R. v. Dourhnou, 2015 ONSC 839

COURT FILE NO.: 12-2312

DATE: 2015/02/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZAKARIA DOURHNOU

Accused

Peter Napier and Jason Nicol, for the Crown

Neil Weinstein, for the Accused

HEARD: January 15, 2015

REASONS FOR SENTENCE

C. MCKINNON J.

[1] This case dramatically illustrates the escalating danger posed to the citizens of Ottawa by young persons engaged in drug dealing, guns and violence. Sadly, the root of the tragedy which left one young man dead and two others seriously wounded was the theft of a cellphone containing information of interest to drug dealers.

[2] The Accused, Zakaria Dourhnou has pleaded guilty to one count of manslaughter and two counts of aggravated assault. The facts in support of the pleas were negotiated and embodied in an Agreed Statement of Facts.

The Facts

[3] On March 22, 2012, the deceased, Khalid Doreh, then 21 years of age, met up with two friends, Mr. Abdourahman and Mr. Iman, respectively known as “Billy and “Lincoln.” They spent the afternoon drinking alcohol and smoking drugs then eventually met up with one Mr. Ali, known as “Boston.” At one point, Mr. Iman grabbed Mr. Abdourahman and yelled, “Let’s rob the goof.” Mr. Abdourahman was then attacked by the three others and robbed of his watch and a cellular telephone. The telephone was a “chopping” phone, street jargon for a phone used for dealing in narcotics. Mr. Abdourahman complained to friends through Facebook about the assault and theft of his property.

[4] Mr. Abdourahman had a friend named Mr. Ahmed who was located at 829 Borthwick Avenue in the City of Ottawa. Various text messages were left on Mr. Ahmed’s cellphone including the following messages: “You really need to holla at me”; “Tell lincoln wasssup”; “I need lincolns number”; and “Yoo if lincoln doesn t give these south side niggas fone back niggas r gonna be at ur door.” All these texts were sent between the hours of 23:56 on March 22 and 01:11 on March 23, 2012.

[5] On the morning of March 23, Mr. Doreh was lying on a couch on the first floor living room at 829 Borthwick Avenue. Mr. Iman and Mr. Ahmed were on the second floor of the residence. The residence is a two-storey duplex situated on a corner lot in a residential area in the east end of the City of Ottawa. The neighbourhood consists largely of duplexes and single family detached homes. There are a number of low-rise apartment buildings in the vicinity. Rideau High School is located 650 meters from the residence. The Queen Elizabeth public school lies adjacent to the high school and is less than one kilometre from the Borthwick Avenue address. A third public school, Our Lady of Mount Carmel, is approximately one block from the residence of 829 Borthwick Avenue.

[6] Shortly before 11:47 a.m., on March 23, Maher Majed drove his vehicle to that vicinity, parked, and then proceeded to the front entrance of 829 Borthwick Avenue. He was wearing a dark coloured “hoodie” sweatshirt. He either kicked or forced open the front entrance doorway. The door frame was significantly damaged following his entry. Once inside the residence, Mr. Majed immediately ran upstairs. Mr. Iman was in the upstairs washroom. Mr. Iman tried to hold the washroom door closed with his foot when he heard Mr. Majed running up the stairs. Mr. Ahmed was on the second floor of the residence in a bedroom located adjacent to the washroom. When Mr. Majed reached the top of the stairs, he told Mr. Ahmed to get into the washroom along with Mr. Iman. He then stood outside the doorway at the top of the stairs and fired a 9mm handgun at close range, first at Mr. Ahmed, then at Mr. Iman, while they were confined in the washroom. Mr. Ahmed was shot in the right lower torso and Mr. Iman in the left upper arm. Mr. Majed then proceeded back down the stairs. Mr. Doreh, hearing the forced entry, got up from the couch and approached the stairwell. As he did, Mr. Majed shot Mr. Doreh one time in the chest, killing him. Mr. Iman, meanwhile, was frantically phoning 911. An ambulance arrived at the residence shortly after.

[7] Mr. Dourhnou and Mr. Majed were both members of the Fit for Less gymnasium located at 1460 Merivale Road in the City of Ottawa and they had both been at the gym on the morning of the shootings. Mr. Majed swiped in at 08:29 and Mr. Dourhnou at 08:48 on the morning of March 23.

