Court File and Parties

COURT FILE NO.: CR-18-4139 DATE: 2020-03-02 Delivered Orally and in Writing: March 2, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DIA ‘EDDIN HANAN Offender

Counsel: George Spartinos & Jayme Lesperance, for the Crown Christopher Uwagboe, for the Offender

HEARD: January 13 and 14, 2020

REASONS ON SENTENCING

MUNROE J.:

[1] Dia Eddin Hanan is before me for sentencing.

[2] Mr. Hanan intentionally and unlawfully shot two people killing one and paralyzing the other. He did not act in lawful self-defence. He shot without an intent to kill. He shot with a handgun that was illegal for him to possess. This is the conduct for which Mr. Hanan now is being sentenced.

[3] On November 28, 2019, following a four-week trial, a jury returned the following verdicts against Mr. Hanan:

As to Count 1 – Second Degree Murder of Alekesji Guzhavin, contrary to Section 235(1) of the Criminal Code of Canada: Not Guilty of Second Degree Murder but Guilty of Manslaughter of Alekesji Guzhavin, contrary to Section 234 of the Criminal Code of Canada;

As to Count 2 – Attempted Murder of Gregory Henriquez, contrary to Section 239(1) of the Criminal Code of Canada: Not Guilty;

As to Count 3 – Possession of a Loaded Restricted Firearm, Namely a Handgun, Without a Licence, contrary to Section 95(1) of the Criminal Code of Canada: Guilty; and

As to Count 4 – Discharge of a Firearm at Gregory Henriquez with Intent to Wound, contrary to Section 244(1) of the Criminal Code of Canada: Guilty.

[4] Upon the defence request, a pre-sentence report (PSR) was ordered.

[5] A sentencing hearing was held on January 13 and 14, 2020.

[6] Mr. Hanan accepts the facts in the PSR with the following exceptions:

1. Citizenship: at page 2, the PSR identifies Mr. Hanan’s citizenship as Canadian. This is not accurate. Mr. Hanan is a citizen of Jordan with Convention refugee status in Canada;
2. Marital Status: at page 2, the PSR identifies Mr. Hanan’s marital status as single. This is not accurate. Mr. Hanan is married.
3. Work History: at page 6, paragraphs 3 and 4, the PSR writer was unable to confirm Mr. Hanan worked for a company called “Keystone” by only contacting a company called Keystone Renovations. Mr. Hanan never worked for Keystone Renovations; he worked for Keystone Masonry.

[7] I accept the PSR modifications as noted above. [1] I have reviewed and considered the pre-sentence report as modified.

[8] Six victim impact statements were filed. [2] All concern the deceased, Alekesji Guzhavin. All expressed deep sorrow and loss. All noted with great sadness the birth of the deceased’s daughter after her father’s death lamenting Mr. Guzhavin’s forever absence in her life. The statement of Diana Guzhavin, a younger sister of the deceased, was read aloud by Crown counsel at her request. Her statement was particularly poignant. Diana Guzhavin wrote: “the death of him broke me.” “The loss consumed me and I found myself falling into depression.” I hear you. I have considered all these statements.

[9] Mr. Hanan exercised his right of allocution. Mr. Hanan used his right to assert his innocence repeating his claim that he acted in lawful self-defence. I will have more to say about Mr. Hanan’s words later in these reasons.

[10] I have reviewed and considered the character letters submitted by Mr. Hanan. [3] These include one from his wife, four from family (his mother, brothers and aunt), two from neighbours, and eight from friends, including childhood friends.

[11] His wife’s letter describes Mr. Hanan as a “wonderful husband, father and friend.” Mother describes her son as a “good man.” His aunt agrees with this description saying Mr. Hanan is good to his wife and children. The brothers say Mr. Hanan took on the role as father while they grew up in a home without their father. Indeed, one of the brothers’ friends wrote that Mr. Hanan treated him like a son when the writer was estranged from his family. The two neighbours describe Mr. Hanan as a great neighbour always willing to help when needed. The many letters from friends are uniform in describing Mr. Hanan in glowing terms: a loving father and family man.

[12] I am impressed by these letters. They do provide a very positive picture of Mr. Hanan.

[13] Mr. Hanan submitted for my consideration, the following Certificates of Completion for a variety of jail programs while detained:

• Problem Solving;
• Being an Effective Father (x 3);
• Thoughts in Action;
• Supportive Relationships;
• Anger Management;
• Goal Setting;
• Looking for Work;
• Recognizing Healthy Relationships;
• Managing Stress;
• Change is a Choice – Connections; and
• It’s a Gamble.

[14] I have reviewed and considered them.

[15] Counsel for Mr. Hanan submitted and asked me to consider the Reasons and Decisions (Removal Order) of the Immigration Appeal Division dated December 11, 2019. The decision concerns Mr. Hanan’s appeal of his May 7, 2019 deportation order on the grounds of serious criminality. The appeal does not challenge the legality of the deportation order but raises humanitarian and compassionate grounds seeking special relief to be allowed to remain in Canada. A joint position was put before the tribunal for a stay of the removal order to allow for the disposition of the pending criminal charges – namely this case. The tribunal accepted the joint position and entered a stay, finding there were sufficient humanitarian and compassionate considerations.

[16] I have heard, appreciate and consider the submissions of counsel for both parties. The prosecution advocates a global sentence of 17 years in prison. Defence counsel submits a prison sentence between six and ten years is fit and appropriate in this case because of the factual circumstances which establish a reduced moral culpability of Mr. Hanan.

[17] The Crown also seeks ancillary orders regarding weapons and DNA. The defence does not object to same.

Pre-Sentence Custody Credit

[18] Pre-sentence custody credit is sought.

[19] With regard to the pre-sentence custody credit, Mr. Hanan’s total time in pre‑sentence custody is 458 days through today. Multiplied by 1.5, the presumptive enhanced credit, the total time sought for pre-sentence custody, for which Mr. Hanan must be credited, is 687 days or 23 months: ss. 719(3) and (3.1) of the Criminal Code of Canada; R. v. Slack, 2015 ONCA 94.

Credit for Bail Conditions

[20] During submissions, defence counsel also requested credit for Mr. Hanan’s house arrest bail condition. Counsel seeks six months credit. Crown counsel agrees that strict bail conditions, such as those here, are a mitigating factor deserving of some credit. Without articulating a specific time position, the Crown says that the absence of any evidence of specific prejudice arising from the bail conditions also must be considered.

[21] Mr. Hanan was released on two recognizances of bail. His first bail release was with a 24-hour house arrest condition with exceptions that included employment, medical emergencies, and when in the company of one of his four sureties. This bail release commenced on December 20, 2016 and ended on June 27, 2018, when the bail conditions were changed, on consent, eliminating the house arrest condition and replacing it with a daily curfew of 12 hours, from 6:00 p.m. to 6:00 a.m. The house arrest condition was changed to permit Mr. Hanan to pick up his children from school. That recognizance ended when the jury returned its verdict on November 28, 2019 and Mr. Hanan was taken into custody.

[22] Thus, the length of time for which Mr. Hanan was subject to the 24-hour house arrest bail condition was 18 months and 7 days, from December 20, 2016 to June 27, 2018. The length of time for which Mr. Hanan was subject to a daily 12-hour curfew condition was 17 months, from June 27, 2018 to November 28, 2019.

[23] It is clear that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance. Rosenberg J.A. provided a summary of the approach to be taken on credit for pre-trial bail conditions, specifically dealing with house arrest, in R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.), at para. 37:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• The trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• Failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code of Canada.

[24] Subsequently, in R. v. Dragos, 2012 ONCA 538, at para. 77, the Ontario Court of Appeal confirmed that strict bail conditions, less than house arrest, are relevant mitigating circumstances.

[25] Mr. Hanan was released on bail in this matter for almost three and one-half years, from December 20, 2016 to November 28, 2019. The first form of release was for more than 18 months and included a house arrest condition. The second form of release, for 17 months, included a daily 12-hour curfew.

