Court File and Parties

Court File No.: CR-18-10000033-0000 Date: 2018-09-26 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Ayub Ali

Counsel: Joanne Capozzi and Tim DiMuzio, for the Crown Cydney Israel, for Ayub Ali

Heard: July 4, September 4 and September 13, 2018

M. Dambrot J.:

[1] Mohamud Dirie and Ayub Ali were tried by me, with a jury, on an indictment alleging that they committed the first degree murder of Kadir Abdulkhadir on August 9, 2015. Mr. Abdulkhadir was shot five times and killed while standing behind a motor vehicle that was stopped on Bay Street just south of Dundas Street at 2:42 a.m. The jury found Mr. Dirie guilty of first degree murder, and Mr. Ali of manslaughter. I pronounced a sentence of imprisonment for life without eligibility for parole until he has served twenty-five years against Mr. Dirie as required by s. 745 (a) of the Criminal Code on an earlier occasion. I am now called upon to impose sentence on Mr. Ali.

The Offence

[2] The following is a summary of the facts surrounding the killing of Mr. Abdulkhadir. It includes both facts that were necessarily found by the jury in reaching its verdicts and my findings of fact on a beyond a reasonable doubt standard based on the evidence adduced before me at trial.

[3] There was a long-standing history of animosity between Mr. Dirie and Mr. Abdulkhadir dating back to a beating of Mr. Abdulkhadir by Mr. Dirie and his brother in 2009. The evidence adduced at trial satisfies me that the animosity related to the belief on the part of Mr. Dirie that Mr. Abdulkhadir had given information to the police that resulted in Mr. Dirie’s arrest and imprisonment, that that animosity endured from 2009 to 2015 when he murdered Mr. Abdulkhadir and that it was his motive for the murder.

[4] On July 17, 2015, Abdullahi Alifarah rented a blue Hyundai Elantra in order to take a trip to Niagara Falls that day. The car was due back to the rental company on July 19. Mr. Alifarah returned to Toronto on July 18, and loaned the car to Mr. Ali, expecting him to return it shortly. Mr. Ali did not return the Elantra that day, and, despite several earlier requests, finally returned it in the early hours of August 9, shortly after the homicide.

[5] On August 9, 2015, shortly after midnight, Mr. Ali picked up Mr. Dirie in the Elantra at 2063 Islington Avenue and drove to the Barcode nightclub with him. After parking the Elantra in the parking lot, Mr. Ali walked into the club with Mr. Dirie at 12:57 a.m. Mr. Abdulkhadir arrived at the club some time later, parked his car and entered at 1:35 a.m. Mr. Abdulkhadir, Mr. Dirie and Mr. Ali were all in the club at the same time for a period of about forty minutes.

[6] At 2:14 a.m., Mr. Ali descended the nightclub stairs and made his way to a pole situated in the parking lot where he had a view of anyone exiting the club. While Mr. Ali was there, Mr. Dirie called him on his cell phone. From all of the circumstances, I infer that Mr. Dirie was alerting Mr. Ali to the fact that Mr. Abdulkhadir was leaving the club.

[7] At 2:17 a.m., Mr. Abdulkhadir did in fact emerge from the club. His cousin, Koos Abshir was standing outside the club trying to get in at that time. At 2:19 a.m., Mr. Abdulkhadir stopped and spoke to Ms. Abshir. She testified that Mr. Abdulkhadir told her that “Monopoly”, a name used to refer to Mr. Dirie, was upstairs and that Mr. Abdulkhadir said to him, “Allah Naharisto”, meaning, “May your brother rest in peace”, a reference to Mr. Dirie’s brother who had died in June 2015. Mr. Abdulkhadir told Ms. Abshir that he also said to Mr. Dirie, “Let’s end the beef”. But Mr. Abdulkhadir said that Mr. Dirie shrugged his shoulder, showing that he did not accept Mr. Abdulkhadir’s effort to make peace between them. Mr. Abdulkhadir took Ms. Abshir to a limousine in which a number of people were going to be driven to the Marriott Hotel on Bay Street to attend an after-party. He told her they would meet later at the Marriott. Although Ms. Abshir was far from an ideal witness, I accept her account of this conversation.

