what Mr. Issaky intended that night when he started the fire and left. I agree with the Crown’s submission that what Colin Bennett thought that night is not evidence of what was in Mr. Issaky’s mind at the time he lit the wreath on fire. There is no evidence of Mr. Issaky’s subjective or actual appreciation of the risk of his actions. Instead, by his pleas to the agreed facts, Mr. Issaky accepts that in all the circumstances it was objectively foreseeable that his unlawful act of lighting a fire created a risk of bodily harm beyond trivial or transitory: R. v. Creighton , 1993 61 (SCC) , [1993] S.C.J. No. 91 (SCC), at paras. 77 and 78 . It is on this basis that Mr. Issaky has been found guilty of two counts of manslaughter.

[ 41 ] This issue of there being an objective foreseeability of risk of bodily harm and no evidence of subjective awareness of that risk is a critical issue in determining Mr. Issaky’s level of moral fault. Defence counsel argues that the lighting of the fire was an impulsive, mischievous act and no more, that this was an objectively dangerous act but that there is no evidence that Mr. Issaky had any intention other than committing an idiotic and impulsive prank. I accept this as correct on the evidence.

[ 42 ] This important distinction serves to distance Mr. Issaky from the higher degree of moral fault of the offenders in most of the Crown’s cases where sentences for manslaughter in the range of 10 to 20 years were imposed, at least in large part because of the evidence of actual intent to cause bodily harm: R. v. Roks 2011 ONCA 618 ; R. v. Magno 2011 ONSC 5552 ; R. Ellahib 2008 ABCA 281 ; R. v. Sheets 2005 ABPC 164 ; R. v. Trecartin, [1993] N.B.J. No. 658 (N.B. Q.B.) ; R. v. Quilt , 1984 483 (BC CA) , [1984] B.C.J. No. 1830 (BCCA) (criminal negligence causing death).

[ 43 ] In Roks , the offender had planned to destroy an unoccupied commercial building for insurance purposes. He recruited the fire-setters. He did not set the fire and was not at the scene when an explosion occurred causing fatalities. He was sentenced to 10 years for manslaughter. In Magno , the offender was the owner of that same unoccupied commercial building and the chief instigator of the arson that he planned together with Mr. Roks. He was sentenced to 12 years for manslaughter. By way of contrast, in Mr. Issaky’s case there is no evidence that he acted other than completely impulsively and there is no evidence that he actually intended to cause bodily harm.

[ 44 ] In Ellahib , the offender had planned to firebomb a house in retaliation for a feud with one of the occupants. He hired two others who threw a Molotov cocktail into the home. He was sentenced to 20 years in respect of two counts of manslaughter. By way of contrast again, in Mr. Issaky’s case there is no evidence of any plan to do other than a spur of the moment prank and there is no evidence that he actually intended to cause bodily harm.

[ 45 ] In Sheets , the offender was hired by Mr. Ellahib and was one of the two that threw a Molotov cocktail into a home. He was sentenced to 15 years in respect of two counts of manslaughter. Again, by way of contrast, in Mr. Issaky’s case there is no evidence that he actually intended to cause bodily harm by lighting a fire on the wreath, notwithstanding that it was clearly objectively foreseeable there was a risk of bodily harm because of his actions.

[ 46 ] In Trecartin , the offender had started a fire by using an accelerant in a planned act of revenge. He was sentenced to 10 years for manslaughter. This case is also distinguishable on the same basis as the others, namely that there is no evidence that Mr. Issaky actually intended to cause bodily harm.

[ 47 ] In Quilt , there were two offenders, Mr. Quilt and Mr. Setah, who in an act of retaliation or revenge had poured gasoline around a house and ignited it. They were sentenced to 12 years and 8 years respectively for criminal negligence causing death. This case is distinguishable on the same basis.

