CITATION: R. v. Monney, 2016 ONSC 1007
COURT FILE NO.: CR-15-5000062
DATE: 20170210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL MONNEY AND YASIN ABDULLE
Defendants
Paul Zambonini and Andrea MacGillivary, for the Crown
Ann Bergenstein, for the Defendant, Michael Monney;
Brian Ross and Christopher Rudnicki, for the Defendant, Yasin Abdulle
HEARD: December 16, 2016 and January 2017
REASONS FOR SENTENCE
CLARK J.
INTRODUCTION
[1] On August 12, 2013, Yusuf Ahmed was shot to death outside an apartment building in northwest Toronto. Michael Monney, Yasin Abdulle and Keon Bryce, were charged with first degree murder. Commencing October 31, 2016, the three men were tried before this court sitting with a jury. On November 30, the jury acquitted Mr. Bryce, but found Mr. Monney and Mr. Abdulle guilty of second degree murder. They are now before the court to be sentenced.
BACKGROUND
[2] At trial, the Crown alleged that the motive for the murder was animus between two street gangs that exist in that area of the city, the Tandridge Cripz and “A-block”. The Tandridge Cripz dominate a Toronto Community Housing complex comprised of a high-rise apartment building situate at 75 Tandridge Crescent and a series of townhouses that flank the building to the north and east (“Tandridge”). A-block was alleged to dominate a nearby community housing complex consisting of three high-rise apartment buildings, situate at 234, 236 and 238 Albion Rd. and an adjacent building at 2 Armel Court (“Albion”). I say “alleged” because it was never proven at trial that A-block existed at the time of the murder. That said, I am satisfied beyond a reasonable doubt that there was a group of young men who either lived at or hung around Albion and that there was animosity between them and the Tandridge Cripz. I base these conclusions on the evidence heard at trial of a series of violent incidents that took place in the two neighborhoods over the course of the spring and summer of 2013. Since those incidents are set out in some detail in my reasons on one of the pre-trial applications in this matter, I do not propose to repeat them here.
THE MURDER
[3] On August 12, 2013, over the course of an approximately forty minute period before the murder, closed circuit security television (“CCTV”) from Tandridge shows Mr. Abdulle, Mr. Monney and Mr. Bryce each walking separately toward a derelict car, registered to Mr. Monney, that he kept in the parking garage at Tandridge. The gang used the car to store communal firearms and ammunition. The Crown alleged, and Mr. Abdulle (the only accused to testify at trial) confirmed, that they were each looking for a handgun. Bryce, last of the three to attend the car, found the gun, put it in his knapsack, went to the front yard of Mr. Monney’s nearby townhouse, where Mr. Abdulle and Mr. Monney were waiting, and gave it to Mr. Abdulle. Mr. Abdulle put the handgun in his waistband, whereupon he, Mr. Monney and a third individual, Shavoy Campbell, walked off in the direction of Humber Valley Golf Course, which separates Tandridge and Albion. A camera, earlier secreted by the police on the golf course to monitor comings and goings between the two areas, captured the three men entering the golf course through a hole in the fence, but leaving a few minutes later, going back in the direction of Tandridge.
[4] After returning to Tandridge, Mr. Abdulle and Mr. Monney met one Emmanuel Ansah. Ansah, driving his black Audi, had just arrived at Tandridge with Christopher Fosu, another member of the Tandridge Cripz. At Fosu’s instigation, Ansah drove Mr. Abdulle and Mr. Monney to Albion. I note, parenthetically, that Ansah was earlier tried separately for murder, but acquitted.
[5] Minutes before the shooting, CCTV at Albion (Camera 15) shows the deceased and his companion of that day, Kasim Mohamed, standing near a small maintenance building, situate between the buildings at 234 and 236 Albion Rd., talking with two other young men, Omar Mohamed and Muktar Mohamed. Kasim Mohamed and the deceased are then seen to walk off in the direction of the location at which the shooting occurred moments later. There is nothing unusual about the behaviour of either the deceased or Kasim Mohamed during this period of time.
[6] At about 3:00 p.m., another CCTV camera in the Albion complex captures Ansah’s Audi entering the parking lot. Mr. Abdulle and Mr. Monney get out of the car and walk out of the camera’s view. But, less than 30 seconds later, they reappear on camera, running back to the car. Once they were in the car, Ansah then sped away. In that brief period, Yusef Ahmed had been shot in the throat and lay dying nearby.
[7] Mr. Abdulle testified that he went to Albion to do a drug deal he had pre-arranged with one Omar Abdi. (Mr. Abdulle also referred to this person as Abdi Omar. He said that, even though he knew him from school, he did not know which name was his surname.) Mr. Abdulle said he got the drugs he needed from Mr. Monney, but, since he did not have enough money to pay for them in full at that time, and since Mr. Monney was unaccustomed to extending him credit, Mr. Monney felt it necessary to accompany him to Albion.
[8] Mr. Abdulle said that, as he and Mr. Monney walked into the Albion complex, the deceased, Yusef Ahmed, and Kasim Mohamed, approached and attempted to rob him. He said that the deceased said to him, “Send the fuckin’ drugs.” Abdulle was not able to explain how the deceased or Mohamed would have known that he had drugs on him. At the same time as he contended the deceased demanded the drugs, he said he noticed a handgun in Mohamed’s hand.
[9] In response to the deceased’s demand, Abdulle said he pushed the deceased and turned to run. As he ran, he said, Mohamed fired a shot at him. He said that, fearing for his life, he turned, pulling out his firearm as he did, and fired two shots in the general direction of Ahmed and Mohamed. He said he did not aim at, or actually attempt to shoot, either man; rather, he said, he simply fired to discourage Mohamed from firing again.
[10] Even though the jury rejected self defence, defence counsel argued strenuously on the sentencing hearing that there remains a reasonable doubt that, just as Mr. Abdulle testified, this was a drug deal gone terribly awry. I reject these submissions for the reason that Mr. Abdulle’s account does not coincide with the other evidence that I accept, to which I now turn.
[11] To begin, apart from Mr. Abdulle’s evidence that Mr. Ahmed approached and demanded that he surrender his drugs, which account I unequivocally reject, there is no evidence that the drug deal Mr. Abdulle says he went to Albion to transact ever actually existed and, more importantly, no evidence that either Mr. Ahmed or Mr. Mohamed knew anything about this supposedly pending drug deal. While the mere possibility cannot be excluded, without some evidence that Mr. Ahmed and Mr. Mohamed knew about it, the notion that they did is purely speculative.
[12] Further, at the time Yusef Ahmed and Kasim Mohamed started walking toward the building at 236 Albion, Ansah must have only just arrived in the parking lot. Looking at the scale drawings in exhibit, it is difficult to say with certainty whether the spot where Ansah parked is visible from where Mr. Ahmed and Mr. Mohamed were standing, by the small maintenance building, before they walked toward 236. But, even assuming that it was visible, there is no evidence that they knew when Mr. Abdulle would arrive or, more importantly, that they knew he would arrive in a black Audi. That is obvious because even Mr. Abdulle himself did not know Ansah would drive him to Albion, since that arrangement only came into being when Mr. Abdulle returned to Tandridge, after originally setting out for Albion on foot. If Mr. Ahmed and Mr. Mohamed would not recognize the vehicle, then they could only know that Mr. Abdulle was in the black Audi if one of them actually recognized him. But the distance between where they were standing and where Ansah parked is well over a hundred feet. While not impossible, perhaps, in my view it is extremely unlikely that they would have recognized a passenger seated in a car from that distance. Against that backdrop, for Mr. Abdulle’s account to be true, it would mean that Ahmed and Mohamed knew of the pending drug deal, and fully intended to intercept and rob Mr. Abdulle at some point that afternoon, but only happened to encounter Mr. Abdulle at the precise moment he arrived at Albion by sheer coincidence. The odds against that are nothing short of astronomical.
[13] At 15:01:13, according to the time displayed by the recording, Kasim Mohamed and the deceased are seen on Camera 15, walking out of the camera’s field of view in the direction of the shooting. At 15:01:43, exactly 30 seconds later, Camera 15 captures Kasim Mohamed running back in the direction of the maintenance building. He is looking over his shoulder, back in the direction of the location at which the shooting had just occurred.
[14] On the consent of all parties, Det. Scott Ferguson of the Toronto Police Service was qualified, as an expert on the subject of the behavioural characteristics of armed persons. When I watch the recording, Mr. Abdulle does not exhibit, to my observation at least, any of the behavioural characteristics that Det. Ferguson described in his evidence.
[15] Abdi Yusufi is an architect by profession, but now works as a draughtsman for the Toronto Police Service. Among other duties, he spends much of his time constructing scale diagrams of crime scenes. Mr. Yusufi testified that he measured the distance from the point at which Kasim Mohamed and the deceased are last seen as they walk off camera to the location of where the deceased’s body was found after the shooting and found it to be 112 feet. By measuring the time it took the two men to walk between certain fixed objects while in view of the camera, namely, the expansion joints in the concrete sidewalk, Mr. Yusufi was able to estimate the speed at which they were walking. Using other known distances, Mr. Yusufi was also able to estimate the speed at which Mohamed was running when he came back into view.
[16] I do not propose to explain Mr. Yusufi’s calculus in these reasons. Suffice it to say his speeds were only estimates and, as counsel for Mr. Abdulle attempted to demonstrate in cross-examination, the times he postulated for the deceased to reach the point where he was shot and for Kasim Mohamed to get as far in the direction of the shooting as he got, and then run back, will vary as a function of a number of variables. That said, notwithstanding some degree of incertitude, I find two facts that refute Mr. Abdulle’s account.
[17] First, even allowing for the aforementioned incertitude, when one subtracts the time it took Mohamed to walk as far as he got, which Yusufi estimated to be something on the order of 85 feet, and the time it took him to run back into Camera 15’s field of view, there was, at most, only a couple of seconds during which anything of the sort Mr. Abdulle described could have taken place.
[18] Second, I find as a fact that, just as he said, Kasim Mohamed was some distance, perhaps 25 to 30 feet, behind the deceased when the shooting took place and not in immediate proximity to the deceased as Mr. Abdulle testified. He could not have been right where Mr. Abdulle claimed he was because I find as a fact that, had he been there, he could not have run back into Camera 15’s field of view by the time he did.
[19] A further aspect of Mr. Abdulle’s account that, while not impossible, is highly unlikely in my view is his claim that he was not actually aiming at either man. The single bullet that killed the deceased hit him in the throat. The possibility that Abdulle, in what he contends was effectively a state of panic, unintentionally shot, not the man who he says was trying to shoot him, but that man’s companion, and not only hit him, but hit him in a vital part of his body is so remote as to approach the vanishing point.
[20] The jury was charged on, but obviously rejected, the defence of self-defence. Clearly, they not only disbelieved Mr. Abdulle, but were satisfied beyond a reasonable doubt his account was untrue. Having carefully assessed the evidence, I agree entirely with that conclusion.
[21] Ansah, Kasim Mohammed and Muktar Mohamed all spoke of hearing multiple gunshots.
[22] Mr. Abdulle acknowledged in his testimony that he was armed with a .357 calibre revolver and fired it twice. Mr. Benjamin Sampson, the firearms examiner, said that .357 ammunition is generally chambered in revolvers. Although I believe very little of Mr. Abdulle’s evidence, inasmuch as it amounts to an admission against interest, I find as a fact that he was armed and that he fired at least two shots from a .357 handgun.
[23] The only shell casing recovered from the scene was from an expended .40 calibre round. Mr. Sampson said that .40 calibre ammunition is generally chambered in semi-automatic pistols, which eject a spent cartridge casing each time a round is fired. Based on Mr. Sampson’s evidence, I find as a fact that the shell casing was ejected when a round was fired from a semi-automatic.
[24] It was suggested to Kasim Mohammed, by both Ms. Bergenstein and Mr. Ross in their respective cross-examinations, that he had possessed and fired the .40 calibre handgun. He firmly rejected these suggestions. To the contrary, Mohamed said that the shooting took him completely by surprise and he ran out of fear. Mohammed’s evidence is buttressed by the fact that, as noted above, he is seen on CCTV, both immediately before and immediately after the shooting. As also noted, he does not exhibit any of the characteristics of an armed person and, when he reappears, he is running and looking back over his shoulder. His behaviour on the CCTV is not, to my mind, what one would expect of him had he just brazenly initiated a gunfight, as Mr. Abdulle contends.
[25] Kasim Mohammed had shortcomings as a witness, not least among which was his apparent disdain toward these proceedings and his responsibilities in that behalf. That said, based on the aforementioned evidence, I accept Mohammed’s evidence, and find as a fact, that he was not armed and neither initiated nor participated in a confrontation with Mr. Abdulle.
[26] Given, then, the scant seconds between the time Mohamed left the field of view of Camera 15 and the time he reappeared, I conclude that there was not enough time for anyone to have picked up spent shell casings from the .40 calibre handgun. In addition, it makes no sense that someone, having picked up other shell casings, would leave the one that was recovered. Therefore, I find as fact that the person who possessed the .40 calibre handgun fired it only once, expending the single shell casing that was recovered.
[27] Being satisfied that multiple shots were fired, but having rejected the proposition that Mohammed discharged a firearm, I find as a fact that Mr. Abdulle possessed and fired a .357 revolver and Mr. Monney possessed and fired a .40 calibre pistol. In her submissions on the sentencing hearing, Ms. Bergenstein fairly conceded on behalf of her client that this inference flowed naturally and reasonably from the jury’s verdict.
POSITION OF THE PARTIES
[28] A sentence of life imprisonment is mandated by s. 235 (1) of the Criminal Code. Subparagraph 745 (c) of the Code provides that an offender convicted of second degree murder shall be ineligible for parole for a minimum of 10 years and a maximum of 25 years. Thus, the only discretion the court has lies in the determination of the number of years each offender must serve before being eligible for parole.
[29] For its part, the Crown does not suggest a discreet range of parole ineligibility for either offender. Instead, Mr. Zambonini invites the court to conclude that the murder was akin to a drive-by shooting and was, in effect, “an execution-style” killing. Further, he asserts that the murder was committed in association with the Tandridge Cripz, a street gang that each offender has admitted is a criminal organization. Should the Court agree with either or both of these submissions, he asserts, the period of parole ineligibility ought to be close to the maximum 25 years. On the other hand, he acknowledges that, if the court is not inclined to characterize the murder in one or both of these ways, the period of ineligibility ought to be considerably less.
[30] Counsel for the offenders vigorously contest the Crown’s characterization of the murder. Each contends that the inferences the Crown asks the court to draw (that the murder was planned and that it was committed in association with a criminal organization) are not readily supportable on the evidence and, more importantly, are foreclosed to the court by virtue of the jury’s verdicts. They assert that parole ineligibility for their respective clients should be set somewhere between 12 to 15 years.
DISCUSSION
General Principles of Fact Finding on Sentence
[31] Respecting the facts to be considered on sentence, both the onus and quantum of proof are provided by the Criminal Code. The party alleging a fact bears the burden of proving it (s. 724(3)(b)) on a balance of probabilities (s. 724(3)(d)), except where it is said to be an aggravating factor, in which case the prosecutor must prove the fact beyond a reasonable doubt: s. 724(3)(e).
[32] In passing sentence, a court is “bound by the express and implied factual implications of the jury's verdict”: R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, at para. 15; Criminal Code, ss. 724(2)(a). That said, for a sentencing court to be bound in this way, the fact must be “essential to the jury’s verdict”: s. 724(2) (a). Beyond that, the court “may find any other relevant fact that was disclosed by the evidence at the trial...”: ibid.
[33] Where there is dispute respecting a fact relevant to the determination of a fit sentence, the court is obliged to “request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial”: s. 724(3)(a). Here, I am satisfied that I have sufficient evidence. In any event, there is, essentially, no more evidence to be had.
[34] It is well settled that a sentencing court is not obliged to give an offender the benefit of the doubt by finding the facts most favourable to him. On this point, see R. v. Nelson, 2014 ONCA 853, where, speaking for the court, at para. 56, Tulloch J.A. stated:
Under s. 724(2)(a)-(b) of the Criminal Code, a sentencing judge must accept as proven all facts that are essential to the jury's guilty verdict, and may find other relevant facts disclosed by evidence at trial. A sentencing judge is not permitted to make findings of fact that are "consistent only with a verdict rejected by the jury": R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. The appellant relies on R. v. Cooney (1995), 1995 CanLII 707 (ON CA), 80 O.A.C. 89 (C.A.), to argue that where the factual basis for a jury verdict is uncertain, the sentencing judge must assume that the jury took the most lenient path to conviction. However, this view is inconsistent with the Supreme Court's decision in Ferguson and was expressly rejected in R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59.
[35] I recognize, of course, that the court’s fact-finding function must be exercised with restraint. As McLachlin C.J. stated, in Ferguson, at para. 18, “[i]t follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.”
Nature of the s. 745.4 Exercise
[36] When imposing sentence on a conviction for second degree murder, the court has a discretion to increase parole ineligibility from the statutory minimum if, according to the criteria set out in s. 745.4 of the Criminal Code, the court is of the view that “the offender should wait a longer period before having his suitability to be released into the general public assessed”: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 27.
[37] By enacting s. 745.4, “Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability… The mere fact that the median period gravitates towards the 10 year minimum does not, ipso facto, mean that any other period of time is ‘unusual’”: Shropshire, at para. 29.
[38] As A. O’Marra J. stated in R. v. D.S., 2010 ONSC, aff’d 2017 ONCA 38, at para. 4, “[i]t is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances and the power to extend parole ineligibility need not be sparingly used.”
Proper Evidentiary Scope
[39] Section 745.4 mandates that the court must consider the character of the offender, the nature of the offence, and the circumstances surrounding its commission, and the recommendation, if any, of the jury respecting parole ineligibility.
[40] That said there was considerable dispute on the sentencing hearing in this case as to the scope of the evidence upon which the court could properly rely in this behalf. For its part, the Crown asserted that the court can properly, and, indeed, ought to, consider all the evidence heard on the various voir dires held in this case, even where that evidence was not later heard by the jury. Defence counsel both vigorously opposed this submission, arguing that, by inviting the court to rely on evidence supporting the conclusion that the murder was planned and that it was committed in association with a criminal organization, the Crown was attempting to do an end run, as it were, around the jury’s verdicts.
[41] Beginning with a procedural issue, counsel were not agreed as to what procedural steps were necessary, if any, before the court could properly consider evidence called on other phases of the trial. Crown counsel contended that nothing further was required to be done, whereas counsel for Mr. Abdulle insisted that, before the court could properly consider evidence heard at various other stages, it must first make a formal ruling admitting that evidence on the sentencing phase of the trial. While I do not entirely agree that it was necessary, out of an abundance of caution I ordered that all evidence heard in these proceedings, irrespective of when or in what context it was originally received, would be admissible on the sentence hearing.
[42] Turning from the procedure required to make such other evidence admissible, to the propriety of considering it in passing sentence, a helpful précis is found in R. v. Edwards, (2001), 2001 CanLII 24105 (ON CA), 54 O.R. (3d) 737, at paras. 39 ff. where Rosenberg J.A., speaking for the court, stated:
There are statutory provisions that do permit the use of evidence about the offender, even though that evidence also discloses the commission of other crimes. First, s. 718(c) and (d) of the Criminal Code set out as two of the objectives of sentencing:
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
Neither of these objectives can be fairly achieved through sentencing without knowing something, and perhaps quite a bit, about the background and character of the offender…
The procedural provisions of the Criminal Code sentencing regime support the admission and use of evidence about the offender's background and character. For example, under s. 721, unless otherwise ordered, a pre-sentence report "must, wherever possible" contain information of the offender's "character, behaviour, attitude and willingness to make amends", and the history of previous findings of guilt. Section 723 provides that the court "shall" hear any relevant evidence presented by the prosecutor or the offender. It seems to me that this must include evidence relevant to the offender's character or behaviour and that the admission of such evidence cannot be dependent upon its being placed in a pre-sentence report. Under s. 724, where there is a dispute about any aggravating fact that is relevant to the determination of a sentence, the prosecutor must establish the fact by proof beyond a reasonable doubt.
Section 743.6, which permits a court to set a minimum period of parole ineligibility, also supports admission of evidence about the offender's character. Under that section, the court is directed to have regard to the "character and circumstances of the offender"…
There is a very important limit on the use of evidence of the offender's character or background. In addition to the limitation implicit in s. 725 that prohibits punishing an offender for untried offences, s. 718.1 sets out the fundamental principle of proportionality in sentencing:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[43] At para. 46 of Edwards, Rosenberg J.A. went on to discuss the need for fairness in the court’s consideration of evidence of other extraneous misconduct or bad character:
Consistent with the statutory provisions that I have set out above dealing with the pre-sentence report and admission of evidence, the courts have recognized that a sentencing judge has a broad discretion concerning the admission of evidence at a sentence hearing. As Dickson J. said in R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477 at p. 414 S.C.R., pp. 513-14 C.C.C.:
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.
[44] Two years later, in R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.), at para. 35, relying on R. v. Roud and Roud (1981), 1981 CanLII 3231 (ON CA), 58 C.C.C. (2d) 226 (Ont. C.A.) (leave refused (1981), 58 C.C.C. (2d) 226n) at p. 242), Rosenberg J.A. held that, in determining a fit sentence a trial judge has a duty to the public and to the offender and, as he stated in Edwards, further held that “[t]he judge cannot discharge either without fairly complete information as to the offender, his background and his character. This necessarily includes whatever information is available about the background and other factors that have led to the offender being before the courts.” [Emphasis added.]
[45] The holding in Edwards was recently cited with approval in R. v. Roopchand, 2016 MBCA 105, in which, at para. 7, Chartier C.J. held:
With respect to what use can be made of evidence of untried offences at a sentencing hearing, the case law is clear: while such evidence cannot be used for the purpose of punishing the accused, it is admissible when its purpose is limited to shedding light upon some aspect of the accused's character and background which is relevant to the objectives of sentencing being considered by the judge (see R v Edwards (S) (2001), 2001 CanLII 24105 (ON CA), 147 OAC 363 at para 63…
[46] In the final analysis, then, as I indicated on January 12, 2016, I am of the view that all of the proffered evidence is admissible; the question is: what weight, if any, should attach to various aspects of that material?
Systemic Discrimination
[47] Before dealing with the individual characters of the two accused, I wish to address an issue that was raised in relation to both offenders, namely, systemic discrimination that is said to have had an impact on the formation of their respective characters.
[48] Counsel for Mr. Abdulle submitted a number of cases on point as well as a compendium of what he referred to as “Secondary Sources” all of which contend, to one degree or another, that the justice system discriminates against black males.
[49] For its part, the Crown contends that, in this case, the issue of systemic discrimination is, for all practical purposes, academic. Mr. Zambonini gave two reasons for this assertion.
[50] First, he says, there is no convincing evidence that either of these accused has suffered such discrimination to any meaningful extent.
[51] Second, he points out that in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.J. No. 19, at para 79, the Supreme Court held:
Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.
[52] Likewise in Borde, although Rosenberg J.A. recognized that, while systemic discrimination does not affect only aboriginal offenders and can be considered in sentencing offenders belonging to other visible minorities, certain offences are, by their nature, so serious that the differential that a court might otherwise apply in sentencing an offender, so as to have the sentence reflect such societal disadvantage, will be eclipsed. To the extent that, per Borde, offenders other than aboriginals might be entitled to this sort of consideration, the Crown contends, the aforementioned caveat from Gladue, concerning the seriousness of the offence, also applies.
[53] Later, in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, (Ont. C.A.) at para. 133, the court held:
The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.
[54] Mr. Rudnicki contends that this earlier approach has now been overtaken by R. v. Ipeelee, 2012 SCC 13, in which, according to Mr. Rudnicki, the Supreme Court made clear that it was wrongheaded. While I accept that the court in Ipeelee observed that some lower courts had been misinterpreting Gladue in certain respects, I do not agree that Ipeelee has displaced the proposition that, in terms of determining a fit disposition, there will come a point at which any differential based on race and attendant socio-economic disadvantage will be overtaken by the seriousness of the offence. In saying that, I rely on R. v. Pelletier, 2012 ONCA 566, [2012] O.J. No. 4061 at para. 143, where, speaking for the court, Watt J.A. held:
Finally, for some offenders, both Aboriginal and non-Aboriginal, separation, denunciation and deterrence are fundamentally relevant. It does not follow that Aboriginal offenders must always be sentenced in a way that accords greatest weight to the principles of restorative justice and less weight to objectives like deterrence, denunciation and separation: Gladue, at para. 78. Although not a general principle, in practical terms, the more violent and serious an offender's crime, the more likely that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other, if not the same: Gladue, at para. 79; Wells, at para. 42; R. v. Ipeelee, 2012 SCC 13, (2012), 280 C.C.C. (3d) 265, at para. 85.
[55] See also R. v. Weese, 2016 ONCA 449, where the parole ineligibility of 22 years imposed upon an aboriginal convicted of second degree murder was upheld. Watt J.A., having earlier made specific reference to Ipeelee, went on, at para. 28, to quote para. 79 of Gladue.
[56] From these two cases, both postdating Ipeelee, it is plain to me that it is still “a practical reality” that, in fashioning a fit sentence, the “different concepts of sentencing” applicable to aboriginal offenders (or, by extension, any offender who has suffered systemic discrimination) will eventually be eclipsed by the seriousness of the offence.
[57] In Borde, Rosenberg J.A., noted at para. 30, “in an appropriate case a sentencing judge might find assistance from the approach described by the court in Gladue and Wells, even though that approach is grounded in the special reference to aboriginal offenders in s. 718.2. However, this is a matter that should be addressed at trial where the evidence can be tested and its relevance to the particular offender explored.” I mention this passage because counsel for Mr. Abdulle proffered two letters authored by Mr. Abdulle’s sister, in one of which she gives what purports to be an account of specific instances in which the school system disadvantaged her brother and, on a broader scope, how the school system is unfair to students of colour generally.
[58] As I noted in the course of the sentencing submissions on January 12, 2017, if Mr. Abdulle would have this court rely on what he contends were specific instances of discrimination, they ought to have been proffered by way of actual evidence, not in a letter that is incapable of being meaningfully challenged. I appreciate that, in sentencing proceedings, it is commonplace for friends, relatives, employers and others to submit letters attesting to the good character of offenders. Generally speaking, this is not problematic and little would be gained by insisting on a more rigorous evidentiary regimen. But, where an offender wishes to establish particular facts that he purports are highly relevant to the determination of a fit sentence, a letter is not adequate, in my opinion. In this case, if Mr. Abdulle wanted this court to find as a fact that he has been the victim of specific instances of systemic discrimination it would have been simple enough to have his sister provide an affidavit, which could have been cross-examined upon. But, since all I have is her letter, I am not prepared to find that the offender has been the victim of systemic discrimination.
[59] Further, I find the sister’s indictment of the school system to be more than a little ironic, since she holds a B.Sc. with Honours in Biology from York University and is currently applying to do graduate work in the field of public health and her other brother, Mohamed, holds a bachelor’s degree in Life Sciences from York University and is currently pursuing a second bachelor’s degree in computer science at Ryerson University.
[60] As for Mr. Monney, Ms. Bergenstein provided certain secondary sources on this topic, but adduced no evidence to show that her client has personally endured any hardship on this front.
[61] In summary on this issue, even were I persuaded that one or both of the offenders had suffered some measure of systemic discrimination, which I am not, I am of the view that the offence is so serious that the practical reality would have been that it would have had virtually no impact on the determination of an appropriate period of parole ineligibility.
Character of Michael Mr. Monney
[62] Turning to the respective characters of the offenders, I begin with Mr. Monney. He was born in Canada and is one of four siblings. In 2003, his mother took him to Ghana where he lived with his grandmother and an aunt. He returned to Canada in 2008 and lived with his parents and siblings until August 2013. Once back in Canada, he went to high school and completed 21.5 of the 30 credits required to graduate. I am advised that he has since completed several more courses. In summary, his upbringing was fairly stable.
[63] In terms of mitigating factors, Mr. Monney has support both from his family and from various members of his community, as demonstrated by the letters submitted by various relatives and a number of friends, attesting to his good character. In relation to these letters, while I am prepared to accord them some weight, I must observe that “it is a commonplace in sentencing matters that the people who speak on behalf of an accused know only one side of him”: R. v. Sansalone, [2011] O.J. No. 5774 (S.C.J.); aff’d 2013 ONCA 226.
[64] In addition, notwithstanding the institutional records submitted by the Crown, to which I will come shortly, it appears that Mr. Monney has made some reasonably good use of his time while incarcerated. Apparently, he has completed some additional credits toward his high school equivalence. He has discovered an interest in fashion design and hopes to pursue that as a vocation when he is eventually released. I am also told that he has completed a draft of a novel and hopes to have it published.
[65] Asked if he wished to say anything prior to sentence being imposed, Mr. Monney said that he was sorry and apologized to both the family of the victim and his own family. In the same statement, however, he indicated that he did not intend to kill or harm Mr. Ahmed in any way.
[66] Beyond these factors, there is little else to be said for Mr. Monney by way of mitigation.
[67] On the negative side of the ledger, Mr. Monney admits he is a member of the Tandridge Cripz, which, as noted above, he further admits is a criminal organization.
[68] Although it appears Mr. Monney may have held the odd job here and there, there is no evidence before me to show that, in the years since he ceased to be a full time student, he has meaningfully pursued lawful employment. On the contrary, one of the few things I believe of Mr. Abdulle’s testimony (and find as a fact) is that Mr. Monney’s principal occupation is drug dealing.
[69] Mr. Monney has a criminal record.
[70] In May of 2011, he was convicted of failing to comply with a recognizance and received one day’s custody in addition to nine days of pre-sentence custody.
[71] In July of that year, he was found guilty of obstructing a peace officer and failing to comply with a recognizance. Sentence was suspended and he was placed on probation for 12 months.
[72] In August 2011, he was again found guilty of failing to comply with a recognizance and, again, sentence was suspended and he was placed on probation for one year.
[73] Several days later, he was found guilty of possession of a Schedule I controlled substance and another count of failing to comply with a recognizance. He was given a four month conditional sentence on each count, to be served concurrently.
[74] In August of 2012, he was found guilty, once again, of failing to comply with a recognizance. Having spent nine days in custody, he was sentenced to a further 18 days’ custody.
[75] In March of 2014, he was found guilty of possession of a weapon. In addition to 60 days’ pre-trial custody, he was sentenced to a further one day in custody.
[76] Ten days later, he was found guilty of theft under $5,000 and sentenced to one day in custody, in addition to 14 days’ pre-trial custody.
[77] In July of 2014, he was found guilty of assault and possession of marijuana. He was sentenced to one further day, in addition to 30 days’ pre-trial custody.
[78] In April 2016, after 28 ½ months’ of pre-trial custody were deducted, he was sentenced to five years’ imprisonment for the offence of aggravated assault, three years and seven months’ for robbery, to be served concurrently, and one year consecutive for the offence of using an imitation firearm in the commission of an indictable offence.
[79] I note, parenthetically, that with respect to Mr. Monney’s record (and Mr. Abdulle’s, to which I will shortly turn), while the court must not over-emphasize its importance, I am entitled to consider it, in the case of each of them, as a “revelation of the character of the accused as a man who flaunted the law and the opportunities provided by probation directives”: R. v Frenette, 1999 ABCA 225, at para. 7.
[80] Moving from Mr. Monney’s criminal record to his record of behaviour in the institution since his detention on this charge, the Crown put before the court a compilation of records concerning alleged institutional misconduct in seven separate incidents. In one, the offender refused to obey an order; in another, he insulted a guard. Several relatively minor assaults are also documented, but I am not convinced that Mr. Monney was always the instigator of the violence. There is a disturbing incident involving the authorities having confiscated a makeshift knife from his cell, but the evidence that the knife was his is weak. Understanding that there is bound to be a degree of tension among inmates in any detention centre, and that such tension will doubtless erupt into violence from time to time, I am not persuaded that anything in the institutional records ought to influence the length of parole ineligibility.
[81] In summary, then, based on the foregoing I am of the view, despite what his loved ones and close associates might think of Mr. Monney, as reflected in the letters filed, he is a man of deeply flawed character.
Character of Mr. Abdulle
[82] As for Mr Abdulle, he was born in Somalia and came to Canada, at age six, with his mother and siblings. I am given to understand that he has completed Grade 11 while in detention awaiting his trial on this charge.
[83] In terms of mitigating factors, Mr. Abdulle has support, both from his family and the larger community. I have considered the various letters filed on his behalf by his siblings, family friends and acquaintances. They all speak of him as a kind, unselfish, helpful individual.
[84] Asked, at the conclusion of the sentencing hearing, if he had anything to say, Mr. Abdulle indicated that he was sorry and apologized to Mr. Ahmed’s family.
[85] Beyond this, there is little else that can be said for Mr. Abdulle by way of mitigation.
[86] Turning to the negative side of the ledger, Mr. Abdulle has virtually no history of employment. The only lawful employment of which I was apprised was that he worked at Old Navy for some period of time. I was not told when or for how long.
[87] As was the case with his evidence concerning Mr. Monney, one of the few things I believe of Abdulle’s testimony is that his principal occupation is dealing drugs. He said that he trafficked mainly in crack cocaine, but also admitted to having trafficked in heroin.
[88] Like Mr. Monney, Mr. Abdulle admits that he is a member of the Tandridge Cripz and that it is a criminal organization.
[89] Although not as extensive as Mr. Monney’s, Mr. Abdulle also has prior criminal convictions.
[90] In May 2013, he was found guilty in Youth Court of possession of a firearm with ammunition. He was sentenced to 34 days’ custody and 17 days’ community supervision, in addition to pre-trial custody (equated to 489 days).
[91] In February 2015, he was found guilty as an adult of uttering threats and assault police. He was discharged conditionally and placed on probation for six months.
[92] As for Mr. Abdulle’s behaviour in the institution since his detention on this charge, the Crown put before the court a compilation of records chronicling 17 incidents of institutional misconduct on the part of Mr. Abdulle. Like the records concerning Mr. Monney, some of Mr. Abdulle’s incidents were minor and of no consequence in deciding parole ineligibility. In others, however, the offender’s behaviour is very concerning.
[93] In one incident, for example, Mr. Abdulle and two confederates, attacked another inmate. The man had to be taken to hospital and received numerous stitches to his face. Although Mr. Abdulle denied having been complicit in the attack, the report reveals that the assault was captured on CCTV and he was identified as one of the assailants.
[94] There are also a number of incidents in which Mr. Abdulle threatened violence against the custodial staff. One incident is particularly alarming. On October 12, 2014, Mr. Abdulle made insulting remarks to one of the custodial officers, calling her a “bitch” and a “whore”. While the insults are grossly distasteful, they are not what concerns me for present purposes; rather, what is very disturbing is that, at the same time, he threatened the officer that “the next time you work this unit you’re gonna get slashed.”
[95] In summary, then, like Mr. Monney, Mr. Abdulle is a man of profoundly flawed character.
Nature of the Offence and Circumstances Surrounding Its Commission
[96] Turning to the nature of the offence and the circumstances surrounding its commission, to begin, I make the following findings of fact:
- within less than two minutes, the offenders entered the Albion complex, shot Mr. Ahmed, and left at high speed in Ansah’s car;
- the offenders were only out of Ansah’s car for approximately 30 seconds, such that there was no time for any disagreement to develop that would have led to this shooting;
- both men fired shots; and
- there was no conversation in Ansah’s car afterward about what had just happened, as there doubtless would have been had this event happened unexpectedly and on the sudden.
Based on those findings of fact, I am satisfied beyond a reasonable doubt that, although they may not have deliberated upon their plan, the two offenders went to Albion with a definite plan to shoot someone. There is, to my mind, simply no other reasonable explanation of the facts as I have found them. In other words, I am satisfied beyond a reasonable doubt that the facts are consistent with the offenders having had such a plan and inconsistent with any other reasonable explanation: R. v. Villaroman, 2016 SCC 33, at para. 30.
[97] In an effort to persuade the jury that the evidence did not support the conclusion advanced by the Crown, namely, that the shooting was planned, counsel for the offenders, in their respective closing addresses, suggested that the motive had not been convincingly established. In that vein, each made much of the fact that this incident occurred in broad daylight and that their clients went to Albion in company of someone they did not know (and, thus, could not depend on not to report the incident to the police), went in a vehicle that they must have known could be readily identified, and got out of the car when they could have shot from the safety of the vehicle. With the same objective in mind, counsel made essentially the same submissions to this court on the sentence hearing.
[98] Examined in the cold light of pure reason by a law abiding person not steeped in the milieu in which these offenders were so deeply immersed, those arguments might be persuasive. But, examined in context, i.e.: against the backdrop of the senseless, ongoing violence between young men from the two neighborhoods (which I find as a fact led up to the tragedy of August 12) and bearing in mind that these offenders are members of a street gang, these considerations do not cause me to doubt that these men went to Albion that day with plan in mind to shoot someone.
[99] Defence counsel argue strenuously that the conclusion that the offenders went to Albion pursuant to a plan to kill someone is foreclosed by the jury having acquitted them of first degree murder. I disagree.
[100] In R. v. Berry, 2017 ONCA 17, the appellant used a third party to lure the deceased, with whom he was having a dispute, outside of his apartment building. When the deceased appeared outside, the appellant, from a position of concealment, shot him six times, hitting him four times in the head. In upholding the trial judge’s characterization of the nature of the murder, at para. 91, the court stated:
While the trial judge did reference the nature of the offence twice in his consideration of the aggravating factors, he did so in two different contexts. The first related to what he saw as the "planning" elements of the shooting; the second, to the "execution" nature of the shooting. Both considerations were open to him. Having found that there were elements of planning in the way in which the appellant armed himself, elicited the aid of Jovanovski, and then concealed himself at the side of the door preparatory to carrying out the attack, the trial judge was not precluded from considering the number and location of the gun-shot wounds on the deceased's body and concluding that the shooting could also be characterized as a "brutal execution". Both these features of the crime were compelling aggravating factors as were others, including the use of an illegal firearm when the accused was subject to a firearms prohibition order. The trial judge was entitled to view the offence as a near first degree murder in spite of the jury's acquittal on the charge of first degree murder.
[101] In this case, since to amount to first degree murder the killing had to have been both planned and deliberate, the only finding that is foreclosed is that the offenders went to Albion with a plan to kill upon which they had deliberated prior to the killing. That said, while I am satisfied beyond a reasonable doubt that they went to Albion with a plan to shoot someone, I stop short of concluding that the plan was to commit murder, because I am not able to say precisely when it was that, as distinct from simply intending to shoot someone, they actually formed the requisite intent for murder.
[102] Turning to what motivated the offenders to concoct such a plan, there is no evidence that the accused had any pre-existing animus toward the deceased, but that was not the motive advanced by the prosecution. Rather, as earlier noted, the motive the Crown attributed to the offenders flowed from an animus that existed between young men from each of the two neighborhoods.
[103] The jury was charged that, irrespective of whether the murder was planned and deliberate, they could find the accused guilty of first degree murder if they were satisfied beyond a reasonable doubt that they committed murder in association with, or for the benefit of, a criminal organization. But, since the deceased was only shot once, the jury members were also instructed, in keeping with the holding in R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, that, in considering the guilt or innocence of each accused individually, as they were obliged at law to do, they could not find the accused they were then considering guilty of first degree murder by this route unless they were also satisfied beyond a reasonable doubt that he actually fired the fatal shot. Once again, then, contrary to the defence position, the jury’s verdicts do not preclude the court from finding that the offenders were acting with this motive. The evidence reveals that multiple shots were fired, that each offender fired at least one shot, but that the victim was only struck by one bullet. For that reason, I am unable to conclude which of the offenders fired the fatal shot. That said, the proposition that the offenders acted with this motive is not consistent only with a conclusion rejected by the jury (Ferguson, at paras. 17). Accordingly, it is a finding available to the court.
[104] In his testimony, Mr. Abdulle said that the sinister characteristics of the typical street gang described by Sgt. Nasser, the Crown’s gang expert, do not accurately reflect the nature of the Tandridge Cripz. Rather, according to his evidence, the gang does not have a core territory or “turf” as such, does not object to other people coming into the area it occupies to sell drugs, in direct competition with its members, and does not espouse any of the violent retaliatory credo of most street gangs. Thus, he contended, the gang had no enemies and its members did not use violence to protect its turf. I do not accept Mr. Abdulle’s benign characterization of the nature of the Tandridge Cripz. Rather, like much of his evidence over the course of four days of testimony, I conclude that it was little more than a convenient fiction that he thought would serve his purpose at the time, namely, to refute the Crown’s characterization of the motive for this murder, in the hope of convincing the jury, or at least raising a reasonable doubt, that he had acted in self-defence.
[105] On the contrary, I accept the evidence of Sgt. Nasser as to the nature of street gangs generally. They dominate an area for the purpose, inter alia, of exploiting ongoing criminal activities, such as drug dealing, firearms trafficking and prostitution. They maintain their dominion over the area, and the lucrative criminal opportunities it offers, by intimidation and the omnipresent threat of violence and they react violently to perceived challenges from rival gang members or others respecting whom they have an animus. Having said that, I find as a fact based on all the evidence before me that the Tandridge Cripz gang is no different in these regards than the typical gang Nasser described.
[106] In summary on this point, I am satisfied beyond a reasonable doubt that the murder of Mr. Ahmed was motivated by rivalry between the Tandridge Cripz and the young men, whether they considered themselves a gang or not, who lived at, or hung around, the Albion complex.
[107] It is true that the Yusef Ahmed had had his difficulties with the criminal law. That said, having rejected Mr. Abdulle’s account of how this senseless killing occurred, there is no evidence that I accept to even suggest, much less demonstrate convincingly, that he was anything other than an innocent victim on this tragic occasion. Had it not been Mr. Ahmed, I have no doubt that these offenders would have shot someone else in his stead.
Jury Recommendations
[108] As for the jury’s recommendations, respecting Mr. Monney, eight of the 11 members had no recommendation; three recommended 20 years. Respecting Mr. Abdulle, 10 members had no recommendation; one recommended the minimum 10 years. Given that only a small fraction of the jury made any recommendation for either offender and given the disparity between their respective recommendations for each, which, with the greatest respect, I find difficult to reconcile, I am not inclined to place any weight on the recommendations.
Similar Cases
[109] The offenders are entitled to be sentenced in keeping with dispositions imposed on similarly situated offenders for offences committed in similar circumstances: Criminal Code, s. 718.2(b). Parole ineligibility is an aspect of sentence, such that I am bound to consider other similar cases: R. v. Cerra, 2004, BCCA 2453, at para. 20. In that vein, I have considered the authorities provided by the parties, as well as some others. I propose to mention only a few.
[110] In R. v. Stewart, 2008 CanLII 70846 (ON SC), [2008] O.J. No. 5449 (S.C.J.), aff’d 2014 ONCA 70, the accused was convicted of second degree murder. At para. 39, McCoombs J. gave the following recitation of the incident giving rise to the conviction:
This murder was committed by a gangster with a criminal record that includes two weapons convictions. He brought a loaded handgun to a Caribana celebration in the centre of the city. He fired two shots in a crowded public square in the presence of hundreds of people and dozens of police officers. He killed an unarmed man and devastated the lives of his victim's family. His first shot missed his intended target and lodged in a sign. It was only good fortune that no-one else died that night.
There are disturbing similarities between that description and the facts before this court, to wit: each offender before this court admits that he is a gangster, each has a criminal record, including a prior weapon conviction, each was carrying a loaded handgun, three shots were fired in a public place, and one of those shots killed an unarmed man and has devastated the lives of his family. While it is only fair to observe that the situation in Stewart, involved vastly more people, with a correspondingly greater risk of harm to innocent bystanders, nonetheless, in this case, in my view, it was also only fortuitous that no one else was injured or killed.
[111] In the course of imposing a parole ineligibility period of 16 years, McCoombs J. said the following:
Guns have become a scourge in our community. People have become fearful that gunfire may erupt at any time, even in crowded, popular areas frequented by law-abiding citizens. Society has the right to expect the courts to act firmly and decisively in the face of proven crimes like this one. This crime was particularly brazen, callous, and outrageous. The offender has a serious criminal record and a history of antisocial behaviour. Few if any mitigating factors are present.
Those remarks are entirely apropos this case.
[112] In R. v. Doucette, 2015 ONSC 583, the appellant was convicted of second degree murder. He had been involved in an altercation in a bar and got the worst of it. He went home, got a gun, returned, and waited outside. When the deceased came out of the bar, the appellant shot him three times. The appellant had a criminal record, including convictions for offences of violence. At the time of the murder, he was on bail and in breach of his curfew. The trial judge imposed parole ineligibility of 15 years. In dismissing the appeal, at paras. 61 and 68, Doherty J.A. opined:
The circumstances of this murder placed it squarely among those that demand a strong denunciatory sentence. The appellant, armed with a loaded handgun, opened fire on [the victim] on a public street.
The sentence imposed by the trial judge is not out of line with sentences imposed in similar cases involving youthful offenders convicted of second degree murder: see Danvers, supra; I cannot say that the sentence is manifestly excessive.
[113] In R. v. Grant, 2016 ONCA 639, the appellants were found guilty after trial of second degree murder. The trial judge imposed parole ineligibility periods of 18 years for Grant and 13 years for the co-accused, Vivian. On appeal, the court reduced those periods to 14 and 11 years, respectively, holding that the trial judge had failed to give adequate consideration to various mitigating factors on sentence.
[114] In R. v. D.S., 2017 ONCA 38, the court upheld a parole ineligibility period of 14 years imposed at trial for a murder committed by an offender who, in my view, was quite similarly situated to the offenders before this court. As for the propriety of the parole ineligibility, speaking for the court, Watt J.A. held:
[T]he enhanced period of parole ineligibility imposed here falls within, perhaps even slightly below, the range of parole ineligibility orders in cases such as this. A youth, armed with an illegal handgun, in breach of not one but two firearm prohibitions, ready to shoot it out on a public thoroughfare in the presence of innocent bystanders, in the presence of innocent bystanders, including two pre-schoolers, all to vindicate an inflated sense of self-worth. In a city plagued by gun violence.
On the one hand, although this murder occurred in a highly populated housing complex, there is no evidence of young children having been present. Nor, in fairness, was either offender the subject of a firearms prohibition at that time. On the other hand, given that the offenders went to Albion with a plan to shoot somebody, the circumstances of this murder are more morally blameworthy.
[115] In Berry, supra, the appellant was 20 at the time of the offence. The court acknowledged that the appellant was of “modest intelligence” and that he had had “a difficult youth and upbringing…”, but further noted that he had a serious record of “continuing violence both as a youth and as an adult, including convictions for robbery, a conviction for assault with a weapon and the imposition of a firearms prohibition. Those acts of violence were not deterred by his prior incarcerations.” In the result, the court held, at para. 92, that the 17 year period of ineligibility was “entirely fit.”
[116] In the case at bar, neither offender has been deterred by his “prior incarcerations”. Indeed, in Mr. Abdulle’s case, notwithstanding he had spent nearly a year in jail for a firearms offence, within days of his release he saw fit to arm himself with another illegal firearm so that he could ply his trade as a drug dealer.
SENTENCE
[117] On the one hand, circumstances of this offence are egregious. In addition, the plan to go to Albion to shoot someone, and the depraved motive underlying that plan, are highly aggravating factors. Taken together with the criminal antecedents of both offenders, a period of ineligibility well beyond the minimum is warranted.
[118] On the other hand, notwithstanding their profoundly antisocial lifestyle up to this point, and the gravity of the present crime, both of these offenders are youthful. That is a factor that I must take into account: Grant, at para.173; Frenette, at para. 12. Mr. Abdulle was 18 when he committed this offence; Mr. Monney was 21. While I am not optimistic concerning their prospects for rehabilitation, I am not convinced that rehabilitation is entirely beyond the pale.
[119] It must be borne in mind, as well, that the sentence I must impose here is imprisonment for life. The only matter concerning which I have discretion is, as I have earlier said, the period of parole ineligibility. In this case, I have decided that a fit period is 15 years. To state the self-evident, that is a very long time in the life of any young man. If, during that time, the individual offender does not exhibit, to the satisfaction of the parole board, that he has rehabilitated himself, then he will remain in prison, perhaps for the rest of his life. On the other hand, if either offender makes significant strides toward rehabilitating himself he should have the opportunity to gain his freedom while he still has some prospect of building a life for himself.
[120] You have been convicted of a cruel and senseless act. You have wantonly extinguished the life of a young man who, as near as I can determine, never did you any harm. Not only did you take Yusef Ahmed’s life, in so doing you inflicted a deep and abiding misery on his family and friends. As for yourselves, you have effectively squandered the best years of your own lives and brought untold shame and hurt upon your own families.
[121] I hereby sentence each of you to imprisonment for life and order that neither of you will be eligible for parole until you have served 15 years of that sentence.
ANCILLARY ORDERS
DNA Order
[122] Murder is a primary designated offence. Accordingly, pursuant to s. 487.051 of the Criminal Code, I hereby order the authorities to take from you such samples of one or more bodily substances as will suffice to permit your DNA profile to be developed for submission to the National DNA Data Bank.
Weapons Prohibition Order
[123] Further, pursuant to s. 109 of the Criminal Code, I must impose a weapons prohibition. Accordingly, I hereby order that each of you is prohibited from possessing any of the items or substances listed in that section for a period commencing today and lasting for the rest of your life.
Clark J.
Released: February 10, 2017
CITATION: R. v. Monney, 2016 ONSC 1007
COURT FILE NO.: CR-15-5000062
DATE: 20170210
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL MONNEY AND YASIN ABDULLE
Defendants
REASONS FOR SENTENCE
Clark J.
Released: February 10, 2017