[26] Although I agree with the Crown that the onus is on the offender to establish the impact on his life caused by strict bail conditions, it is hardly refutable that house arrest, and a 12-hour curfew, will impact a person’s life. That said and accepted, the information before me is very general and does not clearly address “the ability of the offender to carry on normal relationships, employment and activity.”

[27] Even without specific information, it is obvious that a house arrest condition impacts a person’s life and liberty. Everything that is done outside one’s home has to be in consideration of and in compliance with the condition.

[28] In my view, having regard to all the circumstances, and especially the first 18‑plus months of house arrest, an appropriate credit in this case is six months.

Disputed Facts

[29] Before proceeding further, it is incumbent upon me to make findings of fact with regard to certain aspects of the offences. The jury verdict was general. Both the Crown and the defence seek a ruling from the court with regard to the who brought the handgun: Mr. Hanan or Mr. Guzhavin. In addition, both parties seek other factual rulings addressed below.

[30] The jury found Mr. Hanan not guilty of murder but guilty of the manslaughter of Mr. Guzhavin, not guilty of attempted murder but guilty of intentionally shooting Mr. Henriquez with the intent to wound, and guilty of possession of a handgun without a licence. As to all counts, the defence was self-defence: Mr. Hanan acted in lawful self-defence. By their verdict, the jury rejected Mr. Hanan’s self-defence claim beyond a reasonable doubt.

[31] But again the jury verdict was general. Neither the indictment nor the verdict specified a number of factors which may impact both the nature of the offence and the moral blameworthiness of the offender. Prominent among the possible factors is the identity of the person who brought the gun to the final, fateful meeting in the driveway: Mr. Hanan or Mr. Guzhavin.

1. Legal Principles

[32] Following a jury trial, the sentencing judge must sometimes determine the facts necessary to impose a fit sentence: R. v. Ferguson, 2008 SCC 6, at para. 16; R. Roncaioli, 2011 ONCA 378, at para. 59. The sentencing judge does not write on a clean slate. The judge must accept “the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 SCC 73, [1991] 2 S.C.R. 518, at para. 15. The sentencing judge “must not accept as fact any evidence consistent only with a verdict rejected by the jury”: Ferguson, at para. 17. Then, if determining facts is necessary, the judge must not attempt to “follow the logical process of the jury” but rather must make an independent determination of the facts: Ferguson, at para. 18. The sentencing judge must only find the facts necessary for a just and fit sentence: Ferguson, at para. 18. Finally, when the facts are sought by the prosecution, or otherwise are aggravating, the prosecution has the burden to prove said facts beyond a reasonable doubt: Criminal Code of Canada ss. 724(3)(b) and (e).

[33] Section 724 of the Criminal Code of Canada provides, in pertinent part:

(2) Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence (a) the court shall 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; (b) the party wishing to rely on a relevant fact … has the burden of proving it; (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact….

2. Principles Applied

[34] I review the requested findings of fact in the following sequence: First, I must decide whether the requested finding is necessary for a just and fit sentence. If not, I need not make any determination as to that fact. If so, I must proceed. Second, I must decide whether the requested finding is an express or implied fact within the verdicts themselves. If so, that fact is determined by the jury verdict. If not, I proceed. Finally, if there was sufficient evidence adduced at the trial, I must make an independent finding as to that fact. I am satisfied that sufficient evidence was adduced at trial to resolve the factual issues now before me.

[35] After an overview of the evidence, I will review the requested findings of fact in the above sequence and make the appropriate findings.

a. Overview

[36] A brief overview is important. The basic facts were never contested. Three men - Dia Hanan, Alekesji Guzhavin, and Gregory Henriquez - met twice outside the home of Mr. Hanan in the early evening on the date in question. During the second meeting, Mr. Hanan shot and killed Mr. Guzhavin and shot and wounded Mr. Henriquez. The handgun used was recovered by the police at the scene very shortly after the shooting. Mr. Hanan was not licensed to possess the handgun.

[37] At trial, the central issue was self-defence. The jury was presented with dramatically different versions of how the shooting happened. These different versions came from the trial testimony of the only two living eye-witnesses to the event: Mr. Hanan and Mr. Henriquez. It is clear that both versions cannot be true. It is also clear that self-defence only is available under Mr. Hanan’s version.

[38] According to Mr. Hanan, he knew Mr. Guzhavin as a very violent and dangerous man who used guns. Mr. Hanan heard that Mr. Guzhavin was extorting money from people under threats of violence and may be looking for money from him. Then, Mr. Guzhavin just showed up at Mr. Hanan’s house with an unknown black man, Mr. Henriquez, who Mr. Guzhavin identified as “my boy.” They were at Mr. Hanan’s house twice that night. On the first visit, Mr. Guzhavin pointed a gun at Mr. Hanan, in the presence of Mr. Henriquez, threatening to shoot him, and asking for money. According to Mr. Hanan, Mr. Guzhavin told him that he shoots people in broad daylight; read the paper. Mr. Hanan agreed to give Mr. Guzhavin money but told them he needed a short time to get the money. When the two returned to Mr. Hanan’s house, all three met down the driveway. Mr. Guzhavin was not satisfied with the $300 Mr. Hanan just gave him and demanded more, all in the presence of Mr. Henriquez. In this context, Mr. Henriquez told Mr. Hanan that he would go upstairs to watch his family while Mr. Hanan went to get more money. Mr. Hanan was afraid for both himself and for his family and knew he had to react. By this time, Mr. Guzhavin again had the gun out and was pointing it at Mr. Hanan. To distract Mr. Guzhavin, Mr. Hanan said someone was coming down the driveway. It worked, Mr. Guzhavin turned and Mr. Hanan snatched the gun from the hand of Mr. Guzhavin. Mr. Guzhavin and Mr. Henriquez immediately attacked Mr. Hanan attempting to recover the gun. A struggle ensued involving the three of them. The light went out. Shots were fired with Mr. Hanan holding the gun. Mr. Hanan thought they were shooting at him, so he fired back in the dark. When the light came back on, he saw the two men on the ground and the gun in his hand. Only then did he realize he shot both men. He had no intention to kill either one. He was only acting in defence of himself and his family.

[39] The version told by Mr. Henriquez is quite different. According to Mr. Henriquez, he did a favour for a recent friend, Alekesji Guzhavin, by driving him to Mr. Hanan’s house. Mr. Henriquez understood from Mr. Guzhavin that Mr. Hanan was his friend who was loaning him money that Mr. Guzhavin needed. In that effort, they were at Mr. Hanan’s house twice. On both times, Mr. Henriquez was not actively involved in the discussions between Mr. Guzhavin and Mr. Hanan but he neither saw nor heard any aggressive or threatening words or behaviour. He was never present when Mr. Guzhavin pointed a gun at Mr. Hanan. To the suggestion that Mr. Guzhavin told Mr. Hanan that he, Mr. Henriquez, was there to watch his, Mr. Guzhavin’s, back, Mr. Henriquez answered, “Are you serious, Mr. Guzhavin is 6’4” / 280 lbs. and Mr. Hanan is 5’8”.” To the suggestion that Mr. Guzhavin and Mr. Henriquez went to Mr. Hanan’s house to collect a “tax” with a gun, Mr. Henriquez responded, “So we allowed Mr. Hanan 15 minutes to prepare himself.” To the suggestion that he told Mr. Hanan he would go upstairs with Mr. Hanan to watch his family, Mr. Henriquez answered, “I don’t mess with families, man, I don’t.”

[40] On the second visit, when Mr. Henriquez looked up from his phone, Mr. Hanan suddenly had a gun and started shooting Mr. Guzhavin. As Mr. Henriquez described it, it “went from friend to nightmare in a couple of seconds.” Mr. Henriquez turned and started to run away but was shot twice, once in the back knocking him down and paralyzing him. After he was shot, Mr. Henriquez heard Mr. Hanan return to Mr. Guzhavin and shoot more times saying, “Die, motherfucker, die.” [4]

b. Who Brought the Gun?

(1) Necessity

[41] I agree that resolution of the issue over who brought the gun – Mr. Hanan or Mr. Guzhavin – is relevant to the determination of a just and fit sentence. It impacts both the nature of the offence and the moral blameworthiness of the offender.