[8] As Mr. Abdulkhadir and Ms. Abshir were standing at the limousine, Mr. Ali left the pole and began to walk across the edge of the parking lot towards the attendant’s booth. Mr. Ali continued towards his Elantra and got into the driver’s side of the car. At that point in time, Mr. Abdulkhadir and an unknown person who was with him entered Mr. Abdulkhadir’s vehicle, with Mr. Abdulkhadir assuming the driver’s seat.

[9] Mr. Dirie exited the club about two minutes after Mr. Abdulkhadir and stood at the top of the stairs, outside the club. He proceeded to the same limousine that Ms. Abshir had entered, leaned into the open door, and then headed towards Mr. Ali’s Elantra and got into the passenger side.

[10] After Mr. Abdulkhadir’s vehicle moved out of its parking spot and began to move towards the exit, Mr. Ali powered up his car and began to exit his parking spot. Rather than taking the obvious path out of the parking lot, Mr. Ali turned the car to the right, pulled up to the end of the row where Mr. Abdulkhadir’s car had been, and turned his headlights off. I conclude that he and Mr. Dirie were keeping an eye on Mr. Abdulkhadir’s car and waiting for it to exit the parking lot so that they could follow it to the Marriott.

[11] When Mr. Abdulkhadir left the lot, two other cars followed immediately behind him. Mr. Ali drove his car in behind them and exited the lot shortly after Mr. Abdulkhadir did.

[12] The limousine left the Barcode area at around the same time as Mr. Ali and Mr. Abdulkhadir, and proceeded in error to the Marriott Hotel at 90 Bloor Street East rather than the one on Bay Street, arriving around 2:30 a.m. Once it got there, it proceeded to the Marriott on Bay Street. While on the way, Mr. Dirie’s girlfriend, Ebada Korshel, who was one of the passengers in the limousine, was on the phone with him, undoubtedly telling him of the error and their whereabouts, and that they were coming back south to the Marriott on Bay. Mr. Abdulkhadir was also in the area of the Marriott on Bloor Street at the same time as the limousine. For whatever reason, he obviously had made the same error as the limousine driver.

[13] Mr. Ali and Mr. Dirie were in the area of the Marriott on Bay by about 2:30 a.m. Their Elantra was videoed coming southbound on Bay St. and turning into the Marriott hotel driveway at about 2:36 a.m., arriving before either the limousine or Mr. Abdulkhadir. After driving the loop of the Marriott driveway, Mr. Ali drove the Elantra into the Eaton Centre Parkade so that they could remain hidden, out of view of arriving vehicles.

[14] Ten seconds after Mr. Ali entered the Parkade, the limousine appeared proceeding southbound on Bay Street across from the hotel. About 23 seconds later, Mr. Abdulkhadir and a black car pulled up parallel to each other southbound on Bay St. Mr. Ali immediately turned the Elantra around in the Eaton Centre Parkade and proceeded to the mouth of the entrance to the Parkade where Mr. Abdulkhadir’s car was plainly visible in front of them. Mr. Ali turned the Elantra to the right, heading in a northbound direction. Rather than leave the area, he made a U turn and at 2:42 a.m., he drove up behind the two cars pulled up on the road, putting Mr. Dirie into a perfect position for an ambush of Mr. Abdulkhadir in the middle of Bay St.

[15] Mr. Abdulkhadir was standing at the back of his vehicle leaning over his trunk, which was open. Mr. Dirie, armed with a handgun, exited the passenger door of the Elantra, approached Mr. Abdulkhadir from behind, and fired a fatal shot, which struck Mr. Abdulkhadir in the face as he turned towards Mr. Dirie. Mr. Dirie continued to shoot. He shot Mr. Abdulkhadir a total of five times, twice while he was on the ground. This was a planned and deliberate execution of Mr. Abdulkhadir by Mr. Dirie.

[16] Mr. Abdulkhadir’s car then sped away southbound on Bay, followed by Mr. Ali in the Elantra. Mr. Ali ultimately drove the Elantra to the area of Dixon Road, divested himself of it and made arrangements, directly or indirectly, for Mr. Alifarah to pick it up.

