NEWMARKET

COURT FILE NO.: CR-11-01457

DATE: 20140228

CORRECTED DATE: 20140501

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAND MOHAMAD

Defendant

P. Westgate/R. DeChellis, for the Crown

R. Tomovski, for the Defendant

HEARD: September 6, 2013

Corrected decision: The text of the original Ruling was

Corrected on May 1, 2014 and the description of the correction

is appended.

RULING #5 – DETERMINATION OF PERIOD OF PAROLE INELIGIBILITY

(s.745.4 CC)

McISAAC J.

[1] These are my formal reasons for imposing a 16-year period of parole ineligibility following Mr. Mohamad’s jury finding of guilt for second degree murder. He had been originally charged with first degree murder in relation to the shooting death of Arash Bakhtaryani but he was found not guilty of that offence.

[2] In assessing the period of parole ineligibility, s.745.4 of the Criminal Code requires that I consider the following factors:

• the character of the offender;

• the nature of the offence and the circumstances surrounding its commission; and

• the recommendation of the jury made pursuant to s.745 2 C.C.

POSITION OF THE PARTIES

[3] The Crown submitted that a period of 18 years’ parole ineligibility should be imposed in light of Mr. Mohamad’s commitment to a criminal lifestyle including the routine “packing” of loaded handguns. On the other hand, Mr. Tomovski suggests that there should be no increase of the ten year minimum period emphasizing the modest jury recommendation, the remorse expressed by his client and the fact that this case involves a situation of excessive self-defence.

THE CHARACTER OF THE OFFENDER

[4] Mr. Mohamad’s criminal record establishes beyond any doubt that he is a career criminal. He admitted this fact before the jury and advanced his drug enterprise as the basis for his possession of a loaded firearm on the night in question. In fact, that handgun was not only prohibited from his possession by the terms of s.95(1) of the Criminal Code, the offender was also subject to a specific prohibition order pursuant to s.109(2)(b) C.C. that had been imposed on October 31, 2008 for the possession of another illegal firearm. The “scourge” of the illicit handgun mentality in our present-day urban environment and the need for the court to respond in a manner that will, hopefully, denounce and discourage such conduct is well documented in the jurisprudence. See, for instance, the comments of A.J. O’Marra J. in R. v. D.S., 2010 ONSC 7256 at paras. 46-55. I adopt his comments as my own.

[5] Although Mr. Mohammed has expressed remorse for the fact that his victim had to die, I am satisfied that his commitment to the criminal lifestyle of an armed drug dealer suggests a significant increase of the period of parole ineligibility.

THE NATURE OF THE OFFENCE AND THE CIRCUMSTANCES SURROUNDING ITS COMMISSION

[6] The offender shot and killed his victim outside a banquet hall in Concord. Arash Bakhtaryani suspected him of having masterminded the theft of his $20,000 from the house of a friend who had agreed to keep it in a safe place. The deceased had made threats to third parties about his animosity for Mr. Mohamad prior to meeting up with him at a stag party on the night in question. The jury rejected his claims of self-defence and provocation.

[7] The jury rejected the Crown’s suggestion that Mr. Mohamad was out that night with the intent to lure his victim out to the parking lot of the banquet hall and to shoot him down. I accept that Mr. Bakhtaryani was the initial aggressor and had armed himself with two potentially lethal steak knives before he pursued the offender outside to confront him about some missing money that he suspected Mr. Mohamad had arranged to steal from him. That factor mitigates the seriousness of the offence.

[8] However, I am satisfied beyond a reasonable doubt that, after Mr. Mohamad had fired the initial volley into his victim, he returned to the scene in his vehicle and inflicted a “coup de grâce” on Mr. Bakhtaryani while he lay on the frozen ground. I accept the evidence of the eyewitness, Sean McDermott, to this effect as described in his “K.G.B.” statement dated January 23, 2011 and which was admitted before the jury as substantive evidence. This version of the events was confirmed, in my view, by the forensic evidence of gunshot residue (“GSR”) later found in the offender’s vehicle. It was also confirmed by the video surveillance which shows the offender’s vehicle leaving the premises following the route described by Mr. McDermott after he had fired the “coup de grâce”. I am satisfied of this aggravating circumstance beyond a reasonable doubt: see s.724(3)(e) C.C. The GSR evidence was fully canvassed before the jury as well as the video surveillance evidence: see s.724(3)(a) C.C. In my view, that is an extremely aggravating factor when I assess the appropriate period of parole ineligibility: see R. v. Faulds (1994) 1994 770 (ON CA), 20 O.R. (3d) 13 (C.A.) at para. 11.

[9] I appreciate that the jury rejected the “coup de grâce” theory as the basis for a planned and deliberate first degree murder. However, I do not view my interpretation of the evidence as being inconsistent with Mr. Mohamad’s acquittal of first degree murder. This theory comfortably supports a scenario suggesting significant deliberation despite insufficient support for a “planned” murder: see R. v. Roncaioli, 2011 ONCA 378 at para. 59.

[10] I agree with the Crown that the elaborate attempts by Mr. Mohamad to evade the authorities and to plan his flight from Canada are aggravating factors as well. Despite the initial aggression by the victim, I am satisfied that these elements demand a significant increase in the period of parole ineligibility.

RECOMMENDATION BY THE JURY

[11] As I have already noted, the jury delivered what I have described as a modest recommendation in relation to increased parole ineligibility: seven jurors made no recommendation; three opted for the minimum of ten years; one for 15 years; and one for 25 years. However, the jury made their assessment of Mr. Mohamad’s character on the basis of a significantly sanitized version of his criminal antecedents. On consent, all of his Youth Court entries including an assault conviction along with two robbery convictions had been excised from this record. In addition, the firearm possession entry from October 2008 disappeared. In the result, the jury rendered their recommendation in a significantly uninformed manner and, accordingly, their view on this matter should be granted reduced weight in the equation.

CONCLUSION

[12] Taking all of these factors into account in the fashion above-described, I come to the conclusion that the appropriate period of parole ineligibility was one of 16 years.

McISAAC J.

Released: May 1, 2014

Correction made to the spelling of the Defendant’s surname from Mohamed to Mohamad:

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