(2) Express or Implied in Verdict

[42] Without question the jury, by its verdict, rejected self-defence with regard to all three charges, including the firearms charge. Also, without question, the jury was presented with two dramatically different versions of the shooting, only one of which, Mr. Hanan’s, had Mr. Guzhavin with a gun threatening Mr. Hanan. Mr. Hanan’s version, as summarized by his counsel, [5] was put to the jury and included the following:

Mr. Hanan acted in self defence in taking the gun that was pointed at him and acted in self defence in discharging the gun into the dark after they came after him to retrieve the gun saying “get it get it get it.” The shots are over in 11 seconds or less ….

[43] If the jury believed Mr. Hanan’s version, he would have been acquitted. Even if Mr. Hanan’s version raised only a reasonable doubt on how the shooting event unfolded, Mr. Hanan would have been acquitted. Moreover, to find Mr. Hanan guilty, and reject his claim of self-defence, the jury would have to believe the basics of Mr. Henriquez’ version beyond a reasonable doubt. How then can the jury’s conviction that Mr. Hanan illegally possessed the gun be consistent with the jury’s rejection of self‑defence? During submissions, I posed this question to defence counsel. Counsel responded that the jury could have accepted Mr. Hanan’s version of the event but found that the shooting of the gun nine times was excessive force thus rejecting self-defence. Defence counsel opined that the initial possession of the gun – the disarming of Mr. Guzhavin – was lawful self‑defence but when Mr. Hanan used the gun, that he initially possessed lawfully, and fired it multiple times, he then possessed it unlawfully. It was only then, in those few seconds, that the possession crime took place.

[44] By its guilty verdict on the firearms possession count, the jury necessarily found unlawful possession which meant, in this case, possession not in self‑defence. The defence seeks to parse seconds of time asserting that possession for some seconds was in lawful self-defence and possession for other seconds was not. I decline to go down this hair-splitting path and reject the defence submissions. Reasonableness must be applied to this issue: the reasonable factual implications of the jury’s verdict, express or implied. Reasonableness cannot be assessed in a vacuum but rather must be assessed in the context of the particular trial itself including how the case was tried and presented to the jury. Creativity of counsel in articulating a far-fetched scenario, not put to the jury, is not reasonable. By its verdicts, the jury found that Mr. Hanan brought the gun.

(3) Independent Finding

[45] In the event I am incorrect in my finding above, I turn my attention to making an independent finding on the issue of who brought the gun.

[46] There is conflicting evidence on this issue. Mr. Hanan testified it was Mr. Guzhavin who brought the gun and threatened him with it twice, both times in front of, and with the complicity of, Mr. Henriquez. He described a successful disarming of Mr. Guzhavin immediately followed by a desperate struggle for the gun with two much larger men ending in the shooting. In sharp contrast, Mr. Henriquez described a cold shooting by Mr. Hanan. He denied ever seeing a gun in the possession of Mr. Guzhavin, denied any struggle over the gun, and testified all was peaceful until he looked up from his phone and saw Mr. Hanan with a gun first shooting Mr. Guzhavin and then shooting him as he tried to flee. Obviously, both versions cannot be true. Resolution of these two versions will provide the answer to the question of who brought the gun.

(a) Assessment of Competing Versions

[47] The assessment of competing versions is subject to precise legal standards driven by the presumption of innocence and the burden of proof. I do not approach resolution by asking which version do I prefer. Rather, I must decide whether, on all the evidence, or the lack of evidence, the Crown has proven it was Dia Hanan who brought the gun beyond a reasonable doubt. [6]

[48] When an accused person testifies, as Mr. Hanan did before me, I assess his evidence in the same way that I assess the testimony of any other witness. I may believe some, none or all of Mr. Hanan’s testimony.

[49] However, because of the law on presumption of innocence and burden of proof, the law requires me, now the fact finder, to approach my ultimate decision making in a particular manner.

[50] First, if I believe Dia Hanan’s evidence that he did not bring the gun, that Mr. Guzhavin brought and produced the gun, I must find that Mr. Hanan did not bring the gun and that Mr. Guzhavin brought the gun.

[51] Second, even if I do not believe Dia Hanan’s evidence, if it leaves me with a reasonable doubt about whether he brought the gun, I must find that Mr. Hanan did not bring the gun and that Mr. Guzhavin brought the gun.

[52] Third, even if Dia Hanan’s evidence does not leave me with a reasonable doubt about whether he brought the gun, I can find that it was Mr. Hanan who brought the gun only if the rest of the evidence that I do accept proves Mr. Hanan brought the gun beyond a reasonable doubt.

[53] In this effort, I examine the differing versions against the physical and independent evidence. I also consider the reasonableness of the different versions.

(b) Assessment of the Evidence of Dia Hanan

[54] Mr. Hanan testified before me and the jury on the final day of trial evidence. I listened carefully to what he had to say and how he said it.

[55] Mr. Hanan’s conduct and demeanour as a witness did not impress me. Although well-spoken and respectful, during his trial evidence he came across as cocky, almost flippant. Although I can consider demeanour evidence, I must do so with great caution because Mr. Hanan’s attitude may arise from personal or cultural factors unrelated to credibility. Such a distinction is very difficult to determine. Accordingly, I will place little or no weight on this factor.

[56] Of much greater concern to me was the way in which Mr. Hanan gave his evidence. He repeated whole segments of claimed conversations even though that was not what was asked. And at times, when asked a direct question, Mr. Hanan did not respond to the question asked but rather would repeat a segment of his previously given version before arriving at the answer to the question. This approach is like an actor seeking a cue to prompt his lines rather than a witness recalling a past event. I find this testimonial behaviour to be one of repeating a memorized story rather than relating a personal experience.

[57] I am troubled by the inconsistency between Mr. Hanan’s claimed emotions and his averred conduct while experiencing these emotions. Mr. Hanan testified he was afraid of Mr. Guzhavin from the beginning given Mr. Guzhavin’s very violent reputation. Yet Mr. Hanan’s actions and words when confronted by Mr. Guzhavin exhibited defiance and strength, not fear. For a person who claimed to fear Mr. Guzhavin, Mr. Hanan acted very coolly, repeatedly challenging Mr. Guzhavin even at the barrel end of a gun. Although I consider that people under pressure do not always respond logically, to me such a tale sounds made up, rather than merely stating what happened. Indeed, accepting that Mr. Hanan was afraid and his defiant behaviour toward Mr. Guzhavin was all an act, then one must conclude that Mr. Hanan is a great actor, convincingly pretending to be something he is not. Either way, this evidence is a concern to me.

[58] Another part of Mr. Hanan’s evidence gives me pause. According to Mr. Hanan, Mr. Guzhavin was known to him as a very dangerous man who uses guns and shoots people. Mr. Hanan was warned by his friend that Mr. Guzhavin was out of jail, extorting money from people, and may be coming to Mr. Hanan’s home with a gun. So, to protect himself, Mr. Hanan armed himself with a weapon, a folding knife. I do not accept this evidence. To accept this evidence, I would have to conclude that Mr. Hanan lacked basic intelligence. He does not. He testified before me. Mr. Hanan is a bright man. I reject this evidence.

(i) criminal convictions

[59] Prior criminal convictions of a witness may be considered in assessing the evidence of the witness including an accused witness. Mr. Hanan admitted the following convictions:

• 2004 Public Mischief [7] 1 day jail (62 days of presentence custody)
• 2004 Unlawfully in Dwelling $300 fine (60 days of presentence custody)
• 2005 Unlicensed Poss of Prohibited Weapon $300 fine
• 2006 Cause Disturbance 1 day jail (4 days of presentence custody)
• 2007 Fail to Comply with Bail Conditions $100 fine; (3 days of presentence custody)
• 2008 Fail to Comply with Bail Conditions $125 fine
• 2008 Fail to Comply with Bail Conditions $125 fine
• 2009 Fail to Comply with Bail Conditions 1 day jail (15 days of presentence custody)
• 2009 Fail to Comply with Bail Conditions 1 day jail concurrent with above charge

[60] I may only use the fact, number and nature of these convictions to help me decide how much or little to believe and rely upon the testimony of Mr. Hanan in deciding this issue.

[61] A previous conviction, even many of them, does not necessarily mean that I cannot or should not believe or rely upon the testimony of Mr. Hanan to help me decide this issue. The prior convictions are only one of many factors for me to consider. Some convictions, for example, ones that involve dishonesty, like Mr. Hanan’s public mischief conviction, may be more important than others in deciding how much or little I will believe of and rely upon the testimony of Mr. Hanan in deciding this issue. Other convictions, for example, cause disturbance, are of less or no importance. I consider, as well, whether the previous convictions are recent, or happened a number of years ago. An old conviction may be less important than a more recent one. I will use my common sense and experience in considering their impact.

[62] I understand that I must not use the fact, number or nature of the prior convictions to decide, or to help me decide, that Mr. Hanan is the sort of person who would bring a gun to a meeting or, that he is a person of bad character and, thus, likely to have brought the gun.

(ii) evidence of the bad character of Mr. Guzhavin

[63] Under certain circumstances, most commonly when self-defence is raised, evidence of the bad character of the deceased is admissible including on the issue of who was the aggressor. It is appropriate that I consider this evidence on this issue of who brought the gun: Mr. Hanan or Mr. Guzhavin, the deceased. Accordingly, I consider the following evidence:

[64] Reputation for Violence – Sgt. Novak provided entries from Mr. Guzhavin’s criminal record which included: “known to be dangerous to others.” In other words, to the police Mr. Guzhavin had a reputation for violence. According to Mr. Hanan, Alekesji Guzhavin was a bad guy, a dangerous man.

[65] Specific Prior Acts of Violence Known to the Accused – Dia Hanan testified that he understood Mr. Guzhavin shot at a person or persons in a moving car in traffic during the afternoon a few months earlier in September, 2015. Mr. Hanan knew that Mr. Guzhavin had been arrested for attempted murder arising out of that shooting incident. I also heard from Mr. Hanan and Mr. Namir Zec that Mr. Zec recently had given money to Mr. Guzhavin after being threatened with violence.

[66] Specific Prior Acts of Violence Unknown to the Accused – The criminal record of Alekesji Guzhavin is before me pursuant to an admission. It shows criminal convictions from 2004 to February 2015. There are 13 convictions: two for violent crimes (assault and robbery), four for firearms crimes, six for property crimes and one for criminal harassment.

[67] I may consider this evidence to show the deceased’s bad character, that he had a disposition for violence. This evidence is relevant to show the probability of the deceased having been the aggressor and to support the accused’s evidence that Mr. Guzhavin brought the gun.

(iii) after the fact conduct of Mr. Hanan

[68] I heard evidence from Mr. Hanan that after the shooting he put down the gun, called 911, remained in front of his house, and directed the arriving police to the bodies. This evidence may be reasonably capable of supporting the inference that Mr. Hanan had nothing to fear because he acted in self-defence. In this regard, the evidence of Mr. Henriquez, that Mr. Hanan only started to yell for help after he shot two people, may be considered.

(iv) version assessed

[69] Finally, I assess Mr. Hanan’s version of the shooting and find it to be fanciful and unbelievable. I do not accept his version. In addition to the above articulated concerns, Mr. Hanan’s version makes no sense for a number of reasons most notably the following:

1) black out only for the shooting

[70] The location of the shooting was at the back of the driveway. According to Mr. Hanan, he had a spotlight at the back of his house that was activated by motion. Mr. Hanan testified that the light went out unexpectedly beginning at the struggle for the gun, through his shooting in the dark, only to come on again after the shooting when he yelled for help. This remarkable blackout for mere seconds was unexplained. Mr. Hanan admitted there was a great deal of motion during the struggle.

[71] There were numerous police and other witnesses who were at the back of the same driveway after the shooting. None of the first responders mentioned the existence of a motion‑sensored spotlight despite the presence of many moving officers in the back of the driveway. All described the scene as dark but not pitch black. Many used flashlights. Of the more than ten testifying officials who were at the scene that night, only one, Cst. Anthony Rucculo, said there was a spotlight affixed to the garage or house, but the officers still used their flashlights. There was no evidence confirming that any spotlight went on and off for seconds for no apparent reason.

[72] I find this evidence of a coincidental, mere seconds, blackout to be a deliberate and convenient lie by Mr. Hanan to enable his claim that he was shooting aimlessly in the dark. It further enabled Mr. Hanan to avoid explaining how shooting Mr. Henriquez in the back was self-defence. This momentary black-out claim is not believable and I do not accept it.

2) snatch attack

[73] According to Mr. Hanan, he took the handgun away from a much bigger man who was holding it in his hand in the normal fashion. This claimed disarmament was accomplished in a split‑second and without resistance. As stated by Mr. Hanan, it was “like stealing a sucker from a baby.” Then Mr. Hanan was immediately “attacked” by two much larger men, Mr. Guzhavin and Mr. Henriquez, who were trying to get the gun back. Mr. Hanan resisted by swinging his arms/hands around. There were punches and kicks. The light went out and he heard gunshots.

[74] In considering whether there was a snatch and struggle, as claimed by Mr. Hanan, I consider the size of the people involved: Mr. Hanan said he was 5’10 1/2” and weighed 140 pounds at the time. At trial I heard various measurements of Mr. Guzhavin. The pathologist, Dr. Elena Tugaleva, measured and weighed the body at autopsy as 6’1” and 222 pounds after the loss of some blood. The police records show 6’2” and 271 pounds. Mr. Henriquez estimate of the size of Mr. Guzhavin was 6’4” and 260 to 280 pounds. With regard to the size of Mr. Henriquez, he testified, without challenge, that he was 6’0” and a muscular 200 pounds at the time.

[75] I also consider the evidence of Cst. Ryan Jones and photographs of Mr. Hanan at the police station, Exhibit No. 3, with regard to a lack of visible injuries to Mr. Hanan. Although certainly a person may defend himself from force even if no injuries result, Mr. Hanan testified he was in a desperate struggle with two much larger men that included punching and kicking. Whether there are or are not visible injuries is simply one factor that may assist me in my assessment of Mr. Hanan’s version.

[76] I do not find that the evidence of Mr. Hanan in this regard to be reasonable. I do not believe it. Simply snatching a semi-automatic pistol from the hand of a much larger man without any resistance makes no sense to me. Then, for a much smaller man to prevail over two larger men punching and kicking in a claimed desperate struggle over a gun is fanciful and movie-like. Mr. Hanan had no marks on his body. This claim borders on the absurd. I do not believe it. I do not accept this evidence.

3) regripping pistol to shoot

[77] Mr. Hanan testified that he snatched the pistol from the hand of Mr. Guzhavin with his right hand (with his left hand on the wrist of Mr. Guzhavin). He grabbed the gun from the top, where the slide is. Holding a pistol in such a fashion is not how to hold a pistol for the purpose of firing it, which is by the pistol grip. Mr. Hanan admitted he fired the pistol repeatedly. The entire action took place within seconds. The first part, after the snatch, according to Mr. Hanan, included a struggle over the pistol with one large man on one arm and the other large man on the other arm with Mr. Hanan swinging his arms/hands. Then the shots rang out. How then, in such a short period of time during a struggle with two larger men, did Mr. Hanan position the gun in his hand so he could fire it? This question was put to Mr. Hanan, but he never provided a responsive answer. He kept saying he had his middle finger on the trigger from the time he snatched the gun. That answer gives me no comfort on how Mr. Hanan transferred the gun to hold it by its pistol grip or on how Mr. Hanan could shoot that pistol multiple times while holding it from its top with his middle finger on the trigger. In sum, I do not believe this evidence. It makes no sense to me.