[8] The Agreed Statement of Facts states that Mr. Majed and Mr. Dourhnou agreed that Mr. Dourhnou would drive to the vicinity of 829 Borthwick Avenue and wait for Mr. Majed to exit the residence. Mr. Dourhnou knew, as a result of conversations and text communications he exchanged with Mr. Majed, that serious bodily harm could result from the injuries that would be inflicted by Mr. Majed when Mr. Majed confronted the occupants of 829 Borthwick Avenue. Mr. Dourhnou also knew that Mr. Majed was acting in retaliation for the robbery of the “chopping” phone the previous evening.

[9] The cellular telephone evidence obtained from the phones of Mr. Majed and Mr. Dourhnou indicate that both were in separate cars heading towards 829 Borthwick Avenue. Text messages exchanged between the pair established their presence in the vicinity at the time of the shootings, derived from the location of cellphone towers in the area.

[10] Mark Greenaway was sitting on his front steps at 808 Borthwick Avenue on the morning of the shooting. Shortly before the sound of gunshots rang out, he observed a silver color Chevrolet four door vehicle traveling northbound on Borthwick Avenue in a direction away from 829 Borthwick Avenue. The vehicle made a U-turn coming to face 829 Borthwick and pulled up immediately in front of 808 Borthwick Avenue where Mr. Greenaway was sitting. Mr. Dourhnou was the driver of the vehicle. He was about 20 feet from Mr. Greenaway and speaking on a black cellular telephone. Mr. Greenaway saw that Mr. Dourhnou was “fiercely” or “constantly” looking around. Mr. Greenaway then heard the sound of three gunshots in rapid succession. When the shots rang out, Mr. Dourhnou quickly accelerated the vehicle and proceeded down Borthwick Avenue in the direction of 829 Borthwick. Mr. Greenaway noted that the vehicle was a front wheel drive and that the front wheel tires “chirped” on the pavement as the vehicle “took right off.” He saw Mr. Majed emerge from the front porch when Mr. Dourhnou’s vehicle was about 20 feet from the intersection of Borthwick and Burns Avenue. He saw Mr. Majed jump over a fence with the use of one hand and continue to run towards Borthwick Avenue. Mr. Majed’s other hand was in his pocket.

[11] Stephanie LaFlèche lived on Borthwick Avenue in the second house from the intersection of Burns and Borthwick. While getting ready to go to work, she heard gunshots and went to her bedroom window. From there, she saw a car pull up in front of her home and heard either the driver or Mr. Majed shout “go, go, go.” Ms. LaFlèche then saw a man jump over the fence at the side of 829 Borthwick and run across the street onto her lawn and into the passenger side of the car. The car then sped off. She was able to obtain the license plate, being Quebec marker B41 BHN, and reported it to police. A broadcast alert was sent to officers throughout the city.

[12] Mr. Dourhnou drove Mr. Majed to his own vehicle which was parked a number of blocks away from 829 Borthwick and then fled in the direction of his own residence in Gatineau. RCMP constable Michel Forget was on duty and in response to the call from Ottawa Police, he spotted a Chevrolet Cobalt, grey in color, with Quebec license plate B41 BHN. With the assistance of other officers, the vehicle was stopped and Mr. Dourhnou was placed under arrest for first degree murder.

[13] Both the vehicle and Mr. Dourhnou were searched. A dark colored “hoodie” sweatshirt similar to the one seen on Mr. Majed when he was running away from 829 Borthwick towards the car driven by Mr. Dourhnou was found in the trunk of the car. Gunshot residue was recovered from both hands of Mr. Dourhnou. One can only speculate as to how the residue came to be on Mr. Dourhnou’s hands.

[14] Police thoroughly searched the residence of 829 Borthwick Avenue for firearms. None were located. There is no evidence to suggest that firearms were present previous to or at the time Mr. Majed broke into the residence and shot the occupants.

[15] On March 26, 2012, Mr. Majed purchased a one-way ticket to Bagdad, Iraq. He has not been seen in Canada since.

