Her Majesty the Queen v. Surar Ayad and Rashad Mohammad Haqani, 2012 ONSC 883

COURT FILE NO.: 10-A10698

DATE: 2012-06-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

James Cavanagh, for the Crown

• and -

SURAR AYAD and RASHAD MOHAMMAD HAQANI

Sarah Saad, for the Defendant AYAD,

Kimberly Hyslop for the Defendant HAQANI

Defendants

HEARD: April 19, 2012

REASONS FOR SENTENCE

T.D. RAY J.

1. Overview:

1The defendants were convicted February 6, 2012 (2012 ONSC 883) of the following count following a four day trial:

That the said Surar AYAD & Rashad Mohammad HAQANI, on or about the 8th day of February in the year 2010 at the City of Ottawa In the East Region did rob Brandon Clouthier, contrary to section 344, subsection (l) of the Criminal Code.

They robbed the complainant of his IPhone during the lunch period at Bell High School, Ottawa.

2. The Facts:

(a) Circumstances of the Offence

2The complainant was a fifteen year old Grade 9 student at Bell High School. The defendants were eighteen at the time and in Grade 12. The defendants approached the complainant on February 8, 2010 at noon while he was in the cafeteria line. The defendants walked him outside. Mr. Haqani shoved him up against the wall and forcibly took his IPhone and handed it to Mr. Ayad. Mr. Haqani also took Mr. Clouthier’s wallet and unsuccessfully tried to stop Mr. Clouthier from grabbing it back. Mr. Haqani told the complainant not to tell anyone. The IPhone had been a birthday gift two days earlier. Its value was $730.00.

(b) Circumstances of the Offenders

3SURAR AYAD is 20 years old and according to a pre-sentence report is unemployed but has worked in the fast food industry. A letter from an employer at KFC says that he has worked at the KFC outlet since February, 2012, and speaks in glowing terms of his work ethic. His counsel says he is now a shift supervisor and that it is a permanent fulltime job. He graduated from high school in June, 2011 after attending several schools where he had been suspended on multiple occasions for absenteeism and behavioural issues. His marks were poor. He lives at home with his parents and siblings. None of them were in court. Counsel said that his brother, his surety, had to work, as did his mother. The PSR reports that his brother says he has distanced himself from a negative peer group and spends most of his time at home with his family. Mr. Ayad has been convicted of three offences since the current robbery offence. Both the offences and the convictions occurred after the current robbery offence. They include obstruct a peace officer and failure to comply for which he received a suspended sentence and 12 months probation plus 75 hours community service (February 28, 2012); a further obstruct a peace officer and possession offence for which he received one day concurrent on the obstruct charge and 90 days pre-sentence custody plus one day jail and one day concurrent, as well as a 10 year weapon ban (October 13, 2011); and finally a resist a peace officer, failure to comply with a recognizance, and possession of crack cocaine for which he received 15 days jail, 15 days concurrent, and 22 days pre-sentence custody and 22 days concurrent.(January 23, 2012). Mr. Ayad told the PSR supervisor that until June 2011 he was a regular user of marijuana. The PSR recommends certain conditions in the event that I consider probation appropriate: to include counselling for substance abuse and anti-criminal thinking.

4RASHAD MOHAMMAD HAQANI is 20 years old and is registered in an apprentice program in the Labourers’ Union. He produced a training record showing that he had completed courses in May and June, 2011; and apparently intends to take the next step in the training in May, 2012. He has worked 5 days over the past 12 months in construction and has worked some days in a fast food restaurant. The presentence report describes three charges of failing to comply plus obstructing a police officer, dated July 25, 2011 (fined $550), November 13, 2011 ($100), and March 7, 2012 (6 days custody), respectively. He told the PSR supervisor that his high school marks were in the B range, but that he did not complete high school. On the advice of his lawyer, he refused to release information concerning his schooling to the supervisor. His lawyer explained that that was because they considered the information would not be helpful to him. His girlfriend is three months pregnant. Neither the girlfriend nor members of his family were in court. It would appear from the PSR that Mr. Haqani has kept his parents in the dark about his lifestyle, his associations and his girlfriend.

(c) Impact on the Victim and/or Community

5It goes without saying that a robbery is a frightening event that in many cases is life altering because of the inherent violence involved. The fact that this robbery took place in a high school by students during the school day is hard to believe. Our schools are meant to be safe places where our children can spend their days expanding their knowledge and learning life skills. To an extent our schools are a microcosm of our community. The students reflect the values and culture of those who live in the community. The difference is that we as a society place a special premium on our schools being a safe environment. An offence of this nature causes parents and school officials alike to take stock. In particular, Mr. Clouthier, the victim, showed enormous courage in confronting two bullies who robbed him. However, that too left its mark on him as a difficult and unnecessary experience.