[ 48 ] The Crown also relies on R. v. Mason 2011 MBQB 66 , where the offender was given two concurrent life sentences for setting fire to a couch in the suite where he was and everyone else was passed out after a drinking party and then leaving without alerting anyone or setting off the fire alarm. He had serious psychiatric issues and a long and related criminal record. With this history, the primary consideration for sentencing became one of public safety and separating the offender from society. Mr. Issaky does not present anywhere near the high degree of risk that was presented by Mr. Mason.

[ 49 ] I accept, therefore, that these cases imposing sentences in the 10 years to life range are reflective of more aggravating circumstances and more morally blameworthy offenders than in Mr. Issaky’s situation.

[ 50 ] I now turn to a characterization of the facts that serve to mitigate and aggravate sentence to assist in the determination of a fit sentence.

[ 51 ] The mitigating circumstances include Mr. Issaky’s two pleas to unlawful act manslaughter. The strong mitigating force of these pleas is obvious and I am not persuaded in the circumstances of the original charges being for second-degree murder that the guilty pleas should be diluted in their effect because of the passage of time.

[ 52 ] The other mitigating circumstances are Mr. Issaky’s relative youth and his supportive family and community, although as observed below, he has always had that support and it has not deterred him from criminal conduct in the past.

[ 53 ] I accept Mr. Issaky’s expressions of remorse for the deaths of Ms. Ikkers and Ms. Saumur as genuine, however, and I think it reasonable to presume that the 2 years and 5 months he has already been incarcerated have given him some insight into the kind of person he was on December 24, 2009, and to do better. This is his first period of incarceration.

[ 54 ] As a consequence, his prior involvement with the criminal justice system, while concerning, does not cause me to assess Mr. Issaky as posing a significant risk to community safety upon his eventual release from the custodial period imposed today.

[ 55 ] My assessment of the kind of person Mr. Issaky was in 2009, albeit superficial at best but based on the evidence before me, is the following. I understand he comes from a good and hard-working family who are as disbelieving as everyone else as to what happened. As the eldest son of the family, however, the evidence is that he received and took too much from his family, to everyone’s detriment. He appears to have given little in return. His mother and father shared their home with him even as an adult. He did not go out to work every day as all the other adults did in his household including his spouse. Instead, he remained immature, irresponsible and carefree and seemed to have done very little with his life other than to enjoy and live off all that his parents worked so hard to achieve. He allowed himself to be involved in serious criminal misadventures as a youth and then again in 2008, culminating with the most serious in 2009 when he flippantly started the fatal fire. He did all this even with strong family and community support. I agree with the Crown that there is no excuse for Mr. Issaky’s conduct. He was given every chance to succeed but he chose otherwise.

[ 56 ] He is not a young man without abilities. He finished Grade 12, participated in world level sports competitions when he was in high school and has no addictions or mental health issues. He is a young man who enjoys family and community support and has potential. As a consequence, the sentencing objective of rehabilitation is operative in fashioning his sentence.

[ 57 ] Turning to the aggravating circumstances, it is aggravating that at the time Mr. Issaky started the fire he was on bail for outstanding criminal charges and that these had not been his first involvement with the criminal justice system.

[ 58 ] The other aggravating circumstances arise largely out of the tragic circumstances of the fire.

[ 59 ] The most serious aggravating circumstances arise out of the nature of Mr. Issaky’s act, namely its recklessness. It is patently obvious that lighting a wreath on fire that is hanging on a door in an enclosed, carpeted hallway of a high-rise building in the middle of the night when everyone in the densely populated building is sleeping and then leaving before the fire is out, is incredibly dangerous. Rohan Bennett realized this when he told Mr. Issaky to stop playing with the lighter and said, “let’s go”. Colin Bennett realized this when he told Mr. Issaky outside the building that his actions had not been smart and when he told police he thought Mr. Issaky would put the flame out before departing. And yet Mr. Issaky walked past the exit door to deliberately hold a flame to the wreath on Apartment 221; he left without extinguishing that flame and he disregarded the serious risk.

