CITATION: R. v. Othman, 2016 ONSC 8115
COURT FILE NO.: CRIMJ(P) 1267/15
DATE: 2016-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Latimer, for the Crown
- and -
HAMZA OTHMAN
D. Moore, for the Defendant
REASONS FOR SENTENCE
André J.
[1] A jury convicted Mr. Othman of second degree murder in the death of Mr. Zack Jelovsek in October 2016. The Crown seeks a period of parole ineligibility of 12 years while the defence maintains that the parole ineligibility period should be 10 years.
BACKGROUND FACTS
[2] Mr. Othman went to a party to which he had not been invited, on October 18, 2014. At one point, the host of the party asked Mr. Othman and his friends to leave. Before leaving, one of the partygoers commenced an altercation with one of Mr. Othman’s friends. The altercation continued after Mr. Othman and his friends walked towards their vehicles. The partygoer who had started the altercation punched Mr. Othman’s friend. Mr. Othman had an altercation with this male who was accompanied by a number of partygoers including Mr. Jelovsek. At one point Mr. Othman retrieved a knife which he had brought to the party and stabbed Mr. Jelovsek in the chest. There was no evidence that Mr. Jelovsek had acted aggressively toward Mr. Othman.
[3] The jury rejected Mr. Othman’s testimony that he had acted in self-defence and concluded that he had formed an intention to kill when he stabbed Mr. Jelovsek.
ANALYSIS
[4] Prior to determining, pursuant to section 718.1 of the Criminal Code of Canada (the “Code”), what an appropriate sentence should be in this matter, I am obliged to address a preliminary matter raised by Mr. Othman’s counsel.
[5] On November 23, 2016, Mr. Moore received information from the Crown that on October 7, 2016, two days after the jury had rendered a verdict in the trial, a juror attended the Jelovsek residence and requested contact information for Petra Kraner Jelovsek, the mother of the deceased. She indicated that she wished to express her condolences to Mrs. Jelovsek. Mr. Grayson Welsford, who was present, gave the juror Mrs. Jelovsek’s cell number. The juror then stated that “the jury made their decision quickly as they knew he was guilty.”
[6] A police officer interviewed Mr. Welsford. Mr. Welsford indicated that the lady had identified herself as a juror and had made the request for her to offer condolences to Mrs. Jelovsek. Mr. Welsford advised the officer that no further discussions took place other than the juror stating that they had made their decision quickly as they knew that Mr. Othman was guilty. This statement has been marked as a lettered Exhibit in this hearing.
[7] Mr. Moore asks the court to conduct an inquiry of this juror for the following reasons:
(1) There appears to be more to this interaction with the juror than is set out in Mr. Welsford’s statement since the statement does not reflect a 5-10 minute conversation;
(2) The statement that “the jury made their decision quickly as they knew he was guilty” may be a violation of s.649 of the Code;
(3) Attendance at the residence by the juror has on air of impropriety;
(4) The Crown has declined to arrange an interview with Bogdan Jelovesk, who was present during the visit, and to have Mr.Welsford testify under oath.
[8] This matter raises two discrete issues namely:
(1) Am I obliged to conduct an inquiry into the statement made by a juror after the verdict in this case?
(2) Does the statement attributed to the juror vitiate the jury’s verdict in the case?
ISSUE NO.1 OBIGATION TO CONDUCT AN INQUIRY
[9] It is trite law that under the common law, statements made, opinions expressed, arguments advanced and votes cast by jurors in the course of their deliberations are inadmissible in any legal proceedings: see R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R 344, 43 C.R (54) 203,155 C.C.C. (3d) 97. Jury secrecy, the cornerstone of our jury system, applies to matters intrinsic to their deliberations, including the thoughts, sentiments, opinions, arguments and votes of individual jurors about their decision making: see R. v. Freebold (2001), 2001 BCCA 205, 152 C.C.C (3d) 449 (B.C.C.A); leave to appeal refused (2001), 273 N.R. 393 (S.C.C).
[10] Section 649 also makes it an offence, punishable on summary conviction, for a juror to disclose any information relating to the proceedings of the jury when it was absent from the courtroom.
[11] It is doubtful whether the utterance attributed to the juror violates s. 649 of the Code given that it was clear to all parties that the jury, which deliberated less than four hours, had rendered their verdict relatively soon after retiring. That, in and of itself, does not constitute grounds for an inquiry.
[12] Second, an inquiry into the verdict of the juror would pierce the veil of secrecy of their deliberations. An inquiry would delve into how the jury arrived at their verdict and the votes of the jury. That subject, as noted in Pan, is inadmissible in any legal proceedings. To that extent, an inquiry would not be helpful in this case.