3. Legal Parameters:

6The penalty for robbery is five years if a first offence; and seven years for a subsequent offence.

4. Positions of Crown and Defence:

7The Crown’s position is that both Mr. Ayad and Mr. Haqani should receive 2 to 4 months in jail followed by 18 months probation. His position is that while the defendants are to be treated as first time offenders, their post offence record is relevant to countering any mitigating factors; as well as going to their character. Robbery in a school must be treated seriously. He also suggests a compensation order for the IPhone.

8The defence position is that a period of probation is required because of their relative youth, and because they are to be treated as first time offenders. They both contend that there was no violence associated with the robbery, and no evidence of planning.

9Ms. Saad on behalf of Mr. Ayad contends that her client was the secondary participant in the robbery in that he played no role in pushing or interacting with the victim. He complied with his probation conditions to date except for completion of the community service requirement. Mr. Ayad served 33 days of pre-trial custody. She contends that his employment situation is an important consideration in the context of his professed intention to change his ways.

10Ms. Hyslop on behalf of Mr. Haqani reminds us that his lack of remorse is not an aggravating factor, and that we should be comforted by the fact that 9 months have passed since he committed an offence.

11Neither counsel oppose a compensation order.

5. Case Law:

12All counsel referred me to a number of relevant authorities concerning robberies of IPhones, youthful offenders and first time offenders.

6. Mitigating and Aggravating Factors:

13Mitigating factors are to be applied if found on a balance of probabilities while aggravating factors are to be considered if found beyond a reasonable doubt.

14The relative youth and the first time offender status of the defendants are mitigating factors. I agree that the post offence offences of the defendants are to be weighed in the context of their character and rehabilitation. They are relevant to a consideration, not of the severity of the penalty, but the appropriateness of the penalty. Neither of them had anything to say at the conclusion of counsels’ submissions. An absence of remorse is not an aggravating factor.

7. Principles of Sentencing:

15The law establishes a number of principles for the imposition of sentences. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

16Sentences should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances.

17The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justice sanctions that have one or more of the following objectives:

i. to denounce unlawful conduct;

ii. to deter the offender and other persons from committing offenses:

iii. separate offenders from society, where necessary;

iv. to assist in rehabilitating offenders;

v. to provide reparations for harm done to victims or community; and

vi. to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

18The process of analysis requires that the offence first be placed in a category. Secondly, the range of sentences is identified for that category to referenced texts and judicial decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances.

8. Reasons:

19While general deterrence and denunciation are important factors, specific deterrence and rehabilitation are the driving principles in this case. The tragedy is that both defendants were brought to Canada by parents looking for a better life. By all accounts, the families of Mr. Haqani and Mr. Ayad are happy and hard working Canadians who are flourishing in this new country. Messrs Haqani and Ayad must be an enormous disappointment to them. The defendants are now convicted robbers, and will bear the stain of that label for the rest of their lives. They both have choices. While it is certainly open to me to impose a jail term as the appropriate penalty, it is also open to me to impose a lengthy period of probation. Some might be comforted by the imposition of a jail term on these two defendants; and rightly so. However, a forced period of association with known offenders may well impede new lifestyle choices. I would have been more certain about probation instead of jail, if there were evidence of some redeeming factors that would give me some assurance that they would use the probation period as an opportunity to choose to change their lifestyle to something other than petty small time criminals. On balance, I consider that an enforced period of disassociation with known offenders to be of more help in assisting them to choose to change their ways.

20A lengthy probationary period with strict conditions will either support a new life style or it will expose them to serious penalties for breaches of those conditions. That too will be their choice. A condition of restitution of the cost of the stolen phone gives them yet a further connection between their criminal conduct and the victim.

21If they are successful in completing their probationary period and the conditions, then they will have demonstrated their capacity and perseverance to make something of their lives; otherwise, they will find themselves doing serious jail time.

22A sentence of 3 years probation is imposed with conditions as follows:

i. not to associate with known offenders. The exception for this provision applies to Mr. Surar Ayad. He may associate with his brother Samir Ayad.

ii. to look for and maintain employment,

iii. to abstain from the consumption of alcohol and drugs,

iv. to reside at an address and with persons approved by the probation supervisor,

v. to take whatever training or counselling as may be recommended by the probation supervisor,

vi. To make restitution to Brandon Clouthier in the amount of $350.00 by each of Mr. Haqani and Mr. Ayad in accordance with S. 731, C.C.C.

9. Ancillary Orders:

23Weapons prohibition for 10 years.

24DNA order.

10. Final Decision

25Mr. Haqani - Count #1 -Three years probation with the described conditions plus ancillary orders.

26Mr. Ayad – Count #1-Three years probation with the described conditions plus ancillary orders.

Honourable Justice Timothy Ray