COURT FILE NO.: 13-50000-4690000
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
BILAL DEEB
L. Bird, for the Crown
Andrew Furgiuele, for Mr. Deeb
HEARD: December 10, 2013
KElly J.
Reasons for SENTENCE
[1] Mr. Bilal Deeb has been convicted of various offences resulting from an attempt to murder Mr. Jesse Kay using a firearm. He now comes before me for sentencing.
[2] Crown Counsel seeks a sentence of life imprisonment. Counsel for Mr. Deeb submits that the appropriate sentence is in the range of 16 to 18 years in prison. For the reasons set out below, I find that the appropriate sentence is life imprisonment. What follows are my reasons.
The Facts[1]
[3] On November 12, 2011, in the afternoon, Mr. Kay was on a TTC bus travelling on Eglinton Avenue in the City of Toronto. While on the bus, he noticed two men get on board. He immediately recognized the second of the two men as Mr. Deeb. Mr. Kay knew Mr. Deeb from the neighbourhood and as a result of a prior altercation with him five years prior.
[4] As the two men approached and passed Mr. Kay on the bus, they gave him a dirty look while nodding their heads up and down. No words were exchanged between Mr. Deeb and Mr. Kay.
[5] Mr. Kay got off the bus at the intersection of Blackthorn and Eglinton Avenues. Almost immediately, he heard footsteps behind him. He turned. Mr. Kay saw Mr. Deeb standing about two feet away from him and pointing a firearm at his head. Mr. Kay raised his hand to protect himself but was shot three times. One of the bullets entered Mr. Kay’s spinal cord, rendering him a quadriplegic. He is paralyzed from the neck down and he is confined to a wheelchair.
[6] Following a trial before me sitting without a jury, Mr. Deeb was convicted of the following offences:
a. Attempt murder contrary to s. 239(1)(a.1) of the Criminal Code;[2]
b. Discharge firearm with intent to endanger life contrary to s. 244(2)(b) of the Criminal Code;
c. Possession of a loaded prohibited or restricted firearm while not authorized to do so contrary to s. 95(2)(a) of the Criminal Code; and
d. Failure to comply with his recognizance which prohibited him from possessing any weapons contrary to s. 145(3)(a) of the Criminal Code.
Analysis
[7] The fundamental purpose of sentencing is to contribute respect for the law and the maintenance of a just, peaceful and safe society by the imposition of sanctions that have one or more of the sentencing objectives referred to in s. 718 of the Criminal Code. The objectives set out in that section include denunciation, deterrence, rehabilitation, the separation of offenders from society where necessary and the acknowledgement of the harm that criminal activity brings to our community.
[8] Bearing the purposes of sentencing in mind, I must also take into consideration the following: that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[9] I have considered the various cases provided by Counsel in support of their positions. Counsel for Mr. Deeb provided the court with the case of R. v. Brook.[3] In that case, Mr. Brook was convicted of attempted murder and other offences following a jury trial. The facts are that Mr. Brook (a drug dealer) shot Mr. Hill (another drug dealer) 15 to 20 times. Mr. Brook had a significant criminal record (15 convictions for breaching court orders and 8 convictions for violent offences). He had little education and was the father of a three year old child.
[10] Although Sosna J. found that the offences committed by Mr. Brook were serious, he declined to impose a sentence of life imprisonment for attempted murder. He found that the victim had suffered injuries that were not life threatening and accepted the statement from the victim who said that his life is “going well”. He also found that because the shooting occurred in a rural location, no third parties were at risk. Mr. Brook was sentenced to 15 years for attempted murder. These factors can be distinguished from that of Mr. Deeb: Mr. Kay’s injuries were life threatening, his life is not “going well” and the shooting occurred in a busy street in Toronto.
[11] Another case relied upon by counsel for Mr. Deeb is that of R. v. Tan.[4] Mr. Tan’s romantic advances were repelled by the victim following which he bound her hands and feet and covered her mouth with tape. He made her lie down in a car while brandishing a knife; he drove three hours to Bancroft; he tried to sexually assault her; put her in a chokehold; slit her throat with a knife; kneeled on her back; stabbed her collapsing her lung; stole things from her and then covered her with a tarp leaving her to die. The victim was left psychologically and physically scarred.
