REASONS FOR SENTENCE

Tuesday, June 10, 2014

LALONDE, J. (Orally):

On March 14, 2014 Mr. Ahmed was found not guilty of assaulting Danny Bronson, contrary to section 266 of the Criminal Code but guilty of assault causing bodily harm on Shirley Hunkin, contrary to section 267(b) of the Criminal Code and of uttering a threat to cause death to Shirley Hunkin contrary to section 264.1(1)(a) of the Criminal Code.

The facts upon which this conviction rests. On July 16, 2012, in the Byward Market area of the city of Ottawa, Mr. Ahmed was accosted by Shirley Hunkin, a cocaine addict who had decided to make a rip on him as she had no money to pay for the one gram of crack Mr. Ahmed supplied to her.

Without reviewing the evidence in its entirety, it suffices to say that I found Mr. Ahmed was the person who cornered Miss Hunkin in the ladies washroom of a McDonald’s restaurant in the Byward Market and caused her grievous bodily harm. After splitting her head open with a blow from his fist Mr. Ahmed placed his hand over her Ms.

Hunkin’s mouth and while banging her head against the wall told her, “You will die bitch.” The manager of the McDonald restaurant, Danny Bronson, gained entry to the washroom and intervened in time to stop the assault from going any further. Mr. Ahmed was followed by the manager and one other witness who alerted police as to the events and an arrest was made.

Personal background of the offender as best described by probation officer Joanne Woodhill. In her pre-sentence report dated May 15th, 2014, she states at page three that:

Nouradine Ahmed was born in Ethiopia. His family consisting of his parents and three siblings immigrated to Canada when he was five years old. They settled in the Elmvale area of Ottawa. Mr. Ahmed indicates that age seven he was removed from the family home due to excess discipline by his father. He claims he was shortly thereafter designated a Crown Ward. Mr. Ahmed reports bouncing between foster and group homes throughout his youth to age 16.

He claims to have had no contact with his parents or siblings from a very young age. At age 16 Mr. Ahmed reports leaving the care of CAS and striking out on his own, most often sharing apartments with various friends. He indicates that he has always had girlfriends but no serious and long lasting relationships. Mr. Ahmed has no children. Mr. Ahmed admits that his peer group as a young adult was less than desirable though he claims to have held a consistent employment. Convictions for four counts of robbery and disguise with intent in 2008 resulted in a four year term in federal custody commencing when he was age 21. He was released from custody in May, 2012. Mr. Ahmed reports that following his release he rented an apartment in Ottawa’s Sandy Hill neighbourhood and gained employment in the restaurant industry. Mr. Ahmed has been in custody at the Ottawa Detention Centre pretty well since October, 2013.

I will review the specific times in a few minutes. On the subject of his addictions, the pre-sentence report goes on to say that:

Mr. Ahmed commenced alcohol and marijuana use as a teenager. Though reticent to admit to substance use addiction, he did indicate that his use of alcohol and drugs has played a role in all of criminal convictions. A Corrections Services Canada report dated July 22nd, 2011, reported the following: “Despite the fact that Mr. Ahmed was not under the influence of an intoxicant during the commission of the index offences his substance abuse has contributed to law violations in the past. It is difficult to ascertain if a problem exists in relation to a substance abuse addiction or problem, or if the offender simply makes extremely poor choices while under the influence of an intoxicant.

Mr. Ahmed admits that he had been using alcohol on the night that the assault bodily harm offence was committed in July of 2012.

The mitigating factors that I accept, the youth of the offender, and his very unfortunate early life.

The aggravating factors are his past criminal record, the vulnerability of the victim, the gratuitous vengeance and violence, and the poor employment record and absence of utter useful contributions to society.

The relevant sentencing provisions of the Code are as follows: section 718, the fundamental purpose of sentencing is to contribute along with crime prevention initiatives a 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. To denounce unlawful conduct. To deter the offender and other persons from committing offences. To separate offenders from society where necessary. To assist in rehabilitating offenders. To provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

Section 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2: A court that imposes a sentence shall also take into consideration the following principles: A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentence are imposed, a combined sentence should not be unduly long or harsh, and that an offender not be deprived of liberty if less restrictive sanctions may be appropriate and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

The defence position. Defence counsel submitted that a sentence of one year for the assault causing bodily harm charge and a sentence of three months for uttering a death threat to Ms. Hunkin, followed by two years of probation would be a fit sentence.

The Crown’s position. The Crown submitted that a sentence of three years in penitentiary would be a fit sentence in the circumstances. The range, the case law for similar cases imposes a six month to five year terms. I accept that in cases of assault causing bodily harm, sentences vary, and that sentences in each case have to reflect the facts before the Court.

My analysis. I have to decide if Mr. Ahmed has chosen a life of crime, or whether on past behaviour when he has offended, he has exhibited a tendency to turn his life around and become an honest citizen willing to contribute to the society he lives in. For his age, Mr. Ahmed’s criminal record is extensive. He has on his sheet six adult convictions, including four convictions for robbery, triggering mandatory minimum sentence. Seven convictions as a youth, and other offences for which he has been convicted.