[16] Mr. Doreh, the deceased, was killed by a medium calibre 9 mm full metal jacket bullet. The trajectory is consistent with the fatal shot being fired from the stairwell and downward by Mr. Majed after Mr. Iman and Mr. Ahmed had been shot. Efforts to resuscitate Mr. Doreh were in vain. Mr. Ahmed was shot in the right upper thigh. Mr. Iman was shot in the left upper arm. The bullet penetrated through the left upper arm, exited through the inside of the left upper arm and tracked through chest wall. It was a major penetrating trauma. The bullet was imbedded within the right chest wall and remains there to this day.

Mr. Dourhnou’s Background

[17] At the time of the shooting, Mr. Dourhnou was on probation as a result of being convicted for attempting to obstruct justice. On that charge, he was sentenced to 12 months in custody, in addition to 135 days of pre-trial custody and placed on probation for 12 months. On March 23, Mr. Dourhnou was bound by the condition of his probation Order, one of which required that he not associate, contact or hold any communication, directly or indirectly, with anyone known to have a criminal record. Mr. Majed had a significant criminal record at the time of the shootings and Mr. Dourhnou was in breach of his condition when he associated and communicated with Mr. Majed on March 23.

[18] Mr. Dourhnou’s criminal record reveals that as a youth in 2010 he was convicted of two assaults and failing to abide by an Undertaking given to an officer in charge. Both assaults involved hitting girls; on one occasion pushing a girl to the ground and on another occasion, slapping and punching a girl in the face. On April 20, 2010, he was sentenced for the three offences and placed on probation for nine months.

[19] While on probation, on December 6, 2010, Mr. Dourhnou was charged with attempting to obstruct, pervert or defeat the course of justice by attending the location of a crime vehicle at 1170 Fisher Avenue with rags, towels and cleaning solution thereby attempting to destroy evidence. He was also charged with breach of probation. Mr. Dourhnou pleaded guilty to those offences on March 9, 2011, and on April 21, 2011 was sentenced by Justice Dorval of the Ontario Court of Justice. Similar to the case before me, Mr. Dourhnou was sentenced in accordance with an Agreed Statement of Facts. The facts of the previous offence are conveniently set out in paragraphs 3 through 7 of the decision of Justice Dorval reported R. v. Dourhnou 2011 ONCJ 831; [2011] O.J. No. 6249:

FACTS

3 Mr. Dourhnou's involvement in this matter commences as a result of a homicide which took place on December 6th, 2010 at 10:15 a.m. Abdulhamid Wehbe and Mohamed Wehbe met with Yazden Ghiasvand and Don Dao for the purpose of a drug transaction. When Mr. Ghisasvand went to the Wehbe vehicle to obtain the money for the drugs, two loud bangs were heard and two males were seen removing Mr. Ghiasvand from the rear of the Wehbe vehicle and leaving him on the sidewalk. Mr. Ghiasvand was pronounced dead at the hospital. The cause of death was a gunshot wound to the heart. Mr. Abdulhamid Wehbe has been charged with murder but this matter has yet to go to trial.

4 Eye witnesses provided a license plate for the vehicle in question, a blue Nissan Maxima. The vehicle was located by police at 20:18 in a visitor's parking lot between 1140 and 1170 Fisher Ave. Mr. Dournhou resided at 1170 Fisher at that time. Plates had been removed and the sun-roof was smashed out. At 02:25 two males approached the vehicle. Mr. Dournhou arrived on foot walking a dog, and a second male, Khaled Wehbe arrived in a 1998 Mazda. They both went to the vehicle. Mr. Dourhnou entered the front of the vehicle and immediately began cleaning. Mr. Wehbe entered the back passenger area and also started cleaning. Mr. Wehbe returned to his vehicle with rags and a bag and both were observed to be cleaning the interior of the vehicle with CLR and Scrub-Free cleaning products. The surveillance team was directed to arrest them at 02:40. The keys to the vehicle were located in Mr. Dourhnou's pant pocket.

5 There was blood on the back seat of the vehicle, and what appeared to be transfer staining on the back of the driver's seat head rest. It appeared that a bullet had gone through the sun-roof from the interior of the vehicle at an angle and that it had pierced the shade of the sun-roof. The glass portion of the sun-roof had been shattered.

6 Although the victim's DNA was ultimately found in the vehicle, the nature of the cleaning products did compromise the evidence which could have been collected from the vehicle, such as blood splatter and gunshot residue, as well as DNA.