[12] Mr. Tan pleaded guilty to attempted murder and other offences, including sexual assault. Mr. Tan was a first offender, pleaded guilty early in the case and spared the need for the victim to testify. He showed remorse to the victim and her family during the sentencing proceeding. He was sentenced to 15 years which was upheld at the Court of Appeal. The mitigating factors relevant in Mr. Tan’s case are non-existent in Mr. Deeb’s. Mr. Deeb is not a first offender, he did not plead guilty and Mr. Kay testified.
[13] In a case somewhat similar to Mr. Deeb, Mr. Dao Nguyen was sentenced to 11 years in custody for attempted murder following a trial with a judge and jury.[5] After a minor altercation with the victim, Mr. Nguyen returned to a karaoke bar with two friends. In front of the victim’s wife and others, Mr. Nguyen shot the victim 6 or 7 times at close range shooting him in the face, neck and chest areas.
[14] Mr. Nguyen had a criminal record for serious offences involving marijuana at the time of sentencing. The court referred to the lasting physical and psychological effects from the shooting but did not specifically articulate them save and except for saying the victim suffers from depression, anxiety and sleep problems that affect him daily. The injuries do not appear to be as significant as those suffered by Mr. Kay, but I stress to add that the sentence of 11 years was a joint position submitted to the Court by two very experienced counsel.
[15] Another case relied upon by Counsel for Mr. Deeb is that of R. v. Mann.[6] In that case, Mr. Mann pleaded guilty to charges of robbery, wounding, committing an indictable offence while disguised and possession of a stolen vehicle. Mr. Mann was 17 years of age at the time he drove into a plaza, entered a store with a mask while carrying a loaded gun. He shot the employee who had complied with his request to provide him with cash. The victim was left paralyzed from the neck down. Mr. Mann was sentenced to 16 years in custody.
[16] Although the injuries were serious and Mr. Mann was young (similar to Mr. Deeb), Mr. Mann pleaded guilty to the offences, sparing the necessity of the victim testifying which is an extreme mitigating factor that is not present in the case before me. He had some prospect at rehabilitation (although “dim”) as he had taken some courses while incarcerated which is not relevant here. Lastly, he was not convicted of attempt murder as Mr. Deeb has been.
[17] The last case that I will refer to as provided by Counsel for Mr. Deeb is R. v. Situ[7]. Mr. Situ received a sentence of 15 years for shooting the victim. Mr. Situ committed this offence while serving a conditional sentence for aggravated assault. He shot the gun first at the victim’s body and then at his neck, shattering his vertebrae and leaving him a quadriplegic. Mr. Situ was young and there were few other mitigating factors.
[18] The case of R. v. Dane Brown[8] provided by Crown Counsel is somewhat similar to the case before me. In that case, Mr. Kevin McLeish was shot six times at point blank range in a parking lot at 7:00 p.m. on June 14, 2005. Mr. McLeish had been walking through a parking lot on his way to visit a friend. He saw his shooter, Mr. Brown, with another male. He knew Mr. Brown casually and greeted him by tapping him on the shoulder. Mr. Brown appears to have taken offence to this and after an exchange of words with Mr. McLeish, Mr.\ Brown produced a handgun. He shot Mr. McLeish while standing and when Mr. McLeish fell to the ground, he shot him three or four more times, mainly in the back.
[19] Similar to Mr. Kay, Mr. McLeish miraculously survived, but sustained serious injuries. He is now paralyzed from the waist down and confined to a wheelchair. Mr. Brown was a repeat offender (12 prior convictions: 6 as a youth and 6 as an adult) and the father of a young child. There was no evidence of any rehabilitative potential although there was fresh evidence of academic success made during incarceration. Mr. Brown was sentenced to life imprisonment and various other concurrent sentences that arose from the same incident.
[20] The case of R. v. Jordan[9] is also persuasive. On February 25, 2000 at approximately 8:00 p.m., Mr. Jordan got into the back seat of a car in a parking lot at Jane and Finch Avenues. Mr. Grant, who was in the front passenger seat, turned to face Mr. Jordan who pointed a firearm at him while telling him not to move. A Mr. Sole returned to the car and sat in the driver’s seat. As he got in, Mr. Jordan shot Mr. Sole 4 times then turned the gun on Mr. Grant and shot him 3 times. There was no apparent motive for the shooting. Mr. Sole recovered from his injuries, but Mr. Grant did not. He was rendered a quadriplegic as a result of the shooting. Mr. Jordan was convicted of two counts of attempted murder.