[ 60 ] I agree with the Crown that the obvious objective foreseeability of serious risk is not affected by the chance factors of the paint layers and the paper on the drywall fuelling the fire. Chance factors can always be present in one form or another where fire is concerned and that is precisely why fires are unpredictable and risky, particularly a fire lit inside a building when everyone is sleeping.

[ 61 ] Arising out of the clear objective foreseeability of this risk, I also agree with the Crown, and I do not think Defence counsel disagrees, that Mr. Issaky should have understood at that time, regardless of whether in fact he did understand this at that time, that his action carried with it an obvious risk of bodily harm.

[ 62 ] It is this factor of very obvious foreseeability of risk of bodily harm that, more than any other circumstance, strongly serves to increase Mr. Issaky’s level of moral blameworthiness for the consequences of his actions.

[ 63 ] The gravity of the loss of two lives and secondarily but also importantly, the extensive property damage and dislocation and mental anguish for so many and especially for Mr. and Mrs. Elderkin of Apartment 221 who lost everything, hardly need be mentioned as clearly aggravating factors.

Analysis of Sentencing Objectives

[ 64 ] I return to the fundamental principle of sentencing, that a just and appropriate sentence is one that is proportionate to the gravity of the offence and the level of the offender’s moral blameworthiness for it.

[ 65 ] A fit sentence requires that Mr. Issaky’s level of moral fault be examined so that it can be reflected in his sentence.

[ 66 ] In C.A.M ., at para. 81 , the Supreme Court of Canada has explained the concepts of retribution and denunciation in sentencing, as follows,

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law….A sentence which expresses denunciation is simply the means by which these values are communicated.

[ 67 ] In fashioning an appropriate sentence, the Crown has cautioned against being influenced by all that was missing from Mr. Issaky’s actions when compared to offenders in other arson cases, as opposed to focusing on what he did do. However, in taking into account that there was a lack of planning, an absence of underlying motive of greed or revenge, an absence of actual intention to cause harm and a single, brief and thoughtless act, is to consider Mr. Issaky’s level of moral fault. I accept that each of these missing elements corresponds with the facts and that by their absence Mr. Issaky’s degree of moral blameworthiness is lower than if any of them had been present.

[ 68 ] The objectives of Mr. Issaky’s sentence are to denounce his conduct and deter him and others from such irresponsible and dangerous acts. Rehabilitation is also applicable.

[ 69 ] Mr. Issaky’s sentence is to be a term of incarceration that reflects the extreme gravity of his actions because of their obvious and inherent dangerousness resulting in devastating consequences, undertaken as an irresponsible prank. For this kind of obviously dangerous and mindless prank, a penitentiary term is required. But for Mr. Issaky’s pleas, his relative youth, his limited record and his potential to become a contributing member of society, I would have imposed a term in the range of 8 to 9 years incarceration before the deduction for pre-sentence custody as a term that would have appropriately reflected the concepts of retribution and denunciation in all of the circumstances.

[ 70 ] However because of Mr. Issaky’s pleas, his youth and his prospects of rehabilitation, I would reduce that sentence to one in the range of 7 years’ incarceration. This is a significant sentence for an inherently dangerous act committed by way of a mindless prank by a 23 year-old man who is serving his first period of incarceration. This is a sentence in my view that adequately condemns the gravity of Mr. Issaky’s crimes and appropriately reflects his degree of moral responsibility for the tragedies he caused.

[ 71 ] It is not a sentence that compensates in any way or to any degree for the loss of two valuable lives or for all the associated grief and trauma caused by the fire. It is simply a sentence that is fashioned to reflect our society’s denunciation of Mr. Issaky’s conduct in all of the circumstances.

[ 72 ] Having struggled with and arrived at the determination that a sentence in the range of 7 years is an amount of incarceration that is just and appropriate, I have gone on to consider the deduction of pre-sentence custody.

[ 73 ] Mr. Issaky has already served the equivalent of 4 years 10 months. This means that for a 7 years’ sentence he would have 2 years plus 2 months left to serve of a 7 years’ sentence. This brings into consideration the availability of probation. Probation is only available under our correctional laws if Mr. Issaky were to be sentenced to a further period of incarceration of 2 years or less, in addition to his 4 years 10 months already served.