4) shooting scenario

[78] Mr. Hanan’s evidence concerning the actual shooting evolved and makes no sense to me. On direct examination, Mr. Hanan said during this struggle for the gun in pitch-black darkness, he heard explosions that he described as “pow, pow, pow.” Mr. Hanan thought the men were shooting at him. He started shooting back in the darkness. He screamed for help to his neighbours. The light came back on and, when he saw Mr. Guzhavin on the ground and the gun in his hand, Mr. Hanan only then realized he shot him. On cross‑examination, Mr. Hanan said he was trying to squeeze the trigger and heard gunshots but thought they were shooting at him. He claimed he did not know the shots were coming from the gun he held. He tried to shoot back at them but could not see it was so dark. He was frantic.

[79] I do not find it reasonable that a person can be shooting a pistol multiple times while squeezing the trigger and hearing the corresponding sounds of the shots and not know he is the person who is shooting. This evidence makes no sense to me. I do not accept it.

5) remarkable marksmanship

[80] From the evidence, I find that nine shots were fired by Mr. Hanan from the seized pistol. Sounds of nine gunshots were recorded by the audio/video equipment of Mr. Valley and played at trial. The seized handgun had the capacity to hold 15 bullets and six bullets remained in the gun when it was seized by the police, meaning that nine bullets were fired if it was fully loaded at the commencement of the shooting.

[81] The body of Alekesji Guzhavin had seven bullet wounds, although as many as three of the wounds may have been caused by the same bullet: Dr. Elena Tugaleva ‑ forensic pathologist. The body of Gregory Henriquez had three bullet wounds: Dr. Mondeep Narewal, treating doctor. At least one bullet remains in the body of Mr. Henriquez.

[82] Mr. Hanan claimed that he could see nothing when he was shooting because the house spotlight unexpectedly went out. Although he admitted firing at his claimed attackers, the shooting was aimless and wild because he could not see.

[83] To cause ten bullet wounds to two separate persons with nine shots when shooting blindly not only is unbelievable, it defies common sense. I do not believe it.

(v) confirmatory evidence

[84] To the extent that a credibility assessment demands a search for confirmatory evidence, such evidence need not directly confirm the account in every respect. The evidence should, however, be capable of restoring my faith in the evidence.

[85] Here I find some confirmatory evidence. Without question, there was significant independent evidence to establish that Mr. Guzhavin was a dangerous man. Certainly, the police believed he was.

[86] This confirms the accuracy of the evidence of Mr. Hanan with regard to his belief that Mr. Guzhavin was a very dangerous man. It also provides some evidence that Mr. Guzhavin was the aggressor and brought the gun.

[87] I also must consider the after the fact evidence supporting the inference that Mr. Hanan had nothing to fear because, at least in his mind, he had done nothing wrong.

[88] However, given the nature and quantity of problems with the evidence of Mr. Hanan, as identified above, my overall faith in the evidence of Mr. Hanan is not restored.

(vi) summary

[89] In sum, and taking all into account, I reject the evidence of Mr. Hanan unless it is supported by other evidence I do accept.

(c) Assessment of the Evidence of Gregory Henriquez

[90] Gregory Henriquez testified over four days before the jury. These were not full days due to the discomfort asserted by Mr. Henriquez from his disability. Mr. Henriquez also did not attend the Windsor courtroom to testify. Rather, he testified from Florida by video link as ordered by this court pursuant to s. 714.2 of the Criminal Code of Canada. The technology was impressive and permitted his virtual presence before the parties, the court and the jury. The very few minor technical problems did not impact his evidence and were rectified promptly.

[91] I listened carefully to what Mr. Henriquez had to say and how he said it. He was well-spoken, obviously quite bright, and displayed a remarkable lack of anger or rancor given what happened to him. With regard to the core substance of his evidence, I found Mr. Henriquez to be candid, frank and open about what happened that night and about his subsequent dealings with the authorities. I was impressed by this evidence of Mr. Henriquez. With regard to demeanor evidence, however, I caution myself against placing too much weight on this type of evidence given the uncertainly of a faithful connection between demeanour and truth.

[92] With regard to other parts of his evidence, I have a different opinion. I do not believe Mr. Henriquez when he denied criminal involvement with drug dealing while in Canada. His explanations – especially with regard to a lack of knowledge of a large amount of drugs found in his pocket in Toronto ‑ were fanciful, tortured and contrived. Mr. Henriquez gave false testimony, under oath, on this relevant matter, before the jury and me. I am fully aware of the seriousness of this finding because it can taint the balance of the evidence of Mr. Henriquez. This must be included as a serious factor in this assessment.

[93] In addition, Mr. Henriquez is a classic Vetrovec witness. Consideration of evidence from a Crown witness of this kind must be approached with the greatest care and caution.

[94] The circumstances giving rise to this caution include:

• Mr. Henriquez recently met Alekesji Guzhavin in the Windsor Jail and knew Mr. Guzhavin had a record for guns and violence. He went to the home of Mr. Hanan with Alekesji Guzhavin where the shooting took place. Mr. Henriquez may have had an incentive to minimize his involvement in the events leading up to the shooting;
• Mr. Henriquez had two outstanding drug trafficking charges pending against him – one case in Toronto and one case in Windsor – before he gave his two police statements in this case, which may have provided an incentive to give a statement favourable to the police;
• Mr. Henriquez repeatedly sought benefits from the police and the Crown, including asking the Crown, “What’s in it for me?” When Mr. Henriquez’ demands were not met, he refused to testify the first time this case was set for trial. Mr. Henriquez subsequently changed his mind and did testify on the second trial date;
• Mr. Henriquez has a criminal record in the United States:
  • Larceny/grand theft March 14, 2005
  • Failure to appear March 14, 2005
  • Resisting officer October 10, 2006
• Mr. Henriquez also admitted the following bad acts:
  • Striking a security officer while leaving a store with stolen clothes June 14, 2002
  • Stealing over-the-counter medication from a store for resale March 14, 2005

[95] Common sense tells me that, in light of these circumstances, there is good reason to look at Mr. Henriquez’s evidence with the greatest care and caution. I am entitled to rely on Mr. Henriquez’ evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for me to do so. Accordingly, I should look for some confirmation of Mr. Henriquez’ evidence from somebody or something other than Mr. Henriquez before I rely upon Mr. Henriquez’ evidence in deciding whether Crown counsel has proven that it was Mr. Hanan who brought the gun beyond a reasonable doubt.

[96] To be confirmatory of Mr. Henriquez’s testimony, the evidence must tend to show that Mr. Henriquez is telling the truth about who brought the gun. To be confirmatory, the evidence must give me comfort that Mr. Henriquez can be trusted when he says that Dia Hanan brought the gun.

[97] The following evidence illustrates the kind of evidence that may confirm or support Mr. Henriquez’ testimony:

• The Glock handgun found at the scene, Exhibit No. 28, contained five bullets in the magazine (Exhibit No. 1 - photo 15) and one in the chamber (Exhibit No. 1 ‑ photo 13). The magazine holds 15 bullets: Toni Brinck, CFS‑firearms. Thus, the Glock handgun, when seized, had the magazine capacity to hold an additional nine bullets.
• The body of Alekesji Guzhavin had seven bullet wounds although as many as three of the wounds may have been caused by the same bullet: Dr. Elena Tugaleva – forensic pathologist. The body of Mr. Henriquez had three bullet wounds: Dr. Mondeep Narewal, treating doctor.
• From Mr. Valley’s recording (Exhibit No. 6), nine sounds described as gunshots are heard, five in quick succession then four more with pauses between each: Murray Valley, Officer Luke Harmon, Sgt. Joe Rafuse, Officer Steve Brnardic.
• Two projectiles were recovered at the scene: Officer Orazio Mollicone. Four projectiles were recovered from the body of Alekesji Guzhavin: Dr. Elena Tugaleva, forensic pathologist. From the evidence of the treating doctor of Mr. Henriquez, there were three bullet wounds to his body: Dr. Mondeep Narewal, treating doctor. Thus, at least one projectile remains in the body of Mr. Henriquez.
• When the first responding police officers and EMS personnel arrived on the scene, Mr. Henriquez was found face down with his head toward the street and his feet toward the garage: Officers Phong Le, Randall Spratt and Maggie Young; EMS personnel Tyson Brohman and Amy Van Cowenberg. Mr. Henriquez was found toward the back end of the driveway in the area where his cut-off clothes were photographed: Exhibit No. 1 - photos 3, 4 and 33.
• The location and path of the gunshot wounds to Alekesji Guzhavin: Dr. Elena Tugaleva, forensic pathologist:
  • To the head – near the top of the head above the right ear with a path of right to left, slightly downward and slightly back to front: Exhibit No. 13 ‑ diagram 1;
  • To the right lower chest with bullet found internally in the left side of chest and a path through the liver and left lung with a slight scratch to the heart, namely from of right to left, slightly front to back: Exhibit No. 13 ‑ diagram 2;
  • To the left side of abdomen with bullet found lodged in right side of pelvic bone with a path through the small bowels from left to right, back to front and downward: Exhibit No. 13 - diagram 3;
  • To the back of the right upper leg the bullet found in left side of lower chest: Exhibit No. 13 - diagram 4;
  • To right forearm exiting same forearm slightly above entrance with a path right to left, upwards and back to front: Exhibit No. 13 - diagram 5;
  • Graze to front right upper arm: Exhibit No. 13 - diagram 5; and
  • To left upper forearm with exit on left forearm with path slightly back to front: Exhibit No. 13 - diagram 6.
• The location of the gunshot wounds to Mr. Henriquez: According to Dr. Narewal, the leader of the trauma team that treated Mr. Henriquez on December 23, 2015, three gunshot wounds were observed:
  • 1. Right side of chest; nipple level or possibly above; away from sternum;
  • 2. Close to middle of right arm pit; slightly lower than chest wound; and
  • 3. Mid-back just above nipple level; slightly higher than arm pit wound.

[98] The treating doctor was unable to identify entry or exit wounds because he is not trained to do so; Mr. Henriquez suffered spinal cord injury resulting in paralysis from his mid-chest down: Admission, Exhibit No. 26.

• The blue Jeep Liberty car found in the driveway parked behind the black Yukon SUV belonged to Denise McGregor: Exhibit No. 1 – photos 1, 41 & 41; Exhibit No. 11 – photo 1; Denise McGregor; Sgt. Tony Garro. The set of keys found under the cut-off clothes of Gregory Henriquez at the scene belonged to Denise McGregor: Exhibit No. 1 – photos 6 & 7; Denise McGregor.
• $300 in cash was found during the autopsy in the left front jeans pocket of Alekesji Guzhavin: Elena Tugaleva, forensic pathologist.

[99] In addition, consideration should be made of at least one inconsistent statement. During the evidence of Mr. Henriquez, he testified that Mr. Guzhavin fell on his back after he was shot. It was put to Mr. Henriquez that during his December 24, 2015 police statement, Mr. Henriquez said, “I never saw him drop on the ground” and “I think that Alex went down. I didn’t see it.” Mr. Henriquez testified that he did not remember saying those things; that he was heavily sedated at the time. By informal admission, the parties agreed that these two statements were made by Mr. Henriquez. They are inconsistent with his trial evidence. In consideration of this inconsistency, I take into account his explanation that he was heavily sedated at the time. The statement was taken the day after Mr. Henriquez was shot and paralyzed. It is up to me to determine what impact this inconsistency has on my assessment of the evidence of Mr. Henriquez. I give this inconsistency little weight because of the timing of the statement and the condition of Mr. Henriquez at that time.

[100] With regard to the core of the evidence of Mr. Henriquez – that he was only peripherally involved in the discussions between Mr. Guzhavin and Mr. Hanan; that Mr. Guzhavin never threatened Mr. Hanan with a gun in front of Mr. Henriquez; that Mr. Hanan did not grab a gun out of the hand of Mr. Guzhavin leading to a struggle for the gun involving Mr. Henriquez; that all was calm until he looked up to see Mr. Hanan pointing a gun at Mr. Guzhavin and then shooting him; that on seeing Mr. Hanan shooting Mr. Guzhavin, Mr. Henriquez turned and started to flee up the driveway; and that he was shot twice as he was fleeing, the last shot being in his back which knocked him face down on the driveway – I believe Mr. Henriquez.

[101] I find confirmatory evidence in a number of factors including the number of shots fired, in the pattern of the shots as recorded by the audio video tape of Mr. Valley, in the location of the gunshot wounds to both Mr. Guzhavin and to Mr. Henriquez, and in the lack of any evidence of any physical trauma to Mr. Hanan. I am particularly swayed by the evidence of the position of Mr. Henriquez when found by the first-responders: face down on the driveway with his head toward the road and his feet toward the garage at the back end of the driveway. This evidence confirms my faith in the core evidence of Mr. Henriquez that Mr. Hanan, not Mr. Guzhavin, produced the gun and shot, that there was no struggle over the gun, and that Mr. Henriquez was shot in the back as he attempted to flee toward the street.

(d) Findings

[102] Accordingly, based on the totality of the evidence and for the foregoing reasons, I make the following findings of fact:

1. I do not believe the evidence of Dia Hanan that he did not bring the gun;
2. The evidence of Dia Hanan does not raise a reasonable doubt about who brought the gun;
3. I am convinced, beyond a reasonable doubt, that Dia Hanan brought the gun.

c. How Did the Shooting Happen?

(1) Necessity

[103] I agree that resolution of the issue over how the shooting happened is relevant to the determination of a just and fit sentence. It impacts both the nature of the offence and the moral blameworthiness of the offender.

(2) Express or Implied in Verdict

[104] Again, as expressed above, the jury, by its verdict, rejected self-defence in the face of two dramatically different versions of the shooting, with only Mr. Hanan’s supporting self-defence. If the jury believed Mr. Hanan, he would have been acquitted. He was not.

[105] In my opinion, as expressed in more detail above, by its guilty verdict the jury rejected Mr. Hanan’s version of the shooting and accepted the core of Mr. Henriquez’ version.

(3) Independent Finding

[106] In the event I am incorrect in my finding above, I turn my attention to making an independent finding on the issue of how the shooting happened.

[107] As analyzed above, I reject the evidence of Mr. Hanan and accept the evidence of Mr. Henriquez on how the shooting happened.

[108] Accordingly, based on the totality of the evidence and for the foregoing reasons, I make the following findings of fact:

1. I do not believe the evidence of Dia Hanan that he was threatened twice by Mr. Guzhavin with a gun in the presence of Mr. Henriquez, that he grabbed the gun out of the hand of Mr. Guzhavin, that a struggle for the gun ensued involving Mr. Henriquez, and that the light went out and Mr. Hanan shot blindly in the darkness;
2. The evidence of Dia Hanan, as noted in paragraph 1 immediately above, does not raise a reasonable doubt about how the shooting happened;
3. I am convinced, beyond a reasonable doubt, that Dia Hanan brought the gun, that Mr. Hanan produced the gun when he and Mr. Guzhavin were talking outside the earshot of Mr. Henriquez, that Mr. Hanan then shot Mr. Guzhavin multiple times first, and that Mr. Hanan then shot Mr. Henriquez as Mr. Henriquez was attempting to flee up the driveway.

d. Was Gregory Henriquez Shot in the Back?

(1) Necessity

[109] I agree that resolution of the issue on whether Mr. Henriquez was shot in the back is relevant to the determination of a just and fit sentence. It impacts both the nature of the offence and the moral blameworthiness of the offender.

(2) Express or Implied in Verdict

[110] Again, as expressed above, the jury, by its verdict, rejected self-defence in the face of two dramatically different versions of the shooting, only one of which, Mr. Hanan’s, supported self-defence. If the jury believed Mr. Hanan, he would have been acquitted. He was not.

[111] In my opinion, as expressed in more detail above, by its guilty verdict the jury rejected Mr. Hanan’s version of the shooting and accepted the core of Mr. Henriquez’ version, including that Mr. Henriquez was shot in the back as he was attempting to flee.

(3) Independent Finding

[112] In the event I am incorrect in my finding above, I turn my attention to making an independent finding on the issue of whether Mr. Henriquez was shot in the back.

[113] As analyzed above, I reject the evidence of Mr. Hanan and accept the evidence of Mr. Henriquez on how the shooting happened including that Mr. Henriquez was shot in the back as he was attempting to flee.

[114] Mr. Hanan said he shot in the dark toward his attackers. Thus, there was no clear evidence from Mr. Hanan denying that he shot Mr. Henriquez in the back.

[115] Mr. Henriquez testified that when he saw Mr. Hanan shooting Mr. Guzhavin he turned and began to flee up the driveway toward the street. According to him, he was shot twice including once in his back which caused him to fall face down on the driveway in the direction he was moving. The first responders found Mr. Henriquez in the exact position as described in his evidence. The medical evidence established that Mr. Henriquez had three bullet wounds to his body including one in his back almost dead center. There is one bullet remaining in his body. Mr. Henriquez is paralyzed from trauma to his spine.

[116] Accordingly, based on the totality of the evidence and for the foregoing reasons, I find beyond a reasonable doubt that Mr. Henriquez was shot in the back by Mr. Hanan as Mr. Henriquez was trying to flee from the shooting.

e. Did the Shooting Cause the Paralysis to Mr. Henriquez?

[117] Although perhaps obvious and clearly uncontested if not conceded at trial, this – causation of paralysis - is an aggravating factor which was not decided by the jury verdict. Accordingly, it is incumbent for me to now decide it.

[118] Mr. Henriquez has not walked since he was shot in the back on December 23, 2015. The medical evidence confirms he was shot in the back. According to the treating doctor, Mr. Henriquez suffered a spinal cord injury resulting in paralysis from his mid-chest down: Admission, Exhibit 26. The shot to his back was at the mid-chest level.

[119] Accordingly, based on the totality of the evidence and for the foregoing reasons, I find, beyond a reasonable doubt, that the gunshot wound to the back caused the paralysis to Mr. Henriquez.

Circumstances of the Offence

[120] Mr. Hanan intentionally and unlawfully shot two people killing Alekesji Guzhavin and paralyzing Gregory Henriquez for life. He did not shoot in lawful self-defence. He shot Mr. Guzhavin multiple times with a gun Mr. Hanan produced, for no apparent reason, while speaking with Mr. Guzhavin. Mr. Hanan then shot Mr. Henriquez in the back as Mr. Henriquez was attempting to flee. He shot without an intent to kill. He shot with a handgun that was illegal for him to possess.

Circumstances of the Offender

[121] Mr. Hanan now is 36 years old. At the time of the offences he was 32 years old. He was born in Jordan and is in Canada as a Convention refugee. He has a stable marriage and three young children, ages 2, 5 and 6. His upbringing was marked by movement, loss and separation. His two older brothers are no longer in his life: one is dead and the other was deported.

[122] Mr. Hanan is one of four children born in Jordan from the marriage of his parents. That marriage ended and, to avoid losing her children pursuant to the laws of Jordan, his mother took her four children to the United States in 1989, when Mr. Hanan was 6 years old. While in the United States, his mother married and had two more sons. According to Mr. Hanan, his stepfather was physically abusive to him. That marital relationship ended when Mr. Hanan’s stepfather abandoned the family and left the United States. In 1997, Mr. Hanan’s mother took her six children and moved to Canada where they were granted Convention refugee status. Mr. Hanan has been here ever since.

[123] In or around 1998, when Mr. Hanan was 15 years old, he watched his older brother being stabbed to death at a local park. This had a significant impact on Mr. Hanan. His older brother was at the park because Mr. Hanan had been bullied at that park the day before. As a result, Mr. Hanan continues to shoulder feelings of guilt and responsibility. This tragic event changed Mr. Hanan. According to Mr. Hanan, he felt “mad at the world” and started associating with the “wrong crowd.” A period of eight plus years and ten criminal convictions followed. In addition, according to Mr. Hanan, he was harassed and subject to abuse and racial slurs by the police during this time.

[124] Mr. Hanan then met his wife when he was about 27 years old. By all accounts, the Hanan household is stable and positive. Mr. Hanan’s wife describes her husband as “very caring and faithful.” He is a good father and participates with the raising of his three children. In addition, he enjoys a close relationship with his mother and two younger brothers who live in the same duplex house.

[125] Mr. Hanan’s formal education is limited. He does not have a high school diploma. Undoubtedly, the family movement with attendant changes in language and culture had a negative impact on any formal schooling.

[126] Mr. Hanan’s work history is intermittent and lacks any extended traditional employment. He reports having a strong work ethic. He says he has worked as a labourer and landscaper. He reports owning a renovation company. His wife expressed some frustration over Mr. Hanan’s attitude toward work and his apparent difficulty maintaining employment. According to her, Mr. Hanan has issues with being told what to do. This attitude was echoed by his friend, Mr. Sheiti, who noted problems when Mr. Hanan disagreed with an employer. Both suggest Mr. Hanan is more suited to self-employment, which is what Mr. Hanan would like to do, open his own landscaping business with his brothers.

[127] Most recently, especially during the period in which Mr. Hanan was subject to stringent bail conditions, Mr. Hanan was the primary care-giver to his children. His wife works as a server in an old age home. By all accounts, Mr. Hanan is an excellent parent.

[128] Although denying any gambling problem, Mr. Hanan does admit to earning money through legal gambling. This has been, however, a source of tension in the marriage. According to his wife, Mr. Hanan has two sets of friends: those who are family oriented and those from his gambling activity. She does not approve of the latter group.

[129] Mr. Hanan has no issues with abuse of either alcohol or drugs.

[130] The pre-sentence report generally is positive.

[131] Mr. Hanan has the following criminal history, all in Windsor or Chatham‑Kent, Ontario:

• February 7, 2001 possession under 1 day secure custody (Youth) (35 days time served)
• April 26, 2001 assault with weapon 7 months secure custody (Youth) & probation
• July 4, 2003 public mischief 1 day jail (62 days pre-sentence custody)
• February 20, 2004 unlawfully in $300 fine (60 days pre-dwelling house sentence custody)
• December 16, 2005 unauthorized possession $300 fine prohibited or restricted weapon
• October, 2, 2007 breach undertaking $100 fine (3 days pre-sentence custody)
• February 14, 2008 breach recognizance $125 fine x 2 x 2
• October 28, 2009 breach recognizance 1 day jail x 2 (15 x x2 days pre-sentence custody)

[132] Mr. Hanan has current immigration problems. He was ordered deported on May 7, 2019 on the grounds of serious criminality. That order was appealed on the basis of humanitarian and compassionate grounds to warrant special relief. The removal order was stayed pending resolution of this case.

Principles of Law - Sentencing

1. Statutory Penalties

[133] The statutory penalties for the crimes for which Mr. Hanan stands convicted are as follows:

• Manslaughter contrary to s. 234 of the Criminal Code of Canada: where a firearm is used in the commission of the offence, imprisonment for life with a minimum term of imprisonment of four years: s. 236 (a);
• Discharge of a Firearm with Intent to Wound contrary to s. 244(1) of the Criminal Code of Canada: where a restricted firearm is used in the commission of the offence, imprisonment not exceeding 14 years with a minimum term of imprisonment of five years: s. 244(2) (a)(i); and
• Possession of a Loaded Restricted Firearm contrary to s. 95(1) of the Criminal Code of Canada: imprisonment not exceeding 10 years: s. 95(2) (a).

2. Consecutive or Concurrent – Totality Principle

[134] When a court sentences an offender to prison for more than one offence, the court must determine whether any custodial sentences imposed should be served consecutively – each term added to the other, or concurrently – each term served at the same time.

[135] Consecutive sentences shall be considered when “the offences do not arise out of the same event or series of events”: s. 718.3(4)(b)(i) of the Criminal Code of Canada.

[136] In making the consecutive/concurrent decision, the court must apply certain statutory principles. The totality principle provides that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”: s. 718.2(c) of the Criminal Code of Canada.