[21] At the time of sentencing, Mr. Jordan was 25 years of age. He had two sets of prior convictions for much less serious offences and ones that did not involve acts of violence. He had no history of employment. The factors considered by Nordheimer J. in sentencing are similar to those to be considered by me in sentencing Mr. Deeb. Nordheimer J. sentenced Mr. Jordan to life imprisonment.
[22] The cases relied upon by both counsel demonstrate that sentencing is not an exact science. As Doherty J. noted in R. v. Hamilton:[10]
Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender.
[23] While I accept the principle that where “the offender has not previously been to the penitentiary … the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives”, I find that this is a case where such a principle does not apply because it is a very serious offence involving serious violence.[11]
[24] I am persuaded that life imprisonment is appropriate based upon the reasoning of Doherty J.A. in the case of R. v. Varga[12] where a life sentence for attempted murder was upheld. In that case, an innocent bystander was shot in the course of a drug dealer’s dispute. In describing the moral culpability of Mr. Varga, Doherty J.A. said the following:
The slight tilt of Mr. Suzana’s head was literally the difference between a murder and an attempted murder. … [The offender] stands convicted of attempted murder rather than murder by pure luck. His culpability is hardly distinguishable from that of a murderer.
[25] Similarly, Mr. Deeb’s culpability is no different than that of a murderer.
The Mitigating Factors
[26] There are very few mitigating factors for consideration in sentencing Mr. Deeb, but they include the following:
a. Mr. Deeb is young. He is 21 years of age.
b. It appears that Mr. Deeb has the support of his family who were present during the court proceedings. Mr. Deeb’s father, who appears to have provided support during his other court proceedings, is now deceased. I am advised, they were very close.
The Aggravating Factors
[27] I consider the following to be aggravating factors when considering the appropriate sentence for Mr. Deeb:
a. Mr. Deeb was on a TTC bus with a firearm. Such action shows a total contempt for the lives and safety of others.
b. Mr. Deeb shot Mr. Kay at point blank range in midday at a busy intersection in Toronto. The shooting occurred very close to a TTC stop and at an intersection across from a mall. There were a number of people in the area at the time of the shooting. Accordingly, there was a very real possibility that other innocent persons could have been injured or killed by Mr. Deeb’s conduct.
c. There does not appear to have been any motive for such a senseless shooting. It appears that the shooting was planned while Mr. Deeb was on the bus and immediately before it occurred – perhaps for an altercation that had occurred five years prior.
d. Mr. Deeb shot Mr. Kay several (3) times. Mr. Kay was unarmed at the time and could do nothing to defend himself.
e. Mr. Deeb has a criminal record which consists of 7 entries:
Date
Offence
Sentence
March 12, 2008
Carrying a concealed weapon.
Probation for two years and a mandatory prohibition order pursuant to s. 51(1) of the YCJA.
Robbery.
July 23, 2008
Fail to comply with recognizance.
Probation for one year.
Fail to comply with disposition.
Nov. 20, 2008
Robbery
Time served (110 days) together with probation for 12 months and a mandatory or discretionary prohibition order pursuant to s. 51 of the YCJA.
May 28, 2012
Possession of marijuana.
Time served (8 days) plus 1 day.
Assault.
f. The circumstances of the March, 2008 conviction for robbery are that in 2007 and when Mr. Deeb was 16 years of age, he and a co-accused robbed 6 students during a school lunch break. The violence escalated from there.
g. The circumstances giving rise to the conviction in November, 2008 for robbery are that during a house party, Mr. Deeb, together with others, forced their way into a residence in Toronto. They ransacked the residence, attacked an occupant and stole two pellet guns. Mr. Deeb returned and demanded the victim hand over money and marijuana. Mr. Deeb threatened the victim saying that if he got arrested, he would kill the victim.
h. The fact that Mr. Deeb has been incarcerated previously and served other sentences for crimes of violence demonstrates that such sentences have neither rehabilitated nor deterred him from resort to violence. With the conviction for attempted murder by shooting Mr. Kay with the intention of killing him, Mr. Deeb’s resort to violence has only escalated.
i. Further, there are convictions for failure to comply with his recognizance and disposition showing a wanton disregard for court orders.
