Her Majesty the Queen v. Ali, 2016 ONSC 8190
Information No. 14-13745
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
YAQOUB ALI
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE J. MARANGER
On September 7, 2016 at OTTAWA, Ontario
APPEARANCES:
P. Napier Counsel for the Crown
L. Russomanno Counsel for the Accused
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr- Re-
WITNESS: in-Ch. exam. exam.
n/a
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
n/a
Transcript Ordered: September 9, 2016
Transcript Completed: September 14, 2016
Judicial Approval: September 28, 2016
Ordering Party Notified: September 28, 2016
WEDNESDAY, SEPTEMBER 7, 2016
On June 16, 2016, Yaqoub Ali was found guilty of 10 different counts relating to his having shot someone with a pistol on December 26, 2014 at a shopping mall known as the Tanger Outlet Mall situated on the west side of the City of Ottawa.
The victim was Adele Al Enzi. He was shot in the foot, running shoe. He did not sustain a serious injury, he gave no victim impact statement and never gave a statement to the police implicating the accused in the crime.
The shooting took place at 3:35 p.m. at a shopping mall on Boxing Day. Video surveillance evidence viewed at trial show that families with small children were in the immediate vicinity of the shooting. It was a reckless, dangerous act and it is only on account of good fortune that no one was seriously injured or killed.
Applicable sentencing principles/sentencing range
Counsel agreed that the appropriate range of penalty for this type of crime is 7 to 11 years imprisonment. The Ontario Court of Appeal in R. v. Bellissimo, 2009 ONCA 49, [2009] O.J. No. 179 (C.A.) stipulated this to be the appropriate range.
Having a minimum starting range of 7 years imprisonment is a reflection of the Canadian criminal justice system's view of this type of crime. Clearly, the primary sentencing objective is denunciation and general and specific deterrence. While rehabilitation is always a consideration in these cases it is not the primary objective.
Positions of Counsel
Counsel for the defence submits that the appropriate penalty in the circumstances of this case is a global penalty of 7 years. While the Crown seeks a global penalty of 10 years imprisonment, 9 years for the shooting and 1 year consecutive for possessing a firearm while prohibited.
Counsel agree that the credit to be afforded the accused for dead time should be 2 years and 6 months, 912 days, based upon a calculation ratio of 1 to 1.5 for each day in pre-trial custody.
Counsel for the defense advocates a global penalty of seven years highlighting: the relative young age of the accused, he was 26 when the offence took place and 28 years of age today, that while he has a criminal record it is a relatively minor record where he has never served any significant term of imprisonment for any previous transgressions, and finally, the fact that no one was injured and that the jurisprudence where the penalty range was 10 years usually involves someone who was seriously injured. In this case there was no serious injury.
Crown counsel argued that the time and place of the shooting justifies it being in the high range, and that, furthermore, a consecutive penalty should be imposed for the fact that he was carrying a firearm while prohibited pursuant to section 109, and for that prohibition to mean anything a consecutive penalty should follow in the circumstances of this case.
The discharging of a pistol on Boxing Day at a busy mall is an outrageous crime, and it would be difficult to describe it any better than did Marius Felix in his Victim Impact Statement. Marius Felix was a witness at the trial and came across as a straightforward, honest member of community and, basically, called it the way he saw it. And I quote him:
"My emotional impact above all is anger. The reality that any person, for whatever reasons, would pull a gun in a crowded place, point it at another person, verbally threaten that person then fire the gun at that person is unbelievably dangerous and reckless. I was and remain angry that this act put the lives of many innocent people, including infants, children, mothers, fathers and grandparents at risk. The decisions by Mr. Ali to plan and then follow through and act in such a manner is reprehensible, irresponsible, selfish and completely lacking in moral or ethical judgment. The act was heartless and self-serving, and displayed a complete lack of care, concern and compassion for the people in the mall."
While I don't share the view that there is any evidence of planning on the part of Yaqoub Ali, the balance of his statement is spot on.
This being said, however, the fact is no one was seriously injured. The fact is the accused was 26 years’ old when the offence took place, which leads me to the conclusion that for the shooting itself, I would impose a penalty of seven years’ imprisonment. However, I agree with the Crown that a consecutive penalty should be imposed for carrying a weapon while prohibited, and on that count I would add one year consecutive to the seven years for a global penalty of eight years.
With credit for time served the warrant of committal will, therefore, read on Count 11, 4 ½ years’ imprisonment; on count 9, 1 year imprisonment consecutive; on counts (1, 2, 3, 4):
4½ years concurrent. On the remainder of the counts 1 year concurrent. There will be a lifetime prohibition pursuant to section 109; there will be an order for the providing of DNA and there will be an order prohibiting Yaqoub Ali communicating with Abraham Bihi, Abdoulazziz Al-Enzi and Adel Al-Enzi. Was there anybody else?
COURTROOM CLERK: So, that’s Adel Al-Enzi, Abdoulazziz Al-Enzi and Abraham Bihi.
THE COURT: Yes.
COURTROOM CLERK: Yes, Your Honour, thank you.
THE COURT: I have the spelling, the correct spelling here.
COURTROOM CLERK: Thank you. Just to make sure, Your Honour, that I got that right. [ whispering between the Clerk and the Judge]
MR. RUSSOMANNO: Your Honour?
THE COURT: Yes.
MR. RUSSOMANNO: I just rise for the moment because it was my oversight that at the last occasion I neglected to mention the issue of Mr. Bihi. I know Your Honour has made your decision with respect to Mr. Bihi.
THE COURT: Okay.
MR. RUSSOMANNO: My friend made submissions or asked Your Honour to consider the prohibition of communication with Mr. Bihi. All I would say with respect to Mr. Bihi is that there doesn’t appear to be any evidence that he was involved in this incident, and he is a friend of Mr. Ali. There’s no animosity between the two parties.
THE COURT: I took it that it wasn’t a contested issue, but I mean.
MR. RUSSOMANNO: That’s why I rise at this moment, Your Honour, because it’s my oversight that I didn’t bring it up, so.
THE COURT: I could revisit it. I mean, it’s not that - one thing I can’t do is overturn myself or change my - I can change an aspect of the sentencing, you’ve alerted it to me now.
MR. RUSSOMANNO: I can understand the other individuals, given....
THE COURT: I’m going to suggest that maybe we just leave Mr. Bihi out of it?
MR. NAPIER: That’s fine, Your Honour.
THE COURT: So, the communication prohibition will not apply to Abraham Bihi, Madam Registrar.
MR. RUSSOMANNO: Thank you, Your Honour.
MR. NAPIER: The reason I asked for that, Your honour, just for the record, is he was one of the individuals in the picture book that you got.
THE COURT: Right, he was in the mall.
MR. NAPIER: In the mall and was one of the individuals in the photographs.
THE COURT: I believe he was coming and visiting him during the trial.
MR. RUSSOMANNO: He was subpoenaed, so he had to be here, yes.
MR. NAPIER: And the presentence custody, Your Honour, that would be....
THE COURT: He was visiting because he was subpoenaed, right.
MR. NAPIER: The presentence custody will be noted on the warrant of committal, as well.
COURTROOM CLERK: At two years and six months?
THE COURT: Two and a half years.
COURTROOM CLERK: Two and a half years.
THE COURT: 2 years, 6 months, 912 days.
MR. NAPIER: Thank you very much, Your Honour.
MR. RUSSOMANNO: Thank you very much.
THE COURT: Thank you.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Tracy Kinach, certify that this document is a true and accurate transcription, to the best of my skill and ability, of the recording of R. v. Yaqoub Ali in the Superior Court of Justice held in Courtroom No. 31 at 161 Elgin Street, Ottawa, Ontario taken from CD No. 0411_CR31_ 20160907_ 090457_10_MARANGRO. dcr which has been certified in Form 1 by V. Rojas.
September 28, 2016 Tracy Kinach
MAG Authorized – ACT ID#4842683823
Member of the Court Reporter Group
of Ottawa
www.courtreportergroupofottawa.ca
Member in Good Standing - The Court Reporters'
Association of Ontario
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