CITATION: R. v. Sahal, 2016 ONSC 6864

COURT FILE NO.: 14-4-674

DATE: 20161116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ABDIFATAH SAHAL

COUNSEL:

Paul D. Leishman and Georgette Gaganiaras, for the Crown

Dirk Derstine and David Parry, for the Accused

HEARD: October 13, 2012

REASONS FOR SENTENCE

M. Dambrot J.:

[1] Abdifatah Sahal was tried by me, with a jury, on an indictment alleging that he committed the second degree murder of Hussein Hussein on June 23, 2012. The jury found him guilty of manslaughter. At the conclusion of submissions respecting sentence, I imposed a sentence of imprisonment for 6 years, less 36 ½ months for pretrial custody, resulting in an effective sentence of three years less 15 days, with reasons to follow. These are those reasons.

The Homicide

[2] The following is a brief recitation of the facts surrounding the homicide. Some of them flow inevitably from the verdict of the jury, but in any event, I am satisfied of all of them beyond a reasonable doubt.

[3] In June 2012, Hussein Hussein was the occupant of apartment 911, 100 Harrison Garden Boulevard in Toronto. A group of people, including Hussein, were partying in the apartment during the period from at least midday on June 22, 2012 until the evening of June 23, 2012. The persons present began consuming alcohol early on the June 22, and continued through the night. There were a great many empty beer and alcohol bottles in the apartment. The persons present were Magan Omar, Ahmad Farah, Abdinasar Yusuf, Abadir Jimale and five young women whose names were not proved in evidence.

[4] Between 6:30 p.m. and 6:45 p.m. on June 23, Sahal and Hussein were alone in the living room. Omar, Yusuf and Jimale left the apartment to shop for food at 6:29 p.m., and returned to the building at 7:07 p.m. The five young women had already gone before Omar, Yusuf and Jimale went shopping, and never returned. Farah, who testified that he drank and smoked weed at the apartment and got so “fucked up” that he didn’t know who else was there, was asleep in a bedroom.

[5] At about 6:40 p.m., Sahal shot Hussein with a single bullet to the chest and killed him. Farah awoke, entered the living room and discovered Hussein’s body. Sahal and the gun were already gone. Farah went screaming into the hall and aroused the neighbours, asking for help. One of the neighbours called 911 at 6:45 p.m.

[6] At the same time as the 911 call, a video camera on the main floor of the apartment building recorded Sahal running down a hallway and leaving the building through a side door. His head was covered with his jacket, and was carrying a bag in which the gun was concealed.

[7] After the paramedics arrived, Farah also fled the scene. He had criminal antecedents, and was fearful of getting blamed for the shooting. On his way out of the building he encountered Omar, Yusuf and Jimale and told them not to return to the apartment. They left as well.

[8] The two main issues at trial were the identity of the killer, and, if it was Sahal, his state of mind. The jury was obviously satisfied that Sahal was the killer. With respect to his state of mind, certain conclusions can be drawn about the jury’s findings upon consideration of the charge to the jury.

[9] In my charge, I instructed the jury that before they could find that Mr. Sahal committed manslaughter, the Crown had to establish the following elements beyond a reasonable doubt:

1. that Mr. Sahal caused the death of Mr. Hussein;
2. that Mr. Sahal caused the death of Mr. Hussein unlawfully;
3. that the unlawful act that caused death was one that was objectively dangerous, or, in other words, was likely to subject another person to a risk of bodily harm that is neither trivial nor transitory; and
4. that a reasonable person in all the circumstances would have appreciated that bodily harm that is neither trivial nor transitory was the foreseeable consequence of the dangerous act that was being undertaken.

[10] With respect to the second item, causing the death unlawfully, I instructed the jury that they could conclude that Mr. Sahal caused Mr. Hussein’s death by means of an unlawful act if they were satisfied beyond a reasonable doubt that he discharged the firearm resulting in the firing of the gunshot that killed Mr. Hussein and that:

… when he discharged the firearm, he did it intentionally, knowing that another person was present, and not by accident.

[11] As a result, in finding Sahal guilty of manslaughter, the jury necessarily found that:

1. Sahal discharged the firearm that shot the bullet that caused the death of Hussein;
2. when he discharged the firearm, Sahal did it intentionally, knowing that another person was present, and not by accident (the unlawful act);
3. that the unlawful act that caused death was one that was objectively dangerous, or, in other words, was likely to subject another person to a risk of bodily harm that is neither trivial nor transitory – so Sahal necessarily shot at least in the direction of the deceased;
4. that a reasonable person in all the circumstances would have appreciated that bodily harm that is neither trivial nor transitory was the foreseeable consequence of the dangerous act that was being undertaken – so it was foreseeable that he would hit and harm the deceased; but
5. Sahal did not mean for Mr. Hussein to be killed, or for bodily harm to be caused to Mr. Hussein that he knew was likely to kill him.

[12] Stated more briefly:

1. Sahal intentionally discharged the firearm knowing that Mr. Hussein was present;
2. Sahal shot in the direction of Mr. Hussein;
3. it was reasonably foreseeable that Sahal would hit and do harm to Mr. Hussein;
4. Sahal did not mean for Mr. Hussein to be killed; and
5. Sahal did not mean to cause bodily harm to Mr. Hussein that he knew was likely to kill him.

[13] This leaves only two rational possibilities: either Mr. Sahal intentionally shot at Mr. Hussein intending to cause a non-fatal wound; or Sahal intentionally shot in Mr. Hussein’s direction intending to miss him, but no doubt to scare him. Given the absence of any direct evidence of what took place at the time of the shooting, it is difficult to be satisfied beyond a reasonable doubt that one or the other of these scenarios is actually what took place. But there are circumstances that bear on the issue.

[14] First, Hussein was shot in the chest. As a result, it is far more likely that Sahal was aiming for Hussein’s body, and accidentally shot him in the chest than that he was intending to miss him entirely, and accidentally shot him in the chest. Second, Sahal’s fingerprints were found on what appears to be a drug debt list, raising the inference that a dispute about a drug debt was the cause of the confrontation between the two men. Third, it is most unlikely that Sahal had the gun for an innocent purpose, having regard to the fact that he fled with it, and after he disposed of it, it ended up being used in another shooting.

[15] These circumstances lead me to the conclusion that the discharge of the firearm was not only intentional, but it was done for the purpose of intimidation in the course of a dispute about illicit activity. I am satisfied beyond a reasonable doubt that Sahal, for the purpose of intimidating Hussein for an unlawful purpose, intended either to hit Hussein with the gunshot, or to effect a near miss, but I am unable to determine which was the case. For the purposes of this sentence proceeding, I will assume that Sahal did not intend to hit the deceased.

The Circumstances of the Offender

[16] Sahal is 26 years of age. At the time of the offence, he was 22. He is one of four brothers. His parents emigrated from war-torn Somalia in search of a better life for the family. Sahal was born in Canada, and raised in a two-parent household with four brothers. He spent his early years in an apartment in the west end of Toronto. He moved to Windsor with his family when he was 11, and returned to Toronto at fifteen, where he attended Weston Collegiate. He did not finish high school. His parents took him back to Africa to visit and to learn about his culture. They returned to Canada three years later.

[17] Upon his return, Sahal worked for a charity, and then alongside his father at an Avis car rental establishment. He pursued a career in sales at Avis as a service agent beginning in 2011.

[18] Sahal is in a committed relationship and was about to have a child on the date of sentencing submissions. His fiancé attends Concordia University and is eight months pregnant.

[19] Sahal has no criminal record, has been a good son and is spoken well of by his family and friends, who have provided a number of letters attesting to their good opinion of him. His family continues to support him. He has been living with his family on house arrest since being released on bail.

[20] Mr. Sahal spent 24½ months in pre-trial custody, and a further 15 months on house arrest.

The Submissions of Counsel

[21] The offence of manslaughter carries a maximum punishment of life imprisonment. It carries a four-year minimum when a firearm is used in the commission of the offence. Counsel for the offender argued that the minimum punishment violates sections 7 and 12 of the Charter.

[22] The Supreme Court of Canada concluded that this minimum punishment does not violate s. 12 of the Charter in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. The offender says that I am entitled to revisit this decision, and should do so because the approach to minimum punishments in the s. 12 jurisprudence has evolved since 2008, and because of his additional argument concerning s. 7. I heard the argument advanced by the offender, but in the end I will not determine the issue, for the following reasons.

[23] First, this is not a new constitutional claim. As I have said, the Supreme Court has considered it before. Second, while it is a bit of an oversimplification to say this, the argument raised by the offender is grounded on some new reasonable hypotheticals developed by counsel for Sahal that weren’t considered in Ferguson. Third, the s. 7 argument is based on an allegation of overbreadth, which is an argument that closely resembles the s. 12 argument. Finally, this is a very serious offence of manslaughter. Even if there were no minimum punishment, I would impose a sentence well in excess of four years in any event.

[24] As for the quantum of sentence, the offender argues that if there is no minimum, then a sentence of time served is appropriate. If there is a minimum punishment, then a sentence of four years would be appropriate, less approximately three years credit for pre-trial custody. Crown counsel argues that a sentence of 7½ years, less approximately 3 years for credit for pre-trial custody would be appropriate.

Disposition

[25] A fit sentence for Sahal must be proportionate to the gravity of this very serious offence, and to his moral blameworthiness. While it is impossible to find a case that involves an offence that approximates this one, it is my assessment of the cases provided to me by counsel that bear some similarity to this one that a sentence of six years falls easily into the appropriate range, and falls far from the top of the range. Were it not for the mitigating effect of the positive things that have been said of Sahal – his relative youth, the absence of a criminal record, his strong family support, his efforts at employment, his commitment to his relationship with his girlfriend, and the positive things said about him by his family and friends – I would have imposed a sentence significantly greater than six years. In my view, a six year sentence balances the paramount need to strongly denounce gun violence of the sort committed by Sahal and the need for general deterrence against his rehabilitative prospects. I have given him full credit for his pre-trial custody, but no credit for his time on house arrest. I cannot reduce a sentence further below the minimum on that basis (R. v. Shi, 2015 ONCA 646 at para. 5), but I would have given little if any additional credit for it in any event. While the offender argues that his house arrest prevented him from working with his father, I observe that he never sought an alteration of his bail to permit it. To me, this is an afterthought.

M. Dambrot J.

RELEASED: November 16, 2016

CITATION: R. v. Sahal, 2016 ONSC 6864

COURT FILE NO.: 14-4-674

DATE: 20161116

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ABDIFATAH SAHAL

REASONS FOR SENTENCE

M. DAMBROT J.

RELEASED: November 16, 2016