j. At the time of these offences, Mr. Deeb was on a recognizance of bail. He was required to be under house arrest unless in the company of his surety or other circumstances. Being armed on a TTC bus with a handgun and using it to shoot someone at point blank range on a Saturday afternoon was not one of the exceptions for being out of his home outside the presence of one of his sureties.
k. Mr. Deeb’s recognizance of bail also ordered that he not to be in possession of a firearm. Again, this is a term he clearly breached.
l. It is an understatement to suggest that Mr. Kay’s quality of life has been significantly altered in a negative way. His life was turned upside down by 3 shots from a gun on a Saturday afternoon. He was in the prime of his life, the proud father of a son and a reliable husband who was steadily employed. His life has changed dramatically. He has lost the companionship of his wife and he is unable to embrace his son. He cannot even do the most mundane of things like scratch his nose when it itches. As he so eloquently said in his Victim Impact Statement: “My body is now my prison”.
m. Mr. Kay’s family has also felt the impact of these offences. As his sister Ms. Dakota Kay said when speaking to Mr. Deeb: “You took a young man from his home, his independence, his family. You have stolen his freedom, his manhood, his fatherhood and his livelihood.” As Mr. Dustin Aliberti said to his brother: “[It] is so enraging to see your future so callously snatched away”. And lastly, as Mr. Kay’s father said: “There are no words. There are not enough description of pain felt. [sic]”.
[28] There is always a risk that when considering a sentence that is appropriate, the impact of the offence on the victim will overwhelm other relevant sentencing principles. In determining an appropriate sentence here, while I obviously take into account the impact on the victim, I am mindful that it cannot overtake my task in crafting an appropriate sentence which requires consideration of all of the relevant sentencing principles.
[29] Crown Counsel has submitted that Mr. Deeb is a member of a street gang – the Eglinton West Crips. In support of this she has filed material showing various pieces of graffiti from jail cells occupied by Mr. Deeb. The letters “EWC” and the word “BEAMZ” were scratched in the cell. “EWC” appears to be a reference to the Eglinton West Crip gang and BEAMZ appears to be Mr. Deeb’s nickname. There was other graffiti of a similar nature found in other cells occupied by Mr. Deeb at various times including a depiction of a three point crown which is the common symbolic identifier of the Crip nation.[13]
[30] There were also photographs of certain graffiti found after Mr. Deeb’s conviction in July, 2013. Again, it shows the three point crown, refers to an address where Mr. Deeb lived prior to being incarcerated and shows a revolver with a hand wrapped around it. One piece of graffiti shows a bullet leaving the handgun and about to enter the head of a person etched on the wall in the cell.
[31] Also provided to the Court was a photo of Mr. Deeb’s left arm taken on November 26, 2010. The arm has various tattoos on it, including a three point crown (the Crip nation symbol); the letters E-W-C on each point specifying this particular Crip set as the Eglinton West Crips and RIP FROST which is paying homage to an Eglinton West Crip member, Mr. Stephen Barton who was also known as “Frost”. Mr. Barton was murdered during a shooting on Eglinton Avenue West just east of Keele Street.
[32] Lastly, there were various lyrics and letters that were put before the Court for sentencing. It was admitted that one of the writings entitled “Street Life” was authored by Mr. Deeb. It depicts the three point crown, refers to guns, drugs, and “thinkin did that nigga deserve gettin shot” [sic] amongst other things.
[33] This additional evidence tendered during the sentencing proceeding is troubling. It would support the conclusion that Mr. Deeb is in fact an active gang member entrenched in a lifestyle directed to the commission of criminal offences. However, Mr. Deeb’s apparent association with the Eglinton West Crips does not factor into why I have found that the appropriate sentence here is one of life imprisonment. Even without such a submission or evidence from which inferences can be drawn about Mr. Deeb’s involvement in the Eglinton West Crips, this Court is of the view that the circumstances of Mr. Deeb’s crime here and his history of offending is of such a character that the public can only be protected if Mr. Deeb receives a sentence of life imprisonment.
What is the appropriate sentence?
[34] I am of the view that the objectives of denunciation and deterrence are of primary importance in this case given the circumstances surrounding it. Gun violence is rampant in the City of Toronto and such violence continues to escalate. It is obvious that our community is concerned with such crime. Society needs to be protected from Mr. Deeb.