[17] The jury found Mr. Ali guilty only of manslaughter. This necessarily means that they were not satisfied that Mr. Ali either shared, or was aware of Mr. Dirie’s intention either to kill Mr. Abdulkhadir, or to cause bodily harm to Mr. Abdulkhadir that Mr. Dirie knew was likely to kill Mr. Abdulkhadir, being reckless as to whether Mr. Abdulkhadir died or not. In theory, the jury might have been satisfied that Mr. Ali did have knowledge of Mr. Dirie’s state of mind, but had a reasonable doubt that he intended to help Mr. Dirie commit the offence of murder. However such a result is fanciful. If Mr. Ali knew what Mr. Dirie intended, it is impossible to imagine that despite positioning Mr. Dirie in the perfect place to commit the murder, he did not intend to help him do it. As a result, I conclude that Mr. Ali did not know that Mr. Dirie had the state of mind necessary for murder.

[18] On the other hand, as a result of the manner in which I charged the jury, the verdict necessarily means that the jury was satisfied beyond a reasonable doubt not only that Mr. Ali knew Mr. Dirie was pursuing Mr. Abdulkhadir, but also that Mr. Ali knew Mr. Dirie had a firearm in his possession and intended to use it when he caught Mr. Abdulkhadir.

[19] I say this because, in my charge, I told the jury that in order to find Mr. Ali guilty of manslaughter, they had to find that Mr. Dirie caused the death of Mr. Abdulkhadir, that Mr. Ali drove Mr. Dirie to the place where Mr. Dirie caused the death of Mr. Abdulkhadir, and that Mr. Ali’s conduct had the effect of aiding Mr. Dirie to cause the death of Mr. Abdulkhadir. In addition, when charging the jury on the state of mind necessary for Mr. Ali to be guilty of manslaughter as an aider, I told them that Crown counsel had to prove beyond a reasonable doubt that:

(a) Mr. Ali knew that Mr. Dirie intended to discharge a firearm while being reckless as to the life or safety of another person; (b) Mr. Ali intended to aid Mr. Dirie to discharge a firearm while being reckless as to the life or safety of another person; and (c) a reasonable person, in the same circumstances, would realize that the unlawful act would likely put another person at risk of bodily harm.

[20] In addition, in answer to a question asked by the jury, I explained the following, perhaps more clearly than I had in the charge:

Once again, bear in mind that Mr. Ali’s state of mind must be assessed at the time he did an act that amounts to aiding, not at the time when Mr. Dirie shot Mr. Abdulkhadir, or after he shot Mr. Abdulkhadir. If Mr. Ali only learned what Mr. Dirie intended to do when Mr. Dirie shot the gun, or after he shot the gun, then Mr. Ali did not have the state of mind necessary to be an aider.

[21] In giving this instruction to the jury, I probably placed the bar too high, to the benefit of Mr. Ali. But that is the instruction I gave, and that is what the jury found.

[22] As a result, I must sentence Mr. Ali on the basis that he knew that Mr. Dirie intended to discharge a firearm while being reckless as to the life or safety of another person, obviously Mr. Abdulkhadir and any members of the public present, and that he intended to assist Mr. Dirie to do exactly that. I add that if I were not compelled to reach this conclusion by the jury’s verdict, I would have reached the same conclusion in any event. Simply put, I must sentence Mr. Ali on the basis that:

(1) he did not know that Mr. Dirie would actually shoot Mr. Abdulkhadir once they found him, (2) but he did know that Mr. Dirie was armed, was tracking Mr. Abdulkhadir down, and intended to discharge his firearm in the presence of Mr. Abdulkhadir once he found him while being reckless as to the life or safety of Mr. Abdulkhadir and others, (3) he intended to help Mr. Dirie to accomplish this end, and (4) a reasonable person in the same circumstances would realize that discharging the firearm would likely put another person at risk of bodily harm.

[23] The jury’s verdict does leave open the question of when Mr. Ali acquired the knowledge that Mr. Dirie was armed, was tracking Mr. Abdulkhadir down and intended to recklessly discharge his firearm in the presence of Mr. Abdulkhadir once he found him, and when he formed the intention to help Mr. Dirie to accomplish this end. It falls to me to resolve this issue. The defence argues that based on the evidence, I should find that Mr. Ali acquired that knowledge and formed that intent while inside the Eaton Centre Parkade, and his culpability arises when he drove Mr. Dirie out of the Parkade and positioned him behind Mr. Abdulkhadir. I do not agree. While I do not make a finding that Mr. Ali had this knowledge and intent when he picked up Mr. Dirie that evening, or even when they entered the club, I am satisfied beyond a reasonable doubt that he had acquired the knowledge and formed the intent by the time he exited the club shortly after 2:00 a.m., based on Mr. Ali’s movements and actions from that time forward.