In the case at bar, the attack was brazen on a victim who was vulnerable. True, Mr. Ahmed did not break any bones on Miss Hunkin during the attack, and his conviction is not that of aggravated assault. Nevertheless, Miss Hunkin suffered physically for over a month and according to her victim impact statement she is still psychologically affected. That woman thought that she was going to die. It was not Mr. Ahmed who stopped the assault, his banging of Ms. Hunkin’s head against the bathroom wall, but Danny Bronson the manager of the restaurant.

Had it not been for an honest citizen who saw you leaving the yard of his pub and followed you to the McDonald’s restaurant while you were harassing the victim for your $8.00 payment, you would not have been caught. The assault on your victim was not an impulsive act, not an accident, but the act of someone who is dangerous when he gets angry. While it is true that the funding ran out after three months when you underwent rehab services in the province of Quebec, and that it was not your fault, it was not your fault that you were not accepted for rehab at Harvest House, but I’m wondering, could it be that your motivation to rehabilitate is not clear to anybody. You are not being sentenced for past robberies you have committed, or for one robbery for which you’re yet to be sentenced. I am entitled to take into consideration your criminal record on my assessment of what type of behaviour you are likely to exhibit in the future.

Would you stand up Mr. Ahmed. Do you have something to say to me before I pass sentence?

NOURADINE AHMED: Um. No, sir.

THE COURT: Thank you, you may sit down.

SENTENCE

I sentence you to two years for the assault causing bodily harm, and three months for uttering a death threat, to be served concurrently with your two year term for assault causing bodily harm.

As for the time spent in custody I have Crown counsel; and your counsel Mr. Ahmed, agreeing to a total of 296 days of pre-sentence custody for the period, and I would ask counsel to follow me on this berceuse I want to get it straight. July 17th, 2012 to August 3rd, 2012, 18 days by applying the enhanced credit of 1.5 days for every day spent in custody.

Two, from July 4th, 2013, to August 13th, 2013, 40 days with the same credit of 1.5 days for every day of custody.

Three, from October 8th, 2013, to the present with the same credit of 1.5 days for every day spent in custody. The enhanced credit addresses the two prejudices you were subjected to namely, the lack of early release and the lack of programming.

The Crown disagrees that you should get a day of credit for every day you spent at Freedom House, an in-house residential facility where you are forbidden to leave and where you’re locked up at night. I will grant you the additional credit of 86 days to underline that I want you to turn your life around. Get a job and become a productive member of our society. If you come back before the courts again, in the recent future, I pity you because I think the court will deal with you very harshly.

You will be on probation for two years with the following additional terms, that are normal and those normal terms are report as directed to a supervisor of probation;

abstain from the consumption of alcohol or controlled substances, except with the recommendations of a medical prescription;

not to associate with any person known to you to have a criminal record, except for purposes of employment. And the onus will be on you to ask the question to whoever you associate with, “Do you have a criminal record?” So you can’t come back later on and say, “I didn’t know the guy had a criminal record.” Just ask.

Attend and complete programming as directed by the supervisor and sign any required release forms to confirm attendance.

You’re not to communicate or associate with Shirley Hunkin or Danny Bronson.

I direct also that you benefit from anything that can be given you while you’re inside to overcome your drug addiction, and that you get some psychotherapy for your emotional issues with the hope that you can learn to make pro-social decisions in the future.

Do counsel wish to address anything?

MS. MCVEY: Just with respect to the pre-sentence custody Your Honour, my understanding was that he was going to receive the enhanced credit for the first portion, but for the remaining portion the problem is because there was a successful 524 application he’s actually dis-entitled to enhanced credit pursuant to section 719, so the maximum amount of credit he could get for those periods is in fact the one to one.

THE COURT: That’s for how many days?

MS. MCVEY: So, for the first period that Your Honour outlined, the July 17th to August 3rd, my understanding is that he would actually be entitled to the two for one at that point, was that before the amendment? I’m not sure, so one and a half to one there, so 27 days, but for the other periods noted by Your Honour, the maximum would be one for one.

THE COURT: July 4th to August 13th, and that’s 40 days.

MS. MCVEY: So he would only be entitled to 40 days credit because at that point there was a successful 524 application.

THE COURT: So I’m corrected that it’ll be one day for one day for that period of time.

MS. MCVEY: That’s correct.

THE COURT: But the total remains the same, doesn’t it? 296 days.

MR. NAHUM: I think that was the total, yes.

MS. MCVEY: That was the total that we had agreed upon, and that was based on what we’ve just discussed. So I don’t think it changes anything in the end result, but.

THE COURT: So, I’ve added on that now, the 86 days that defence counsel Mr. Nahum has asked me to for his client.

MR. NAHUM: Yes, so that’s a total of 382.

THE COURT: Okay, very good.

MS. MCVEY: If I’m not mistaken there is also the remaining – so there was that period that he got 40 days at 1.5 to one, there was a second chunk, there’s the 27 days where he gets the 1.5 to one, then there’s the second chunk where it’s 40 days at one for one, and then there’s a third chunk that’s also one for one, and I think Your Honour indicated there that it was 1.5 to one, so perhaps just a semantic change there.