7 At the time of his arrest, Mr. Dourhnou was bound by a probation order made on April 20th, 2010. This order required him to reside with his mother. At the time of this occurrence, he resided at 1170 Fisher while his mother resided in the City of Gatineau.

[20] In her comments on sentence, Justice Dorval noted that Mr. Dourhnou was 18 years of age, born in Morocco, and had a difficult childhood. His parents were separated when he was four years of age. His mother was sponsored to come to Canada but he only immigrated at age six. He had been suspended several times in secondary school and was attending St. Nicholas high school at the time of his arrest. He had not completed any credits from September 2010 to December 6, 2010. He had an argument with his stepfather in the summer of 2010 and moved out of his mother’s residence and into an apartment paid for by his mother, contrary to the conditions of his probation, specifically that he live with his mother.

[21] Mr. Dourhnou acknowledged that he was asked by a friend to clean the car but denied he knew what had happened in the vehicle. He stated that he was told that an altercation had taken place following a drug transaction and “he did not ask any questions.” Justice Dorval noted that “Mr. Dourhnou accepts that he cannot justify what he did and expressed remorse for his behaviour.” At paragraph 20 of her decision, Justice Dorval stated:

I find his knowledge or lack thereof of what had occurred in the vehicle to be quite suspect given the intensity of the media coverage of this occurrence and the state of the vehicle. However, given that the Crown has accepted this plea to the offence of attempting to obstruct justice, and not that of accessory after the fact of a homicide, I am prepared to accept the accused’s version as to his state of knowledge. The fact remains that Mr. Dourhnou was quite willing to accept to help out a “friend” who was involved in an altercation by cleaning out potential evidence…

[22] In the Pre-Sentence Report prepared for Justice Dorval and relied upon by Mr. Weinstein in the present proceedings, it is noted that Mr. Dourhnou expressed remorse for his behaviour and sympathy for the victim and the victim’s family. He stated that he could not justify what he did. The Report also noted that he had been involved in two physical altercations during his period of incarceration. He stated that he would make a concerted effort to stay away from trouble and associate only with pro-social individuals.

[23] What is disturbing in the present case is that Mr. Dourhnou was released from custody on December 26, 2011. At that point, he was subject to three years of probation. Within three months of his release, he found himself in his present predicament, a highly aggravating factor.

[24] The institutional history since his arrest on March 23, 2012, reveals that Mr. Dourhnou has been involved in six fights in the Ottawa Carleton Detention Centre. It is unknown who instigated these fights, but it is consistent with the pattern of his institutional history as noted by Justice Dorval, namely, that Mr. Dourhnou engages in fights while institutionalized.

[25] Consistent with the proceedings before Justice Dorval, in the proceedings before me Mr. Dourhnou expressed remorse to the family of the deceased and promised to stay out of trouble. I am unable to say whether the remorse expressed by Mr. Dourhnou in open court was heartfelt or not. The fact that he expressed remorse before Justice Dorval and so quickly found himself involved in the present circumstances militates against the sincerity of his expressions of remorse.

[26] One positive feature of Mr. Dourhnou’s incarceration is that he has been registered in the Adult Education Program at the Ottawa Carleton Detention Centre. He has completed four course credits and is working on a fifth course credit in grade 12 English. Gary Conrad, the adult teacher in charge of the program in which Mr. Dourhnou is registered, in a letter to the Court, stated that:

Mr. Dourhnou is a self-motivated, conscientious and independent student who enjoys his school and is determined to earn his diploma. He accepts constructive criticism quite well and is always looking for new assignments. He enjoys and contributes in all class discussions and is very respectful. I have spoken to Zakaria about school after he leaves OCDC and he plans to pursue a post-secondary education once he receives his Ontario Secondary School diploma.

[27] The proceedings on the plea of guilty were attended by the parents and sisters of the deceased. A Victim Impact Statement was prepared by the father of the deceased. In it, Mr. Adam Doreh states that all members of the family have suffered emotional scars as a result of his son’s killing. In particular, the mother of the victim has developed diabetes and hypertension, loss of appetite and depression. Both daughters are going through emotional stress, have undertaken counselling and suffer from panic attacks. The father took four months off work due to stress leave.