[24] As a result, I find as a fact that Mr. Ali tracked Mr. Abdulkhadir to the Marriott Hotel, lay in wait for him in the Eaton Centre Parkade, and then drove Mr. Dirie to a position behind Mr. Abdulkhadir on Bay Street, knowing throughout that Mr. Dirie was armed with a firearm, and all for the purpose of aiding Mr. Dirie to recklessly discharge his firearm in the presence of Mr. Abdulkhadir.

[25] A final note. The record is silent as to any relationship between Mr. Ali and Mr. Dirie, or between Mr. Ali and Mr. Abdulkhadir prior to the night of the murder. As a result, there is no evidence that Mr. Ali himself bore Mr. Abdulkhadir any personal ill-will, or that he had any personal motive to do him harm.

The Deceased

[26] Victim Impact Statements from the mother of the deceased, five of his siblings and two neighbours were placed before me. Mr. Abdulkhadir was described as respectful, helpful and generous by the two neighbours. Members of Mr. Abdulkhadir’s family all spoke eloquently of him as a loving, considerate, kind, caring, responsible and humble son and brother who was a father figure to his younger siblings. He was jolly, funny and fun. His death is a great loss to his loved ones.

The Offender

[27] Mr. Ali is a youthful first offender. He is 22 years of age, and was 19 at the time of the commission of the offence. He had completed high school, and was about to enter second year at Humber College, where he intended to study Civil Engineering Technology. He has been an active volunteer at the Dar-ul-Hijra Islamic Centre where he was said to be a role model for younger people. He was a member of the Khalid Bin Al-Walid Mosque community, participated in their camps and attended many of their conferences. He also assisted younger players and played an informal leadership role in the Somali Mentorship Basketball League, a part of the Somali Youth Association of Toronto.

[28] Mr. Ali’s association on the night of the murder with Mr. Dirie, who has a significant criminal record for weapons and firearm offences as well as offences of robbery, uttering threats and drug trafficking, and Mr. Ali’s involvement in this offence are inconsistent with the picture painted of him by friends and family, and remain unexplained.

The Positions of the Parties

[29] The Crown argues that Mr. Ali participated in an extremely serious offence for which he bears a high level of moral culpability. While manslaughter covers a broad spectrum of offences ranging from near accident to near murder, this offence approaches the near murder end of the spectrum. The gravity of the offence of manslaughter when committed using a firearm and the degree of responsibility that an offender must bear for it is reflected in the life imprisonment maximum and the four year minimum punishment for the offence when committed in this fashion: s. 236 (a) of the Criminal Code. The range of sentence for an aggravated manslaughter such as this one is imprisonment for 8 to 12 years. The Crown says that, having regard to the aggravating features of this offence, the need to emphasize denunciation for the use of a firearm resulting in a violent killing on a public street, and giving some consideration to rehabilitation, and bearing in mind the alarming rise in gun violence in this community, the appropriate sentence is 12 to 13 years less credit for pre-trial custody and enhanced credit for the circumstances of that custody.

[30] The defence argues that, given the reduced role in the offence played by Mr. Ali, his age, impressive antecedents and the absence of a criminal record should result in the imposition of the shortest possible sentence. Given Mr. Ali’s real potential for rehabilitation, the defence says that the appropriate sentence is imprisonment for six years less credit for pre-trial custody and enhanced credit for the circumstances of that custody.

Analysis

[31] It has been said that no sentencing discretion is wider than that for manslaughter. [^1] This is unsurprising, because manslaughter is a crime that varies greatly in its seriousness, sometimes coming very close to inadvertence, and sometimes coming very close to murder. The wide sentencing range reflects the variety of circumstances that can result in a manslaughter conviction. The exercise in each case is to impose a sentence that fits the facts and the circumstances of the particular case and the particular offender: R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.). That discretion is narrowed in this case by the application of s. 236 (a) of the Criminal Code, which, as I have noted, provides that where a firearm is used in the commission of the offence of manslaughter, a person who commits that offence is liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of four years.

[32] There can be no doubt that the minimum punishment applies to Mr. Ali. He committed the offence of manslaughter, and a firearm was used in the commission of the offence. I need not consider the application of the minimum punishment to a person in such circumstances who was unaware that a co-participant in the offence intended to use, or even had a firearm in his or her possession. In this case, Mr. Ali was aware that Mr. Dirie had a firearm and intended to use it in the commission of the offence.