[13] Furthermore, there have been no allegations of impropriety about the jury’s deliberations. It was entirely up to the jury to determine how long or how short a period of time they deliberated in this trial. The fact that they rendered a verdict “quickly” is not evidence of any impropriety on their part. There is no suggestion of jury tampering, undue influence or any wrongdoing by any juror. Accordingly, in my view, there is no need for an inquiry into this matter.
[14] The trial judge is mandated in certain instances, to conduct a hearing for the purpose of creating a record for appellate consideration; see R. v Hassan, [2013] O.J No. 3150, 2013 ONCA 238. The statement of Mr. Welsford to the police can serve this function.
[15] I am also persuaded by the Hassan case that an inquiry is unnecessary in this case. In that case, a juror sent a letter to the trial judge after the verdicts were delivered, claiming that her fellow jurors had coerced her into returning a guilty verdict. The letter also referred to comments made by court officers responsible for the jury during their deliberations. The Court of Appeal held at para. 6 that: “The vast majority of the allegations made by the juror could not be considered under the juror secrecy ratio in R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344.
[16] In my view, the comments attributed to the juror do not, in any way, vitiate the jury’s verdict in Mr. Othman’s trial.
APPROPRIATE SENTENCE
[17] The statutory penalty for second degree murder is life imprisonment. The only issue in this hearing is the appropriate period of parole ineligibility.
[18] Regarding this issue, s. 745.4 of the Code provides as follows:
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of the Code an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
[19] Pursuant to s. 745.4 of the Code, the four issues that are relevant to a determination of parole ineligibility are:
(1) the character of the offender;
(2) the nature of the offence;
(3) the circumstance surrounding its commission; and
(4) the recommendation of the jury.
[20] In R. v. Shropshire, 1995 SCC 47, [1995] 4 S.C.R. 27, 43 CR (4th) 269,102 C.C.C. (3d) 193, the Supreme Court of Canada noted that the general rule for a period of parole ineligibility is 10 years.
[21] In R. v. Gourgeon, 1981 BCCA 328, [1981] 21 C.R.(3d) 384 (B.C.C.A.) the British Columbia Court of Appeal identified the following factors in determining the period of parole ineligibility:
(1) the minimum period of parole ineligibility should not be extended beyond the minimum of ten years except in unusual circumstances;
(2) the imposed sentence should not be applied by rejecting the finding of the jury that the killing was not planned and deliberate and not one of the offences in s. 214 (5).
(3) the recommendation of the jury;
(4) the cases where the offender cannot be released upon parole until 25 years have elapsed;
(5) the character of the accused;
(6) the nature of the offence and the surrounding circumstances;
(7) any ameliorating or mitigating circumstances;
(8) public confidence in the administration of justice;
(9) deterrence;
(10) denunciation of the crime;
(11) sentences in like cases;
(12) protection of society.
CHARACTER OF THE OFFENDER
[22] Mr. Othman was 19 years old at the time of the offence. He was alienated from his family at the time of the offence and was living with a friend. Mr. Othman has no record. He attended college and was enrolled in a business course at the time of the offence. He has a very hardworking family who is very supportive of him. Indeed, 39 family members and friends have written reference letters supporting Mr. Othman. They have pledged to support him in and out of prison.
[23] Despite Mr. Othman’s laudable qualities, he harboured a great deal of anger which appeared to have played a significant role in his murder of Mr. Jelovsek. He had conflicts with his father who, paradoxically, he blamed for being tough with him. Prior to the murder, Mr. Othman had apparently gravitated towards a questionable peer group. He had affected the mannerisms, lifestyle and bravado of the group and, based on his police statement, clearly prided on his reputation as a “tough” guy.” This likely explained why he armed himself with a knife before attending the party that fateful evening.
[24] I am prepared to find that Mr. Othman is remorseful. He has apologized to Mr.Jelovsek’s family. He has accepted responsibility for his actions. It is hoped that if Mr. Othman undergoes counselling for anger management and family-related issues, he can, with the assistance of his very supportive family, become fully integrated into the society.
NATURE OF THE OFFENCE
[25] Mr. Othman has been convicted of one of the most serious offences in the Code for which the punishment is life imprisonment.
CIRCUMSTANCES SURROUNDING THE OFFENCE
[26] Unquestionably, there are many egregious aspects to this offence. This was a senseless killing. Mr. Jelovsek did not deserve to die in this manner. He did nothing wrong other than attend a party where he was having fun with a number of his friends. There was simply no justification for the snuffing of a life which was so full of promise.
[27] It is true that Mr. Othman did not initiate the physical altercation. It is also true that he was not the one who first branded a weapon.