[28] It is not acknowledged by the Defence that Mr. Dourhnou knew that Mr. Majed had a gun when he forcibly entered the premises occupied by the deceased and his friends. Consistent with the comments of Justice Dorval, in Mr. Dourhnou’s most recent brush with the law, I must express feeling a keen sense of suspicion surrounding Mr. Dourhnou’s knowledge, particularly given the fact that Mr. Majed was entering the premises alone. Mr. Dourhnou knew that Mr. Majed was entering the premises to retaliate for the theft of the “chopping” phone. The fact that Mr. Majed was alone speaks volumes, in my view. The very least one can conclude is that as soon as gunshots were heard ringing out, Mr. Dourhnou had to know that these shots had been fired by Mr. Majed. Had he any suspicion that shots had been fired at Mr. Majed rather than by Mr. Majed, he would likely not have proceeded to pick up Mr. Majed but would have probably exited the scene by turning right on Burns Street instead of proceeding straight along Borthwick Avenue to pick up Mr. Majed. Mr. Dourhnou knew that Mr. Majed was entering 829 Borthwick Avenue with intent to cause serious bodily harm. He agreed to be Mr. Majed’s “wheel man” and help him escape the scene of the crime. No thought was given to tending to the victims. His was a serious crime.

[29] What aggravates his crime is the fact that it was the second time where he found himself in close proximity to cold blooded murder.

The Law

The Principles of Sentencing

[30] Section 718 of the Criminal Code provides that the 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 just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and,

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[31] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code. In deciding whether a sentence is proportionate, the sentencing judge must consider the aggravating and mitigating circumstances relating to the offence or the offender, as well as the principles of parity, totality and restraint: s. 718.2 of the Code.

Case Law

[32] The Crown seeks a sentence of nine years in penitentiary, less time served, whereas the Defence argues that time served constitutes sufficient punishment. Mr. Dourhnou has been in custody for 1050 days, or two years, 10 months and 14 days.

[33] Sentencing in manslaughter cases is particularly difficult “given the wide range of circumstances in which the offence can be committed, and the wide range of sentences available under the Code”: R. v. Thompson, 2010 ONCA 463, 256 C.C.C (3d) 51, at para. 36. To determine the appropriate sentence in the case of manslaughter, “[e]verything depends on the circumstances”: R. v. Bank, 2000 CarswellOnt 3661, [2000] O.J. No. 3682 (ONCA), at para. 1. As such, a review of the circumstances and sentences given in the manslaughter cases the Crown and Defence submitted provides an appropriate starting point for determining a fit sentence for Mr. Dournhou.

[34] The facts in the cases the Crown relies on for a sentence of nine years are more egregious than the facts in this case, in my view.

[35] In R. v. Cooney (1995), 1995 707 (ON CA), 98 C.C.C. (3d) 196 (Ont. C.A.), while the jury’s verdict indicated that they were not satisfied beyond a reasonable doubt that Mr. Cooney was present at the murder, there was nevertheless evidence that he provided the murder weapon, assisted in luring the victim, and used the victim’s ATM card to steal the victim’s money after the murder. Mr. Cooney’s sentence was reduced on appeal from 12 to eight years, in addition to 16 ½ months pretrial custody.

[36] In R. v. Marsden (2004), 188 C.C.C. (3d) (Man. C.A.), Mr. Marsden did not know that his accomplice had a knife when they planned to rob a cab driver. However, he was present at the killing, and immobilized the victim by grabbing him around the neck immediately prior to his accomplice fatally stabbing the victim. The Manitoba Court of Appeal reduced his sentence from 14 to 10 years.

[37] In R. v. Strongman, 2007 ABQB 370, 418 A.R. 308, Mr. Strongman planned to rob a taxi driver with two accomplices, and either knew (a) that his accomplices had knives or (b) that they intended to use violence in the commission of the robbery. Mr. Strongman caused the taxi driver to stop the cab by saying he had to vomit. Once the cab was stopped, Mr. Strongman’s accomplices stabbed the taxi driver. Mr. Strongman helped put the victim in the trunk of the cab. The group then drove the cab with the victim in the trunk; in reaction to the victim’s kicking and screaming, one accomplice, Mr. Crane, said to Mr. Strongman, “Let’s go finish this,” after which the two exited the vehicle, and went to the trunk; the victim ceased making noise. The group shared the money taken from the victim and abandoned the car in a parking lot. Mr. Strongman received a sentence of 12 years.