THE COURT: From October 8th, 2013 to the present with the same credit of 1.5 days for every day spent in custody.

MS. MCVEY: That’s right, that should be one for one.

THE COURT: Why?

MS. MCVEY: Because of the 524 application.

THE COURT: Oh, I see.

MS. MCVEY: So he’s dis-entitled, so the only period that he gets the enhanced…..

THE COURT: The total remains the same, 296 plus the 86.

MS. MCVEY: That’s correct.

THE COURT: For a total of what Mr. Nahum?

MR. NAHUM: Three hundred and eight two.

THE COURT: So the total to be inscribed in the indictment is three hundred and?

MR. NAHUM: Eighty two.

THE COURT: Eighty two days.

MR. NAHUM: So it’s two years minus 382 um, which uh, I’ll let Mr. Registrar do the addition.

THE COURT: Just under a year.

MR. NAHUM: Yes.

MS. MCVEY: The Crown is also seeking Your Honour, that that sentence run consecutively to a sentence that he’s currently serving. My understanding is that he was sentenced in the Ontario Court of Justice the week before last for the robberies that we had discussed at the sentencing hearing, and if I’m not mistaken he received a five year sentence for that robbery. So, these being completely unrelated events, the Crown’s request is that this be served consecutively to the sentence he’s currently serving right now, and my final comments, I’m not quite sure if Your Honour addressed the ancillary orders. I might have missed that at the end.

THE COURT: No, I didn’t.

MS. MCVEY: A DNA and the section 109 weapons prohibitions, the Crown is seeking those.

THE COURT: Mr. Nahum?

MR. NAHUM: Yes, so I would ask Your Honour to take into consideration the total length of time that he would be serving in custody when considering whether or not to make this order consecutive to the other sentence that he’s serving. Although the offences are unrelated, that would put him at a total custodial sentence of approximately six years which is quite a long sentence given his young age.

THE COURT: I know one thing Mr. Nahum, your client will get rid of his addiction, that’s for sure. And if he wants to take all of the courses that they give him, it might serve him very well. I was sad when I heard that during your submissions that he was already under the gun for another sentence for robbery. I couldn’t believe that, you know. And so I’m not willing to make it consecutive.

MR. NAHUM: Okay. I would ….

THE COURT: I am willing to make it consecutive, and I’m not willing to let him off. No.

MR. NAHUM: Um, in relation to the probation order though Your Honour, in terms of the um, the not associating with persons with criminal records you made the exception for employment. I would ask that you also make that exception for when in rehabilitative programs, so while he’s attending programming to deal with addictions or other issues that he may be asked to attend for. There will likely be other persons there with criminal records, so just exceptions.

MS. MCVEY: The Crown takes no issue with that.

THE COURT: That’s on consent that I amend that to include the presence of other people with criminal records while attending rehabilitation of one type or another.

MR. NAHUM: And then finally, Mr. Ahmed’s gonna be in custody for a significant amount of time. These charges predate the amendments to the victim fine surcharge in October of last year, so I’m gonna ask Your Honour to waive the victim fine surcharge.

THE COURT: Yes, I will waive the victim surcharge, but I will make the order of weapons prohibition for a period of 10 years, and for him to provide his DNA and it’s probably already there.

MR. NAHUM: Yes, there was a lifetime prohibition made downstairs last week, so.

THE COURT: There you go.

MR. NAHUM: And a DNA order.

MS. MCVEY: The prohibitions would likely be for life then given that there’s already pre-existing weapons prohibitions, it will be a lifetime.

THE COURT: It will be for life.

MS. MCVEY: And to be clear, that the sentence will run consecutive?

THE COURT: Yes, it is very clear.

MS. MCVEY: Okay.

THE COURT: My clerk will make sure that it’s included on the sheet and it will be brought to me in chambers Mr. Clerk. Thank you.

CERTIFICATE OF TRANSCRIPT

EVIDENCE ACT, subsection 5(2)

I, Debi Lascelle, certify that this document is a true and accurate transcription of the recording of R. v. Nouradine Ahmed in the Superior Court of Justice held at Ottawa, Ontario, taken from Digital Recording No. 0411_CR35_20140610_085308__10_LALONDP.dcr which has been certified in Form 1.

November 20, 2014

Date Debi Lascelle

• This certification does not apply to the Reasons for Sentence which were were judicially edited.

Information No. 12-11560

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

NOURADINE AHMED

REASONS FOR SENTENCE

HEARD BEFORE THE HONOURABLE JUSTICE LALONDE

On Tuesday, June 10, 2014

at Ottawa, Ontario

APPEARANCES:

McVey, K. Counsel for the Crown

Nahum, C. Counsel for the accused

Table of Contents

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Page

EXHIBIT NUMBER 1:

Transcript Ordered: November 7, 2014

Transcript Completed: November 20, 2014

Ordering Party Notified: