Court File and Parties
COURT FILE NO.: 16-7871 DATE: 2018/06/05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BENHAM YAALI
Counsel: Fara Rupert and Matthew Geigen-Miller, for the Crown Neil Weinstein, for the Accused
HEARD: January 23, April 16 and 17, 2018
SENTENCING DECISION
RATUSHNY J.
[1] Mr. Yaali has pleaded guilty to manslaughter using a firearm, causing the death of Christina Voelzing on March 27, 2016 contrary to s. 236(a) of the Criminal Code.
[2] The particular issues on this sentencing, in addition to a determination of the length of sentence, are (1) the inferences that may logically and reasonably be drawn from the proven facts as to whether or not Mr. Yaali intended to shoot Ms. Voelzing; (2) the treatment of competing inferences as to Mr. Yaali’s state of mind in the sentencing process; and (3) the availability of enhanced pre-sentence custody credit beyond the rate of 1.5.
[3] The first two issues impact directly upon the assessment of the degree of Mr. Yaali’s moral culpability for Ms. Voelzing’s death. The Defence submits it is reasonable to infer that Mr. Yaali did not intend to shoot Ms. Voelzing and requests a sentence of 7 years’ incarceration less presentence custody credit. The Crown submits the opposite: that it is reasonable to infer that Mr. Yaali was looking for Ms. Voelzing and he found and shot her. The Crown requests a sentence of 15 years’ incarceration less presentence custody credit.
1. The Facts
[4] An agreed statement of facts was filed and the following is a summary of them.
[5] The accused was 23 years of age on the day of the shooting on Easter Sunday in 2016. The victim was 24. They had been in a romantic relationship when the victim was in high school.
[6] In 2012 the accused was arrested in Miami, Florida, and pleaded guilty to importing 1.238 kilograms of cocaine found in a hidden compartment of his suitcase. He was sentenced to 30 months’ imprisonment. His incarceration ended his relationship with the victim, although they stayed in touch and she had occasionally sent him canteen money while he was in prison. The victim began a romantic relationship with Hassan Khalid not long after the accused’s incarceration. On the day of the shooting, the accused was on supervised release under this sentence.
[7] On February 11, 2016, the victim texted the accused on Chantal Bourgon’s phone, her friend and roommate, saying that she loved him and so does Chantal and they miss him.
[8] A text from Chantal Bourgon to the accused in the early morning hours of Saturday, March 26, 2016, the day before the shooting, warned him that Khalid had just told the victim to “watch the news” because the accused had apparently called him a goof and Khalid was looking for the accused’s address and was “psycho and drunk”. The accused’s response to Chantal was that he was “tryna pass out; it’s 6 am” and “ignore the nonsense”.
[9] On that same day before the shooting, the accused and Khalid got into a heated dispute about the victim and exchanged threats and insults by telephone and text messages.
[10] The first round of texts occurred in the early morning hours after Chantal’s warning texts to the accused, and ended with Khalid texting the accused to take back his “goof” insult.
[11] The second round of texts occurred in the evening of March 26, when the accused picked up from the last text from Khalid, repeatedly calling him a “goof”. Khalid told him he would see him at a certain location. That meeting never occurred.
[12] On that Saturday, Khalid was staying over at the victim’s townhouse residence along with his friend, Nicholas Vandenbosch. The victim’s two roommates, sisters Ariane and Chantal Bourgon, were with her at the townhouse together with Chantal’s boyfriend, Amel Kebic, for a total of six people staying in the townhouse.
[13] Around 3:30 a.m. and 3:45 a.m. on Sunday morning, the accused and Khalid spoke on the phone. Ariane Bourgon overheard one of the calls and remembers Khalid telling the accused to meet him at “Richmond and Moodie”. Khalid cleaned and oiled his handgun before he and Vandenbosch left the townhouse. Khalid was armed with his Colt .45 semi-automatic handgun and Vandenbosch was armed with a knife. They were going to look for the accused. They returned a short time later, reporting that they had not found him.
[14] Around the same time, the accused called his friend Brandon Cain and asked Cain to drive him to a confrontation with Khalid and to accompany him while he confronted Khalid. The two had been drinking. Cain, in turn, called his friend, Trevor Smith, to accompany them as “back-up” during the confrontation. Cain picked up the accused and then Smith and drove them to the victim’s townhouse. While en route, the accused told Smith that he was “beefing” with a guy and showed Smith some of the insulting text messages he had exchanged with Khalid, including the “goof” insults. Smith told police that the accused had a couple of drinks in him and was probably feeling pretty good although not “completely sloshed” but you could see he was built up aggressively with the help of “liquid courage”.
[15] They arrived in the area of the victim’s townhouse but parked down the street and out of sight. The accused and Cain got out of the car. Smith stayed in the car but moved to the driver’s seat.
[16] The accused approached the front door of the townhouse while Cain lagged behind. The accused banged on the door for a minute or two, waking the occupants.
[17] Ariane Bourgon arrived first at the front door from her basement bedroom. Around the same time, Vandenbosch was running up the stairs to warn Khalid of the accused’s arrival.
[18] Ariane Bourgon opened the front door to find the accused pointing a handgun in her face. The accused said, “Where’s Christina”? At the same time, the victim was running down the stairs from her upstairs bedroom to the front door, with Khalid following some distance behind.
[19] The victim arrived at the front door, stepped into the doorway, and extended her arms toward the accused.
[20] The agreed statement of facts says that “More likely than not, Khalid had arrived on the upper living room level landing at this point, carrying his Colt .45 handgun, which was visible to the accused”.
[21] With the victim occupying the front doorway and Ariane Bourgon also close by in the foyer, the accused fired seven shots into, and at, the front doorway, all from a semi-automatic .22 LR handgun.
[22] The victim was struck twice: once in the right shoulder and in the neck. One of the .22 caliber LR bullets fired by the accused passed through her neck, perforating both carotid arteries.
[23] Amel Kebic came downstairs moments after the shooting and he found the victim collapsed on the stairs that led from the living room level to the upper bedroom level. He saw Khalid on the living room level holding the Colt .45 handgun. He saw an unfired .45 cartridge on the floor, close to the railing. A person standing at that railing could be visible to a person standing at the front door.
[24] Immediately after the shooting, Khalid, who had not been shot, dragged the victim to the living room level landing and then abandoned her while he left the townhouse to conceal his Colt .45 handgun. He stole Ariane Bourgon’s car and drove away, left his handgun partially concealed in it and returned to the victim’s townhouse.
[25] Kebic performed first aid on the victim and asked Vandenbosch to call 9-1-1, which he did. It was while this was happening that Khalid had left the townhouse to conceal his handgun. He returned and paramedics and police arrived a minute or two later. Upon the police arriving, Khalid asked Kebic to flush a box of .45 cartridges down the toilet. Kebic did not and instead placed the box in a bathroom drawer where police later found it. Police also found Khalid’s handgun in Ariane Bourgon’s car.
[26] Later, Khalid claimed to have performed first aid on the victim, which was a lie.
[27] The victim was declared dead on March 28, 2016, after being taken off life support. The cause of death was the shot fired by the accused that had perforated her carotid arteries.
[28] After the shooting the accused left in Cain’s car with Smith driving. They returned to the accused’s apartment. While the accused was away from the car he hid or disposed of the murder weapon. He fled and checked into an Ottawa motel under a false name and paid cash for the next two nights. He then fled to the Toronto area. An arrest warrant was issued on April 14, 2016, and after surveillance of a residence in Brampton, Ontario, he was arrested outside that residence on April 15, 2016.
2. The Competing Inferences
[29] From these facts, competing inferences can be logically and reasonably drawn as to the accused’s state of mind before and at the time of the shooting. I find they are the following.
Defence Submissions as to Inferences able to be Drawn
[30] As evidenced in the first round of texts from Khalid to the accused, Khalid was confrontational, offensive, derogatory and insulting in inviting the accused to come to where he was at the victim’s residence, if he had the courage to do so.
[31] The Defence says these texts should be placed in the context of the accused knowing of Khalid’s history of violence and firearm offences and fearing Khalid because of this criminal past.
[32] However, I agree with the Crown there is no evidence of this, although it is not disputed that the accused received these texts understanding there was potential for a violent confrontation between them.
[33] Before the first round of texts between them early Saturday morning, Chantal Bourgon had texted the accused to warn him that Khalid was looking for the accused’s address and was “psycho and drunk”. The accused’s response to Chantal was that he was “tryna pass out; it’s 6 am” and “ignore the nonsense”.
[34] Then came the first round of texts between Khalid and the accused where Khalid made direct threats and insults and derogatory sexual comments about the victim. The accused responded at 6:21 a.m., “Enjoy ur nite” and Khalid went on to repeatedly demand that the accused take back his “goof” insult.
[35] After the accused had, presumably, slept, he took up Khalid’s challenges. In the second round of texts twelve hours later, around 6 p.m. on Saturday evening, he repeatedly called Khalid a goof, joined in making extremely insulting and derogatory sexual comments about the victim and said “just pray to God u never c me”. Khalid responded by inviting the accused out for a confrontation and gave him a location. The accused’s last text was “Ur not worth my time son”, with no agreement to meet.
[36] Nine hours later, around 3:30 a.m., the accused and Khalid spoke on the phone two times, after which Khalid armed himself and left for a confrontation with the accused. He returned after being unable to find him.
[37] There is no evidence as to who initiated the suggestion of this confrontation but it is a reasonable inference that Khalid was determined to have a face-to-face violent meeting and knowing this, the accused took his own actions including arming himself, enlisting the assistance of Cain and arriving at the victim’s front door with his loaded handgun drawn and pointed at the door.
[38] It is a reasonable inference that the accused arrived at the victim’s townhouse with his gun drawn, knowing that Khalid was there.
[39] The Defence asks me to infer that the accused, who had been banging on the front door, could hear Vandenbosch’s warning to Khalid as Vandenbosch ran up the stairs, however, I agree with the Crown that there is no evidence of this in the turmoil of the moment and that such an inference remains speculative.
[40] It is a reasonable inference that the accused could have expected Khalid to open the front door in response to his banging.
[41] It is also a reasonable inference that when the accused did not shoot at Ariane Bourgon as she opened the door and he asked, “Where’s Christina”, that he asked this because he did not want to harm the victim but only his intended target, Khalid.
[42] It is a reasonable inference that when the victim arrived at the front door and extended her arms toward the accused, at almost the same time the accused could see Khalid standing at the upper landing railing carrying his handgun and that is when the accused, in the chaos of the moment, discharged his semi-automatic pistol towards Khalid, which fired seven times without him doing anything further.
[43] It is a reasonable inference that the victim’s death was, as the offence of manslaughter contemplates, an unintended consequence of the accused’s actions.
Crown Submissions as to Inferences able to be Drawn
[44] It is a reasonable inference from the agreed statement of facts together with the February 11, 2016, text messages between the victim and the accused, that the accused never stopped being a part of the victim’s life notwithstanding her relationship with Khalid.
[45] It is a reasonable inference that Khalid’s angry and insulting text to the accused on Saturday morning, asking where the accused was because he was harassing the victim, was the message that ultimately led to her shooting death. It is a reasonable inference that Khalid was aware of the accused’s ongoing contact with her and didn’t like it.
[46] It is a reasonable inference that the argument between the accused and Khalid was always over the victim. Both the accused and Khalid used offensive and possessory language about her. It is a reasonable inference that for each, their argument was rooted in jealousy.
[47] It is a reasonable inference that the accused had choices to make after the first round of text messages on Saturday morning. He could have retracted his “goof” insult, say nothing further and let matters cool. He did not and instead, on Saturday evening, escalated the threats and insults and became an active participant in them.
[48] It is a reasonable inference that the accused had no fear of Khalid and was an equal participant in their argument with no intention of backing down.
[49] It is a reasonable inference that the accused went to the front door of the victim’s townhouse looking only for her. He asked Ariane Bourgon where she was, didn’t shoot at Ariane, but when the victim appeared in front of him it is a reasonable inference that he discharged his gun at her and only her. This was not a two-way shootout. There is no evidence that Khalid discharged his handgun.
[50] It is a reasonable inference that the accused intended to shoot the victim.
3. Burden and Standard of Proof regarding Competing Inferences
[51] The inferences referred to above can be logically and reasonably drawn from the facts. They have direct impact on the determination of the accused’s state of mind leading to and at the time of the shooting and, therefore, on his degree of moral culpability.
[52] According to most of the inferences recommended by the Crown, they place the accused’s moral culpability at the highest end of the manslaughter spectrum because they lead to the conclusion that he intended to shoot the victim and so committed a “near murder”.
[53] According to most of the inferences recommended by the Defence, they place the accused’s moral culpability for the shooting of the victim in the category of an unintended consequence and, therefore, a lower level of blameworthiness.
[54] The inferences that compete with each other cannot be resolved to exist together. They are conflicting pieces of circumstantial evidence regarding the accused’s intention in firing his weapon.
[55] In a jury trial, the jury would be instructed that to find guilt on the basis of circumstantial evidence, they must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence. The jury would be instructed to consider all of the evidence together, including the circumstantial evidence, and not each issue separately.
[56] On this sentencing hearing where reasonable inferences able to be drawn from the facts serve to either raise or lower the accused’s culpability regarding his state of mind at the time of the shooting, it is those serving to raise his culpability that I have determined should be regarded as equivalent to aggravating factors on sentence.
[57] As such, circumstantial evidence of intention in the form of inferences serving to aggravate sentence require proof beyond a reasonable doubt, by the Crown, that they are the only reasonable inferences that can be drawn from the evidence. Of course where inferences compete with each other, the Crown has not met its legal burden and the accused is accorded the benefit of inferences regarding his intention that serve to lower his moral culpability.
4. Applicable Inferences
[58] On this basis of requiring proof beyond a reasonable doubt by the Crown of inferences that serve to aggravate sentence, I accept the following inferences as applicable on this sentencing and reject those others referred to before that conflict with these inferences:
a) Notwithstanding the victim’s relationship with Khalid, the accused and the victim remained in touch with each other and were friends.
b) Khalid was aware of the accused’s ongoing contact with the victim and didn’t like it.
c) The arguments between the accused and Khalid were over the victim.
d) The accused had choices to make after the first round of text messages on Saturday morning. He could have retracted his “goof” insult, say nothing further and let matters cool. He did not and instead, escalated the threats and insults.
e) The accused was an equal participant in his argument with Khalid, with no intention of backing down.
f) The accused went to the victim’s townhouse to confront Khalid.
g) When the accused arrived at the victim’s townhouse, armed with his gun drawn and pointed at the front door, he knew Khalid was there and could have expected Khalid to be the person to open the door.
h) When the accused did not shoot at Ariane Bourgon and asked where the victim was, he asked that question because he did not want to harm the victim and his intended target was only Khalid.
i) Upon seeing Khalid with a handgun, in the chaos of the situation the accused discharged his gun towards Khalid and did not intend to shoot the victim.
j) The victim’s death was an unintended consequence of the accused’s actions.
5. The Accused
[59] The accused was 23 years of age at the time of the shooting. He is now 25.
[60] He is a Canadian citizen with no Canadian criminal record. He has a 2013 Florida conviction for importing cocaine for which he received a 30 months’ sentence of incarceration with additional supervised release. The period of supervised release began on September 24, 2014, and ends September 25, 2018.
[61] He has great support from family and friends and they took the time and made the effort to write letters and speak very favourably of him and particularly how he has always provided assistance and support to them.
[62] The accused has expressed his sorrow and utmost remorse for his actions that ended the victim’s life. He has acknowledged that he has been a failure to society, to his family and to himself and says that by taking responsibility, he hopes to be able to move on.
6. The Victim
[63] Christina Voelzing was a bright, kind, caring, forgiving, sunny and funny young person. She had an irrepressible joie de vivre. Her family and friends will forever miss her. They shared with the Court and with each other their beautiful memories of her, and their heartache. If only grief could be fixed. We have all been touched by their memories. May they provide comfort in the years ahead.
7. Analysis
Applicable Sentencing Objectives
[64] The applicable sentencing objectives are denunciation and deterrence, both general and specific, together with rehabilitation.
[65] General deterrence assumes a prominent role given the accepted evidence at this sentencing that gun violence in Ottawa is rising alarmingly. In 2015, Ottawa had 46 shooting incidents and 20 persons were injured. In 2016, there were 68 shooting incidents and 35 persons were injured. Those numbers rose in 2017 to 74 shooting incidents with 35 persons injured and, as of April 13, 2018, of this year, there have been 28 shootings and 15 persons injured.
[66] Rehabilitation remains operative in the accused’s circumstances, particularly given his young age and his family and community support.
Aggravating and Mitigating Factors Affecting Sentence
[67] From the evidence before me, including the accepted inferences that serve to lower the accused’s moral culpability for his actions, the aggravating factors outweigh the mitigating. They are the following:
a) The accused planned and organized the violent confrontation at the victim’s home when he could have made other choices to de-escalate the argument with Khalid.
b) The victim was, in every sense of the word, a vulnerable victim, caught in the middle of an argument over her between Khalid and the accused.
c) The accused escalated and precipitated the confrontation with Khalid.
d) The accused possessed and brought a loaded handgun to the victim’s townhouse and pointed it at the front door, knowing there were a number of people in that townhouse and probably in the adjacent townhouse.
e) The accused discharged a loaded semi-automatic handgun into the victim’s residence immediately upon seeing Khalid with his handgun, and notwithstanding that the victim was close in front of him.
f) The accused was under the influence of alcohol by way of “liquid courage”, serving to influence his judgment and actions in his mildly intoxicated state.
g) The accused has a prior criminal record and was on supervised release at the time of the shooting.
h) The accused fled the scene of the shooting and disposed of the gun.
i) The accused rented a motel room under a false name for two nights before leaving Ottawa, and was only arrested after a house connected to him in Brampton, Ontario was placed under surveillance.
j) The victim’s death has had a brutal impact on the victim’s family, friends and community (s. 718.2(a)(iii.1) of the Criminal Code).
k) The offence of manslaughter using a firearm is recognized by Parliament under s. 236(a) of the Criminal Code as being particularly serious and attracts a minimum statutory penalty of 4 years’ imprisonment.
[68] The factors serving to mitigate sentence are the accused’s plea of guilt, his youth, his supportive family and friends and his remorse, which I accept as sincere.
Presentence Custody Credit
[69] Counsel agree that the accused be given the accepted presentence custody enhanced credit of 1.5 days for every day that he has been in custody on this offence, pursuant to s. 719(3.1) of the Criminal Code.
[70] As of today’s date, the accused has been in custody for 781 actual days or 1172 days with the application of the enhanced credit. This enhanced credit of 1.5 amounts to a presentence custody credit of 3 years, 2 months and 15 days to be deducted from the accused’s sentence.
[71] Counsel do not agree as to whether the accused ought to receive an additional credit for 69 days of “lockdown” during his incarceration at the Ottawa-Carleton Detention Centre and Central East Correctional Centre.
[72] The Defence requests an additional 35 days’ credit for this period of hardship and bears the onus on a balance of probabilities of establishing circumstances that justify an additional pre-sentence custody credit pursuant to s. 719(3.1).
[73] In R. v. Duncan, 2016 ONCA 754, at para. 6, the Court held that in considering whether any enhanced credit beyond the 1.5 credit referred to in s. 719(3.1) should be given, “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)” and that the sentencing judge was to consider both “the conditions of the presentence incarceration and the impact of those conditions on the accused”.
[74] In Duncan there was evidence that there had been lockdowns for a considerable part of the inmate’s presentence incarceration due to staffing issues at the jail that the Court commented on as “worrisome”. The Court found that there was, however, no evidence of any adverse effect on that inmate flowing from those lockdown conditions, with the consequence that the Court could not “say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit” (paras. 6 and 7).
[75] The Defence has introduced jail records detailing the periods of lockdowns affecting the accused. Notwithstanding this evidence and the common-sense inference that lockdowns are, to say the least, “worrisome”, the Crown submits the Defence onus has not been met to entitle the accused to additional mitigation, as there is no evidence that the accused suffered particularly harsh treatment as a result of the lockdowns. The Crown points, instead, to its evidence to the contrary that the accused would have suffered minimally, if at all, from the lockdowns both in terms of being able to participate in rehabilitative programs and access to a phone, shower and visits.
[76] I agree the Defence has not met its onus to justify an additional credit beyond the 1.5 credit. There is no evidence that the lockdowns caused the accused to suffer particularly harsh treatment during his presentence custody.
[77] Therefore, the credit to be assigned to the accused’s presentence custody remains at a total credit of 1172 days as of today’s date, on the basis of 1.5 days credit for each actual day.
Length of Incarceration
[78] The starting point is the 4 years’ statutory mandatory minimum under s. 236(a) of the Criminal Code where a firearm is used in committing manslaughter.
[79] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
[80] It is the assessment of the accused’s moral culpability, or his degree of responsibility for his serious crime in light of all of the aggravating factors, that is critical to the determination of a sentence length that accords with the proportionality principle and achieves the applicable sentencing objectives and principles expressed in ss. 718, 718.1 and 718.2 of the Criminal Code.
[81] In R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133, at paras. 7 and 8, the Ontario Court of Appeal established a general range of 8 to 12 years’ imprisonment for manslaughter in circumstances characterized as an “aggravated manslaughter” involving the aggravating factors of a vulnerable and frail victim attacked in his own home, a victim who regarded the offender as a friend, the use of a knife during the attack to inflict seven stab wounds to the victim’s chest, the offender leaving the dying victim and the scene and hiding the knife, his lies to police to divert suspicion away from himself and the devastating impact on the victim’s family.
[82] The Ontario Court of Appeal said, at para. 7, that “[t]he range of sentence for the offence of manslaughter can vary immensely” and “[t]his case involved an incident that carried substantial moral culpability”. The Court found, at paras. 8 and 10, that the 14-year sentence imposed by the trial judge was outside the proper range for those circumstances and that offender, and reduced the sentence to one of 9 years’ incarceration after taking into account pretrial custody and a “modest consideration” (para. 6) regarding an issue related to provocation.
[83] It is not disputed, as affirmed in Clarke, that the range of sentence for the offence of manslaughter can vary immensely. As for any sentencing, it is the particular circumstances of the offence and of the offender that must be factored into the fashioning of a sentence that strives to reflect the applicable sentencing objectives and principles.
[84] The Defence submits that for the accused there were “elements” of self-defence and provocation behind his actions that, though not operating to excuse them in the legal sense, serve to explain his actions, and lessen his moral culpability for them and, therefore, his sentence.
[85] The Crown strongly disagrees. I also disagree. As stated before, the accused had other choices to make rather than to allow himself to feel provoked, to decide to escalate the argument with Khalid and to plan and organize a confrontation with him at a crowded townhouse holding, then pointing and discharging a loaded gun. The accused chose to resort to violent and dangerous vigilante justice in response to taunts and insults, in response to mere words.
[86] There is nothing in the reasons behind the accused’s violent response that lowers his moral blameworthiness for it. That he was aiming for Khalid, and not the victim, does not lower his moral culpability for the taking of a human life. That is one of the horrifying dangers of loaded guns. When they are fired, their bullets can find unintended victims. The accused intended to fire his gun and its bullets reached Christina Voelzing. This was not an accidental firing.
[87] The Defence has provided me with cases where sentences for manslaughter range from 6 to 10 years’ incarceration. None, he agrees, are comparable on their facts although some do involve previous acts of provocation from the victim that serve to help explain the crime and influence the assessment of the offender’s moral culpability.
[88] Some of the Crown’s cases regarding the length of sentence for manslaughter in roughly comparable circumstances are in the general range of 15 years’ incarceration. However, in R. v. Higham, 2009 ONCA 147, an endorsement by the Ontario Court of Appeal where the facts are lean, the sentence upheld was one of 19 years’ incarceration for “a manslaughter that was close to murder” (para. 4) in circumstances where the offender had armed himself with a handgun, travelled with the victim in his vehicle, exited the vehicle, then shot into it, hitting the victim and killing him. The Court commented, “The jury apparently had a reasonable doubt whether the appellant intended to hit and kill the victim when he discharged the firearm into the vehicle” (para. 2).
[89] The case of R. v. Almaktari, 2010 ONCA 802, has some similarities to the present case. The Ontario Court of Appeal, again in an endorsement where the facts are lean, upheld the trial judge’s sentence of 15 years’ incarceration. There had been a jury trial and the jury had acquitted the offender of first-degree murder and found him guilty of manslaughter. In a newspaper article fleshing out some of the facts from the trial judge’s sentencing decision, admitted as accurate by both counsel in the present case, the 15-year sentence was described as being “against a self-styled gangster who killed an unarmed man over an insult” in a public place. The offender had obtained a gun and hunted down the victim. The judge said, “It’s difficult to imagine a case closer to murder”. The Court of Appeal agreed with this characterization.
[90] Two cases from the Crown involve joint submissions on pleas of guilt to manslaughter: R. v. Loppie, 2006 CarswellOnt 3633 (Ont. Sup. Ct.) and R. v. Levesque [Unreported Decision] Sentencing, June 9, 2009 (Ont. Sup. Ct.), affirmed 2012 ONCA 231. In Loppie, the offender was sentenced to 15 years’ incarceration in circumstances where he had accidentally shot his girlfriend in the chest during an argument and then stayed to try to assist her. He had a prior criminal record for violence. In Levesque, the offender was sentenced to 16 years’ incarceration for a death during a home invasion. The offender was 19 years of age when she and four males invaded the victim’s home. The victim was brutally beaten and eventually shot. The offender was found to have directed the home invasion and had shared responsibility for the victim’s death. She was given some credit for her plea.
[91] I hesitate to label the accused’s crime as an “aggravated manslaughter”. While I understand that to be only a general characterization of facts that serve to place the manslaughter on the sliding scale of moral culpability between “near accident” manslaughter and “near murder” manslaughter, to me it is not useful in the present case.
[92] The accused armed himself in response to insults and threats, went to a residence with his gun pointed, intending to shoot and did shoot, hitting and killing a person other than his intended target. His moral blameworthiness remains high, notwithstanding that the victim was unintentionally killed.
[93] Given the weight of all of the aggravating factors I would, but for the accused’s plea, have sentenced him to a 15-year sentence of incarceration, as requested by the Crown. However, his plea of guilt is significant. It serves to underscore his statements of remorse. Additionally, he is a young man who is able to change, to rehabilitate himself.
Mr. Yaali please stand.
[94] I sentence you to 13 years’ incarceration. This is a significant sentence for a very serious crime. It is a significant sentence that emphasizes denunciation and deterrence both general and specific and at the same time, factors in your plea and your prospects of rehabilitation. It is a sentence meant to denounce your violent response to mere words, to denounce your resort to a loaded gun, to denounce your firing of your gun into a home causing the loss of a precious human life and to denounce your evading responsibility before your arrest.
[95] You are entitled to a deduction for presentence custody credit. That deduction, as explained before, is in the amount of 781 actual days at a rate of 1.5 amounting to a total deduction of 1172 days from your 13-year sentence. The sentence you have left to serve expressed in days is 3573 days or, in other words, approximately 9.79 years’ incarceration.
[96] There are two ancillary Orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for the purposes of DNA analysis and data bank storage. The second is an Order under s. 109 of the Criminal Code prohibiting you for 10 years commencing upon your release from incarceration from possessing any firearm, ammunition or other item as referred to in that section.
The Honourable Madam Justice Lynn Ratushny
Released: June 5, 2018