[38] In R v. Phillips, 2008 ONCA 688, 79 W.C.B. (2d) 304, Mr. Phillips loaded the shotgun used to kill the victim, who had taken Mr. Phillips and his girlfriend, the shooter, into his home. He also witnessed the shooting, moved the victim’s body, and buried it in a shallow grave. He fled the city, then returned to the victim’s home about two weeks later and stayed there. He helped his girlfriend disguise herself, and then used the victim’s truck to flee once again. Mr. Phillips initially denied involvement when questioned by police. The Ontario Court of Appeal reduced his sentence from 12 years and 10 months to nine years.

[39] I turn now to the manslaughter sentencing cases submitted by the Defence, which I find more in accordance with the facts in this case. I note that the Defence also provided a number of ‘accessory after the fact’ cases, but I do not find those helpful – it is clear that Mr. Dourhnou was involved before the commission of the offence, not just after it had taken place. That is a significant difference that increases Mr. Dourhnou’s moral culpability.

[40] In R. v. Brown, 2006 ONCJ 341, 71 W.C.B. (2d) 285, Mr. Brown and his accomplice, Mr. Martin, planned to rob the victim of crack cocaine and money. Mr. Brown spoke to the victim on the phone to set up a drug transaction. Mr. Brown knew Mr. Martin had a knife, and that he intended to use it if he had to. During the robbery, Mr. Martin stabbed the victim in the chest. Mr. Brown and Mr. Martin fled the scene, and took a cab to Mr. Brown’s residence using money taken from the victim. There, the two men divided the cash and crack cocaine, then took another cab to Mr. Martin’s residence, where Mr. Martin showered and changed his clothes. Mr. Brown had an extensive criminal record, including convictions for violence. Mr. Brown pleaded guilty at an early opportunity, and expressed remorse. However, while he was at least initially cooperative with the police, he subsequently recanted his statement. Mr. Brown was sentenced to six years, less 27 months for credit for pre-trial custody.

[41] In R. v. G.L. (2005), O.J. No. 855, the co-accused, K.L., was convicted of manslaughter by a jury for his role in the shooting death of the victim. K.L. and several other individuals were to take revenge for an assault (although the victim had no part in that assault), and it was agreed that K.L.’s role was either to get the victim’s attention by asking the time, or to intimidate the victim and/or prevent his escape. K.L. ended up playing the latter role, and surrounded the victim with the other three. One of the three, G.L., had a gun, unbeknownst to K.L. G.L. struck the victim with the butt of the gun, and one of the others struck the victim with a metal pipe. G.L. then shot the victim in the head. K.L. and the others fled the scene. K.L. was 19 years old at the time, and had a youth record, as well as adult convictions for robbery and possession of marijuana. He had a difficult upbringing as a result of his parents’ separation. He received a sentence of approximately seven years: two years less day, plus five years credit for pre-trial custody. He was also placed on probation for three years. In commenting on K.L.’s culpability, Justice Trafford stated, at para. 20:

Granted, K.L. has been found guilty of manslaughter, rather than murder. Still, his role complemented the roles of each of the other perpetrators. While he did not know that G.L. had a gun and further, while he did not aid or abet G.L. in an intentional killing of [the victim], K.L. has been found guilty of a very serious crime.

[42] In R. v. MacFarlane, 2012 ONCA 82, 288 O.A.C. 114, the Ontario Court of Appeal upheld the trial judge’s decision to sentence Mr. MacFarlane, who had pleaded guilty to manslaughter, to an effective sentence of four years, followed by two years of probation. Mr. MacFarlane and a friend, Mr. Pepping, left a house party at which Mr. MacFarlane had consumed alcohol. Mr. MacFarlane saw the victim and another person on a bicycle, and identified the person on the bicycle as having stolen a bicycle from him in the past. The bicyclist escaped when Mr. MacFarlane and Mr. Pepping gave chase, but they caught the victim, whom they beat with their fists. Mr. Pepping stabbed the victim with a knife, which Mr. MacFarlane knew he was carrying. After, they returned to the party. Defence and Crown counsel agreed that the appropriate sentence was four years, but disagreed as to pre-trial credit. The trial judge, essentially adopting the Crown’s position, credited Mr. MacFarlane with 24 months of pre-trial custody.