[33] I begin my analysis with a consideration of the circumstances of this case. This offence of manslaughter is a very aggravated one. It arises in the context of the planned and deliberate assassination of Mr. Abdulkhadir committed by Mr. Dirie with a firearm, an offence that has had a devastating effect on Mr. Abdulkhadir’s family. While Mr. Ali did not share Mr. Dirie’s intention to kill Mr. Abdulkhadir, he took the lead in the deliberate stalking of Mr. Abdulkhadir. He was behind the wheel of the car when he and Mr. Dirie lay in wait for Mr. Abdulkhadir at the Marriott Hotel, and he maneuvered the car out of the Eaton Centre Parkade, turned north and then executed a U turn to place his car, and Mr. Dirie and his firearm behind the back of the helpless victim. Mr. Ali did all of this not for the purpose of killing Mr. Abdulkhadir, but for the purpose of aiding Mr. Dirie to discharge his firearm while being reckless as to the life or safety of Mr. Abdulkhadir and others. Mr. Ali’s offence can appropriately be described as a “near murder.”

[34] I recognize that the use of a firearm does not, of itself, aggravate the offence, because it is already taken into account by s. 236(a). But the circumstances surrounding the use of a firearm can aggravate the sentence (see R. v. Araya, 2015 ONCA 854, 344 O.A.C. 36 at para. 26), and clearly do here, having regard to the fact that Mr. Ali intended to and did aid Mr. Dirie in discharging it in the presence of Mr. Abdulkhadir, in a public place, while being reckless as to the life or safety of Mr. Abdulkhadir and others.

[35] The offence of manslaughter committed in circumstances such as these usually demands an emphasis in imposing sentence on the protection of society, and the principles of denunciation, general and specific deterrence. In this respect, the words of the trial judge endorsed on appeal in R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.) at para. 77, albeit in the context of the minimum period of parole eligibility in a second degree murder case, are applicable here, and have even greater force today:

Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.

[36] Equally applicable here is what the Court of Appeal went on to say at para. 78:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

[37] In several manslaughter cases that have been considered by the Court of Appeal, the Court applied a range of sentence of imprisonment for 8 to 12 years to what appears to be subcategories of manslaughter with labels such as “brutal” or “aggravated”. However in Devaney, at paras. 33-34, the Court of Appeal expressed the view that it was not useful to attach labels to subcategories of an offence. Instead, the Court emphasized that the exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender, but noted that part of this exercise is to impose similar sentences for similar offences and offenders.

[38] In the end, I will follow the approach most recently adopted by the Court of Appeal in R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 80-86. Specifically, at paras. 82-83, the Court said:

82 In my view, there is no reason to interfere with the sentence imposed by the trial judge. As this court stated in R. v. Devaney, 2006 ONCA 777, [2006] O.J. No. 3996, 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 13 and 14, it is appropriate for a trial judge to consider a range of sentence for a particular offence committed in particular circumstances from which he or she may deviate after considering the particular facts of the case, including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender. Where facts or circumstances exist that distinguish the situation significantly from other cases where sentences were imposed in the range, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts.

83 That is precisely what the trial judge did in this case. He identified a range of 8 to 12 years as disclosed by the jurisprudence for cases of aggravated manslaughter, following which he took into account the specific mitigating and aggravating circumstances present in this case. The appellant can point to no error in that analysis.

[39] In my view, the circumstances of this offence place it at the higher end of manslaughter, close to murder. Mr. Ali, knowing that Mr. Dirie was armed with a firearm, provided the means for Mr. Dirie to track the victim to the Marriott Hotel, lay in wait for him in the Eaton Centre Parkade, and then approach him unseen from the rear. And Mr. Ali did all of this in order to aid Mr. Dirie to discharge his firearm on a public street in the presence of Mr. Abdulkhadir while being reckless as to the life or safety of Mr. Abdulkhadir and others, and in circumstances where a reasonable person would realize that the unlawful act would likely put another person at risk of bodily harm. I do not accept the argument that the absence of the suffering experienced by the victim in, for example, a prolonged knife attack resulting in death, moves this crime away from the high end of manslaughter.