[ 74 ] I am of the view that a further 2 years of incarceration rather than a further 2 years 2 months of incarceration, so as to allow for a 3 years period of probation after incarceration, would enhance the paramount sentencing objectives of denunciation and deterrence in all the circumstances. Mr. Issaky would then be supervised through a combination of incarceration and probation for a further 5 years.

[ 75 ] To achieve 5 years of further supervision by, instead, sentencing Mr. Issaky to a further 5 years of incarceration, along the lines of the Crown’s position on sentencing, would have the effect of placing Mr. Issaky in the positions of Messrs. Roks, Magno, Sheets, Trecartin and Quilt, as referred to above. However, Mr. Issaky does not share their high degree of moral culpability for his crimes of manslaughter, so that a 10 years’ sentence of incarceration in all of his circumstances would be unduly harsh.

[ 76 ] Instead, by the addition of probation, Mr. Issaky will be subject to supervision by the criminal justice system for a further period of 5 years, divided between 2 further years of custody and 3 years under probation. That is the direction I take, and for those reasons.

[ 77 ] I stress that Mr. Issaky’s punishment is not a 2 years’ sentence of incarceration for causing these two deaths. That would not be a fit sentence in all the circumstances. His sentence, instead, is one that is just shy of 7 years’ incarceration for each count of manslaughter so as to allow the adding on of a three-year probationary period. In the final result and very importantly, it is a sentence that supervises Mr. Issaky for a total period of 9 years 10 months.

[ 78 ] Mr. Issaky, please stand.

[ 79 ] I sentence you for the charge of manslaughter causing the death of Margaret Ikkers to a period of 6 years 10 months incarceration. I sentence you for the charge of manslaughter causing the death of Lillian Saumur to a concurrent period of 6 years 10 months incarceration. After you have completed your period of incarceration, you are placed on probation for a total period of 3 years in respect of the two manslaughter offences.

[ 80 ] I direct that your warrant of committal read as follows so as to reflect the time in custody that you have already served. For the offence of manslaughter causing the death of Margaret Ikkers, your sentence is 2 years plus 4 years 10 months of pre-sentence custody credit. For the offence of manslaughter causing the death of Lillian Saumur, your sentence is 2 years concurrent plus the 4 years 10 months of pre-sentence custody credit already counted.

[ 81 ] There are three additional Orders that follow.

[ 82 ] The first is a DNA Order requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage.

[ 83 ] The second is a section 109 Order under the Criminal Code prohibiting you for your lifetime from possessing any firearm, ammunition or any other item referred to in that section.

[ 84 ] The third is a Probation Order for a period of three years with the following conditions. The mandatory conditions apply and I direct they be reviewed with you. The other conditions are the following and they are meant to serve as additional punishment, and for rehabilitative purposes to assist you in becoming a contributing member of society. Within two working days of your completion of your term of incarceration you are to report to a probation officer and thereafter for the next three years you are to report whenever and wherever as that officer requires. You are not to attend within 500 meters of 1695 Playfair Avenue. You are to abstain absolutely from the purchase, possession and consumption of alcohol and non-medically prescribed drugs. You are to obtain and maintain regular employment and/or attend an educational facility, all as directed by your probation officer. You are to sign all releases that may be necessary so as to provide proof of your compliance with the probation terms and you are to provide such proof to your probation officer as he or she may request. And by way of a small gesture of restitution, you are to perform community service work in the total amount of 200 hours. You are to commence that work at a time as directed by your probation officer and at a rate of at least 10 hours each month. You are to complete all 200 hours of community service work before the expiry of two years of your three-year probationary term. I caution you that if you do not comply with any of your probation terms, you will be liable to being charged with the criminal offence of breach of probation.

The Hon. Madam Justice L. Ratushny

Released: May 25, 2012