[43] In R. v. Sandhu, 2006 CarswellOnt 1739, Mr. Sandhu was convicted by a jury of manslaughter. A group of 20 to 25 individuals, including Mr. Sandhu, surrounded the victim, who was beaten to death using a hammer, a pipe and a two-by-four. The incident arose as a result of tensions between a “Mississauga” group and a “Rexdale” group in the City of Toronto and, particularly, as a result of prior confrontations between the victim and Mr. Banwait. Mr. Banwait arranged to ambush the victim at a location where the victim believed he was going to have a fistfight with Mr. Banwait. When the victim arrived, Mr. Banwait and another immediately attacked the victim, and then gestured and yelled for the others, including Mr. Sandhu, to surround the victim for the purpose of confining and intimidating him. Mr. Banwait and two others attacked the victim with their weapons, after which all of the perpetrators fled, leaving the victim unconscious and bleeding profusely from the head.

[44] Mr. Sandhu knew the victim was unarmed, and knew that Mr. Banwait intended to apply force to the victim that created a risk of bodily harm. He confined and intimidated the victim to assist or encourage Mr. Banwait in applying this force. He was about 20 years old at the time of the offence, and had a criminal record, including convictions for assault, uttering threats and failure to comply with conditions of an undertaking, and was on probation for these offences at the time of this offence. The trial judge sentenced Mr. Sandhu to approximately seven years of incarceration (22 months incarceration plus credit for 62 months pretrial custody) and three years of probation.

[45] In R v. Thompson, 2010 ONCA 463, 256 C.C.C (3d) 51, the Crown appealed the sentencing judge’s effective sentence of four years, followed by three years’ probation. The accused, Mr. Thompson, pleaded guilty to manslaughter for his role in the stabbing death of the victim. After attending the party Mr. Thompson and several of his friends went to an apartment where the victim, a friend of Mr. Thompson, lived. The victim awoke to the partygoers going through his belongings looking for cigarettes. He began pushing several people around, including Mr. Thompson’s former girlfriend. The crowd of partygoers ganged up on the victim, inflicting 27 blunt force injuries and three stab wounds, two of which contributed to or caused the victim’s death. Mr. Thompson fled the scene after the stabbing. The sentencing judge proceeded on the basis that Mr. Thompson inflicted the non-fatal stab wound, and also accepted that provocation would have been a live issue at trial. Mr. Thompson obtained the knife without much planning. He was 19 years old at the time of the crime, was clearly very remorseful, had a relatively limited role in the homicide in that he joined an ongoing assault, and, as he did not cause the victim’s death, he was a party rather than a principal. Thus, while the effective four year sentence was at the low end of the range, the Court of Appeal upheld it.

[46] The range of sentences in these cases is between four and seven years. Regarding the two cases in which the courts imposed four-year sentences, I note that, in MacFarlane, this length was based on an agreement between the Crown and Defence, and, in Thompson, the Court of Appeal acknowledged that four years was at the low end of the range based on the facts of the case.

Conclusion

[47] While I must accept the agreed facts that Mr. Dourhnou did not know that Mr. Majed had a gun, prior to entering the residence at 829 Borthwick Avenue, Mr. Dourhnou has nevertheless pleaded guilty to an extremely serious crime. By acting as the get-away driver, Mr. Dourhnou facilitated Mr. Majed’s confrontation with the occupants of 829 Borthwick Avenue, and he did so knowing that the foreseeable consequence of his actions was serious bodily harm. Furthermore, I find that Mr. Dourhnou knew that Mr. Majed fired the three shots he heard while waiting near the residence. His decision to assist Mr. Majed in fleeing the crime scene demonstrates a total disregard for anyone who may have been shot. The sentence I impose must reflect this serious moral culpability.