[40] Despite the seriousness of this offence, I cannot ignore the mitigating circumstances of the offender. Mr. Ali was only 19 years of age when he committed the offence, and had no criminal record. Not only is he a youthful first offender, but the offence appears to be out of character. Indeed, it is inexplicable. He apparently has been a good son and brother, a good member of the community and a positive person who is serious about his education and about helping others. No hint of his motive for getting involved in this crime can be found in the evidence, and I cannot speculate about it. General deterrence, denunciation and rehabilitation must all be given significant weight.

[41] Were it not for Mr. Ali being a youthful first offender with a good background, I would not hesitate to impose a sentence of 12 years for this offence. But being a youthful first offender has a significant impact on the appropriate punishment. The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offenses and offenses involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.) at pp. 543-544.

[42] However when a youthful first offender is sentenced for an extremely serious crime of violence for which a lengthy penitentiary term is warranted, all of the principles of sentencing, including rehabilitation, remain important, but the objectives of denunciation and general deterrence gain prominence, and grow with the seriousness of the circumstances of the particular crime: R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99 at paras. 41 and 42. Still, even when general deterrence and denunciation have to be weighed heavily in sentencing for a serious violent crime, the primary consideration in sentencing the youthful first time offender has been said to remain individual deterrence and rehabilitation: R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797 at para. 5. In balancing the factors, the sentencing judge in Brown still had to impose the shortest term of imprisonment that is proportionate to the crime and the responsibility of the offender, given his young age: Brown, at para. 7. In Brown, that sentence was imprisonment for 7 years for an armed home invasion involving horrific violence.

[43] I note that there is an apparent inconsistency between Brown and Araya, a decision I referred to earlier. Araya was an 18-year-old first offender who, like Mr. Ali, was a student at Humber College who was found guilty of manslaughter as a party. In considering the appropriate sentence for Araya, Laskin J.A. stated, for the Court, at para. 19:

A fit sentence for Araya must be proportionate to the gravity of his offence and to his moral blameworthiness. And it must be assessed in the context of the purposes and principles of sentencing in s. 718 of the Criminal Code. I agree with the trial judge that in this case the objectives of “paramount concern” are general deterrence and denunciation. However, because Araya is a youthful offender, rehabilitation should also be given significant weight. (Emphasis added.)

[44] I resolve this apparent inconsistency by observing that “primary consideration” and “paramount concern” are not terms of art. What I take from these cases is that when a youthful first offender commits a serious crime of violence, denunciation, general deterrence and rehabilitation are all very weighty considerations. Out of an abundance of caution, I will consider rehabilitation to be the primary consideration, but with denunciation and deterrence being very weighty considerations as well.

[45] As a result, in this case, doing the best I can to impose a sentence that is proportionate to the crime and Mr. Ali’s responsibility, and gives primary consideration to individual deterrence and rehabilitation while still giving great prominence to denunciation and general deterrence, instead of imposing the 12 year sentence I mentioned earlier, I impose a sentence of imprisonment for 9 years, subject to the following.

[46] In addition to the consideration I give to Mr. Ali because of his age and antecedents, I must give him credit for his lengthy period pre-sentence custody, and enhanced credit because of the circumstances of that custody. As of today, Mr. Ali has spent 3 years and 12 days in custody, and I give him credit of 4 years, 6 months and 18 days for it calculated on a one and a half for one basis. In addition, a great deal of material has been placed before me primarily concerning lock-downs and triple bunking endured by Mr. Ali from time to time while in custody. I am spared from discussing this material by the agreement of counsel that I should give Mr. Ali 6 months of enhanced credit for it. I accept that agreement, but for ease of calculation, I will give him enhanced credit of 6 months and 13 days.

Disposition

[47] Mr. Ali is sentenced to imprisonment for 9 years, less enhanced credit for pre-sentence custody of a total of 5 years and 1 month. As a result, he is sentenced to an effective term of imprisonment of 3 years and 11 months.

[48] In addition, I impose:

• a prohibition order pursuant to s. 109 of the Criminal Code for 10 years;
• a primary offence DNA order pursuant to s. 487.051 of the Criminal Code; and
• an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Ali from communicating with Fousia Hassan, Koos Abshir and all other members of their immediate family.

M. DAMBROT J.

RELEASED: September 26, 2018

COURT FILE NO.: CR-18-10000033-0000 DATE: 20180926 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – AYUB ALI REASONS FOR SENTENCE DAMBROT J. RELEASED: September 26, 2018

[^1]: Clayton C. Ruby et al, Sentencing, 9th ed. (Toronto: LexisNexis, 2017) at sec.23.133