[28] But, as the jury clearly concluded, nothing justified his decision to retrieve his knife from his pocket and plunge it into Mr. Jelovsek’s chest. It does not matter that Mr. Jelovsek may not have been the intended victim. What matters is that Mr. Othman viciously stabbed Mr. Jelovsek when, if his testimony was accepted, he was engaged in a fist fight with another male.
[29] Following the stabbing, Mr. Othman threw the knife into a drain on a nearby street and washed his clothing to remove all traces of evidence that connected him to the stabbing.
[30] Mr. Othman’s action has had a terrible impact on Mr. Jelovsek’s family. To say that his parents, siblings, aunts, friends, and other relatives have been devastated by his death is a gross understatement. In the aftermath of his death, his parents have gone their separate ways. One of his aunts has been forced to take time off from her job. His sister has lost a considerable amount of time from school on account of her brother’s death, while his younger brother has still not gotten over the trauma caused by his brother’s violent and senseless death.
RECOMMENDATION OF THE JURY
[31] Five of the jurors made no recommendation; 3 recommended 10 years, while 4 recommended 15 years parole ineligibility.
DECISION
[32] What is the appropriate period of parole ineligibility in this case, considering the facts enumerated in Shropshire and elaborated in Gurgeon?
[33] The Crown relies on a number of cases to justify its position that 12 years of parole ineligibility is appropriate.
[34] In my view however, the facts in the cases upon which the Crown relies are more egregious than the facts in this case.
[35] For example, in R. v. Savin, [2013] O.J. No. 5931 (S.C.J.) where the period of parole ineligibility was fixed at 13 years, the accused stabbed two victims during an altercation at a dance. One victim died while the second, who suffered stab wounds in the abdomen, went through a long period of recovery.
[36] In R. v. Arroyo, [2005] O.J. No. 1092 (ONCA), the Court of Appeal dismissed an appeal of a 12-year period of parole ineligibility following a conviction for second degree murder. In that case, the accused stabbed the victim three times in the chest and abdomen. Following the fatal stabbing, he left the city with his family before being arrested. The Crown also led evidence at the sentencing hearing that the accused was preoccupied with violence and habitually drove around with a knife.
[37] In R. v. Krasniqi, [2009] O.J. No. 779 (S.C.J.), the court fixed the period of parole ineligibility at 14 years for second degree murder. In that case, the accused, following a confrontation on a dance floor at a bar, murdered the victim using a fish filleting knife. Following the killing, the accused obtained false travel documents and fled to New York. But for a casual meeting with a Toronto visitor who recognized the accused from Wanted Posters, the accused would have gone undetected in the USA for an indefinite period. At the time of the incident, the accused was on bail for assault and possession of a prohibited weapon and was also the subject of a court order that prohibited him from possessing any weapon.
[38] In R. v. Bengy, 2012 ONSC 4463, [2012] O.J. No. 3694 (SCJ), the 19-year-old accused who was convicted by a jury of fatally stabbing the victim was sentenced to life imprisonment with parole ineligibility fixed at 11 years. Like Mr. Othman, Mr. Bengy had armed himself with a knife before attending a social event, had used the knife during a fist fight in which the victim was unarmed and had intentionally killed the victim. Mr. Bengy however, cooperated with the police and had a reasonable prospect of rehabilitation.
[39] In my view, the latter case is the one which is most similar to this case. Mr. Othman brought a knife to a social event and used it to stab an unarmed young man who had done absolutely nothing to him. He then fled the scene with his friends and later tried to hide the evidence. His callous actions have had a devastating effect on Mr. Jelovsek’s family and friends.
[40] Mr. Othman cooperated with the police to a limited extent by showing them where he had disposed of the murder weapon. He also provided an inculpatory statement although he sought to disavow it when he testified at his trial.
[41] But for Mr. Othman’s relative youth, the absence of a criminal record, the widespread support he enjoys in the community, his remorse and prospects for rehabilitation, the appropriate period of parole ineligibility would have been 13 to 14 years.
[42] In my view however, the appropriate period of parole ineligibility in this case is one of 11 years.
[43] The sentence which I impose upon Mr. Othman is one of life imprisonment with no parole for a period of 11 years. This sentence, if I am to paraphrase Mr. Jelovsek’s father, “will not light the candle of Zack’s life” but hopefully, it will help to remove the veil of mourning that have hung over Zack Jelovsek’s family and friends since October 18, 2014.
[44] There will also be the following ancillary orders:
(1) DNA order (primary designated offence).
(2) Section 109 order for life.
André J.
Released: December 23, 2016
CITATION: R. v. Othman, 2016 ONSC 8115
COURT FILE NO.: CRIMJ(P) 1267/15
DATE: 20161223
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
HAMZA OTHMAN
REASONS FOR SENTENCE
André J.
Released: December 23, 2016