[48] Specific deterrence is an important consideration in this case. Mr. Dourhnou was previously incarcerated for attempt to obstruct justice and breach of probation, and had only been released from custody for less than three months when he engaged in the conduct giving rise to the present offences. I have noted that the attempt to obstruct justice conviction also involved a homicide, although it was not proven that Mr. Dourhnou knew that the blood he was cleaning out of a car for a friend was the result of a homicide. Nevertheless, I am gravely concerned by the fact that Mr. Dourhnou, within such a short period of time, once again found himself involved in a homicide, this time in the context of a triple shooting. It is apparent that Mr. Dourhnou’s previous sentence did not succeed in deterring him from becoming involved in criminal activity and violence: I must take this into account in fashioning a sentence that will, I hope, deter Mr. Dourhnou from continuing down the path that he has thus far chosen to take.

[49] In addition, this sentence must also engage the principles of general deterrence and denunciation, not just as a result of the seriousness of the offence, but also because there is clearly a growing problem with gun violence in the City of Ottawa. The scourge of physical and gun violence surrounding drug trafficking in this city is of great concern to its residents and to this court. This case involved the shooting of three unarmed victims, midday, in a residential area, near three schools. It is drug-related, as the confrontation with the occupants of 829 Borthwick Avenue was in retribution for the theft of a “chopping” phone. This deplorable conduct must be deterred and denounced.

[50] In terms of mitigating factors, Mr. Dourhnou was 19 years old at the time of the offence; he is still a young man, and still has potential, in my opinion, to be rehabilitated. He pleaded guilty, although not at an early stage, thus saving the victims and their families from the emotional stress of a trial. Mr. Dourhnou has also expressed remorse, and acknowledged the pain he has caused the victims and their families. Whether his remorse is sincere remains to be seen.

[51] In terms of parity, I find that Mr. Dourhnou’s moral culpability, based on the Agreed Statement of Facts, is similar to that of the accused in G.L. and Sandhu. Like the accused in G.L., Mr. Dourhnou did not know that Mr. Majed had a gun, but did facilitate the attack, albeit by acting as a get-away driver rather than through his physical presence. Mr. Dourhnou had a similar level of knowledge to Mr. Sandhu, who knew that the killer in that case intended to apply force to the victim that created a risk of bodily harm. While Mr. Dourhnou did not visually witness the attacks and see the victims, as the accused in G.L. and Sandhu did, I find that Mr. Dourhnou fled knowing that Mr. Majed had fired shots, and that, obviously, there was a high likelihood that one or more people had been shot. The accused in G.L. and Sandhu both received sentences of approximately seven years.

[52] Based on the aggravating factors described above and in the interest of specific deterrence, general deterrence and denunciation, I find that it is appropriate to impose a sentence of seven years for the count of manslaughter involving Mr. Doreh, less credit for pre-trial custody. I also sentence Mr. Dourhnou to two years concurrent for the first count of aggravated assault involving Mr. Ahmed, and two years concurrent for the second count of aggravated assault involving the Mr. Iman. The sentences for the aggravated assaults involving Mr. Ahmed and Mr. Iman shall be credited against time served.

[53] Mr. Dourhnou has been in custody for 1050 days. I take judicial notice of the fact that the conditions at the Ottawa Carleton Detention Centre are very difficult; as such, Mr. Dourhnou is deserving of enhanced credit for the time he served in that institution. Applying a credit of 1.5 to 1, Mr. Dourhnou’s credit for pre-trial custody becomes 1575 days, or 4 years, 3 months and 22 days. In the result he must serve an additional 2 years, 8 months and 8 days in a federal penitentiary.

[54] Pursuant to the provisions s. 487.04 of the Criminal Code, Mr. Dourhnou shall be required to provide a sample of his DNA. Pursuant to s. 109 of the Criminal Code, Mr. Dourhnou shall be prohibited from possessing weapons or any other dangerous substances for life. Pursuant to s. 743.21 of the Criminal Code, Mr. Dourhnou is prohibited from communicating, directly or indirectly, with any member of the family of the deceased, as well as Mr. Mohamed Ahmed, Mr. Ibrahim Iman, Mr. Mark Greenaway, and Ms. Stephanie LaFlèche.

Mr. Justice Colin McKinnon

Released: February 5, 2015

COURT FILE NO.: 12-2312

DATE: 2015/02/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

ZAKARIA DOURHNOU

Accused

REASONS FOR sentence

McKinnon J.

Released: February 5, 2015