[35] The circumstances of this offence demonstrate the devastating consequences that can be inflicted on a person who is a son, brother, husband and father. Mr. Kay will have to deal with his diminished quality of life due to the brutal and senseless acts of Mr. Deeb. It was a vicious attack that has altered the lives of Mr. Kay and his family forever. Mr. Kay is confined to a wheelchair and paralyzed from the neck down. Such a shooting was utterly senseless and unprovoked. The shots were fired at point blank range. There has been no explanation provided for Mr. Deeb’s actions.
[36] The offence was a brutal one, inflicting gratuitous violence on an innocent person. Based upon Mr. Deeb’s history, he is unlikely to be deterred or rehabilitated. He has violated his bail in committing these offences and has two entries on his criminal record for failing to comply with previous court orders. Despite having been incarcerated in the past, he has not been deterred in his violent behaviour and it has only escalated. The public must be protected from Mr. Deeb and it must be demonstrated to other like-minded individuals that resorting to the use of firearms in broad daylight in a Toronto city street will not be tolerated. Such violence to innocent Torontonians must be stopped.
[37] I recognize that life imprisonment is a significant jump from Mr. Deeb’s previous sentences but it is my view that the circumstances of this offence are so vile that the maximum sentence can be “justified as appropriate under ordinary sentencing principles”.[14] In my view, the sentence of life imprisonment is directly proportionate to the circumstances of this offence. I find such a sentence is neither harsh nor excessive despite Mr. Deeb’s young age.
[38] As a result of the above, Mr. Deeb’s criminal record will reflect the following:
a. Attempted murder: life imprisonment.
b. Discharge firearm with intent to endanger life: stayed as per R. v. Kienapple[15];
c. Possession of a loaded prohibited or restricted firearm while not authorized to do so: 3 years concurrent reflecting time served of 25 months; and
d. Failure to comply with his recognizance which prohibited him from possessing any weapons: 18 months concurrent.
Should Mr. Deeb’s parole be delayed?
[39] Crown Counsel has urged that the Court make an order pursuant to s. 743.6 of the Criminal Code that Mr. Deeb’s parole be delayed for 10 years. I recognize that delaying parole in criminal law is a special and additional form of punishment and it may be entirely reasonable in these circumstances. However, I am of the view that the imposition of such an additional punishment would be crushing in the circumstances. Accordingly, I decline to order that Mr. Deeb’s parole eligibility be delayed – that will be a matter for the Parole Board to decide.
The ancillary orders[16]:
[40] In addition, the following ancillary orders are granted:
a. An order preventing Mr. Deeb from possessing any prohibited firearm, weapon or ammunition for life pursuant to s. 109 of the Criminal Code.
b. l,That Mr. Deeb provide a sample of his DNA pursuant to section 485.051 of the Criminal Code.
c. That Mr. Deeb have no contact directly or indirectly with Mr. Kay nor any member of his family and Mr. Marcus DaSilva pursuant to s.743.21 of the Criminal Code.
Kelly J.
Released: December 20, 2013
COURT FILE NO.: 13-50000-4690000
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BILAL DEEB
reasons for SENTENCE
Kelly J.
Released: December 20, 2013
[^1]: The facts of this incident were more fully set out in my reasons for judgment at paras. 1-3.
[^2]: R.S.C., 1985, c. C-46
[^3]: https://www.canlii.org/en/on/onsc/doc/2012/2012onsc184/2012onsc184.html
[^4]: https://www.canlii.org/en/on/onca/doc/2008/2008onca574/2008onca574.html
[^5]: See: R. v. Nguyen, 2008 31410 (ONSC)
[^6]: https://www.canlii.org/en/on/onca/doc/2000/2000canlii22278/2000canlii22278.html
[^7]: [2006] O.J. No. 1990 (S.C.)
[^8]: [2007] O.J. No 5659 (S.C.J.) and https://www.canlii.org/en/on/onca/doc/2009/2009onca563/2009onca563.html
[^9]: Unreported, November 28, 2003 (Ont. S.C.J.) and Unreported, April 27, 2005 (Ont. C.A.)
[^10]: https://www.canlii.org/en/on/onca/doc/2004/2004canlii5549/2004canlii5549.html
[^11]: See: R. v. Borde (2003), https://www.canlii.org/en/on/onca/doc/2003/2003canlii4187/2003canlii4187.html and R. v. Priest (1996), https://www.canlii.org/en/on