[137] The approach for a sentencing judge when called upon to sentence on multiple offences is found in the Ontario Court of Appeal decision in R. v. Jewell, 1995 ONCA 1897, [1995] O.J. No. 2213, at para. 27:

[T]he appropriate approach … is to first, identify the gravamen of the conduct giving rise to all of the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

3. Sentencing Ranges – Parity Principle

[138] The parity principle, found at s. 718.2(b) of the Criminal Code of Canada, provides: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[139] “The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.” R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58. In the sentencing determination effort, courts have developed sentencing ranges to assist with compliance with the parity principle: Lacasse, at para. 2. Although useful, ranges are guidelines and are not meant to be fixed or inflexible: Lacasse, at para. 60. As stated by Moldaver, J.A. (as he was then) in R. v. D.D. (2002), 2002 ONCA 44915, 58 O.R. (3d) 788 (C.A.), at para. 33:

[T]he ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[140] Because sentencing is meant to be a highly individualized process, there will be cases where the particular circumstances of the offence or of the offender call for a sentence above or below the normal sentencing range: R. v. Suter, 2018 SCC 34, at para. 4. Such sentences will still be fit as long as the sentence meets the sentencing principles and objectives of the statutory sections and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender: Suter, at para. 27.

[141] With regard to the offence of discharge of a firearm with intent to wound, both counsel agree that the general sentencing range for this serious firearm offence is imprisonment for 7 to 11 years: R. v. Bellissimo, 2009 ONCA 49, at para. 3; R. v. Jefferson, 2014 ONCA 434, at para. 14. The principles of denunciation and deterrence are of primary importance for serious firearm offences: Bellissimo, at para. 4.

[142] With regard to the manslaughter offence, it is impossible to identify an agreed sentencing range because of the wide range of circumstances the crime encompasses: R. v. Hermiz, 2007 ONSC 15890, [2007] O.J. No. 1589, at para. 11 (S.Ct.). My task, difficult as it may be, is to impose a sentence that fits the facts and circumstances of this particular case and this particular offender.

4. Statutory Principles

[143] The Criminal Code of Canada statutes I review below are those in effect at the time of the crime:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

Sentence

[144] The offences before me now were very serious crimes of violence committed with a handgun. In my view, the sentence must reflect the gravity of the offences which involved the death of one person and the lifetime paralysis of another. Mr. Henriquez, the surviving victim, continues to lead a life none of us would want. The principles of denunciation and deterrence are of great prominence for this offence.

Mitigating factors

[145] Good Character – For the past 10 years, Mr. Hanan, to his credit, has been a loving and committed husband and father. He also is a good neighbour and friend as underscored by the letters filed. This is an important mitigating factor because it demonstrates his responsibility and conformity to the rules of society.

[146] Supportive Family – Mr. Hanan’s wife, mother, and brothers have been supportive of him throughout this court process. This is important because it assists in Mr. Hanan’s rehabilitation.

[147] Disadvantaged Background – Mr. Hanan had a difficult early life moving to different countries with different languages and cultures. He also received violence from a stepfather. And, most influentially, Mr. Hanan experienced the horrifying vision of the violent death of his older brother which appears to have led to an extended period of anti-social behaviour. This difficult early life shall be considered by me in assessing the appropriate and fit sentence.

[148] Self-Rehabilitation Efforts – While incarcerated awaiting trial and then sentencing, Mr. Hanan availed himself of numerous rehabilitation programs at the local detention center. Such efforts to improve are always mitigating because they show a commitment toward rehabilitation. They shall be so considered here.

[149] Dated Criminal Record – Most often a dated criminal record, or a criminal record with significant gaps in offending, lessen its impact as an aggravating factor. Although as articulated below, the criminal record shall be considered as an aggravating factor, the gap in the record shall also be considered as a mitigating factor because it shows an ability to conform to society’s norms for a substantial period of time. Between Mr. Hanan’s last criminal conviction and the shooting was a span of a little over six years. It is clear that the overriding cause of this change was the entry of Mr. Hanan’s wife into his life. This gap, coupled with his confirmed positive family life, shows he can lead a law-abiding life and shall be so considered.

[150] Collateral Consequences – Risk of Deportation – Mr. Hanan has been ordered deported. The deportation order was entered on the grounds of serious criminality unrelated to this case. Said order was stayed by the immigration appeals tribunal pending resolution of this case. The issue before that tribunal concerns special relief based on humanitarian and compassionate grounds.

[151] Although risk of deportation often can be a factor to consider in imposing a sentence, when there are multiple counts that include serious minimum prison terms, it is impossible to consider the risk of deportation without interfering with a just and fit sentence: R. v. B(R.), 2013 ONCA 36, at paras. 23-27. I decline to do so.

Aggravating Factors

[152] Significant Impact on Victim – Section 718.2(a)(iii.1) of the Criminal Code of Canada provides: “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation” shall be deemed an aggravating circumstance.

[153] Here, the offence had, and continues to have, a devastating and continuing impact on Mr. Henriquez who was permanently paralyzed from being shot by Mr. Hanan. Mr. Henriquez lives with the consequences of Mr. Hanan’s act every minute of every day. He cannot walk. He cannot function independently. He cannot even control his bowels as became evident during his trial testimony. That fateful evening dramatically and negatively changed the life of Mr. Henriquez forever. This is a serious aggravating circumstance.

[154] By these words I do not wish to undermine the impact of the death of Alekesji Guzhavin. There is a void in his family from the conduct of Mr. Hanan. Mr. Guzhavin’s daughter will never know her father; will never have his love and comfort. This too is a serious aggravating circumstance.

[155] Multiple Victims – The fact that there are multiple victims from the shooting by Mr. Hanan is an aggravating factor and shall be so considered. It compounds his culpability.

[156] Residential Neighborhood – The shooting took place in a quiet residential neighborhood. This is an aggravating circumstance because it heightened the risk to innocent persons.

[157] Use of Firearm – Mr. Hanan possessed and fired an unlicensed handgun that was illegal for him to possess. Handgun violence poses grave dangers to this community and to this country. This is an aggravating factor.

[158] Previous Convictions – Mr. Hanan has numerous prior criminal convictions including a very serious crime of violence – assault with weapon, and a weapons offence. For a span of eight years, between the ages of 17 and 26 in the life of Mr. Hanan, he committed ten separate crimes. Then there was a span of time – a little more than six years – before Mr. Hanan unlawfully shot two persons. The criminal history of Mr. Hanan is lessened by its gap but it still remains as an aggravating factor.

[159] Lack of Remorse – Although the showing of remorse is a mitigating factor, a lack of remorse can never be used as a aggravating factor. It shall not be so considered here. You vow an appeal and stand on your claim of self defence. You have the right to do so.

[160] Many people have their own ideas on what self-defence is or should be. Under our law, however, self-defence is limited and its rules exact. Life in this country is sacred. For one person to take another person’s life in the name of self-defence, the law must be followed or there is no lawful self-defence. You had a trial by a jury consisting of citizens of this community. They heard you. They also heard what the law is on self-defence. They specifically rejected your position beyond a reasonable doubt. You have just heard my views of your version. You will now hear your sentence.

[161] Mr. Hanan, you unlawfully and intentionally ended the life of one person and forever crippled the life of another. Because of you, one is dead and the other is seriously and permanently disabled. These are very serious offences.

[162] This sentence is not to exact revenge for the horrific violence used against your fellow human beings. The process must never become inflamed. The sentence must be based on reason, legal principles, and compatibility with other cases.

[163] However, given the nature of the crimes, the sentence must express the societal abhorrence of conduct of this kind. It must be of sufficient severity that it will protect the community. It must communicate society’s condemnation of this type of conduct. You, the offender, must be called to account.

[164] I intend to give you a sentence that properly addresses the principles of denunciation, deterrence, both personal and general, and community safety.

[165] The appropriate and fit global sentence for you in this manslaughter/shooting case, taking into account all the circumstances including those in mitigation and those in aggravation, is 15 years imprisonment.

[166] You are entitled to a 23 months credit for pre-sentence custody and a six-month reduction for stringent bail conditions. Combining the two equals a reduction of 29 months, or 2 years and 5 months.

[167] Accordingly, you are hereby sentenced to a global term of imprisonment for 12 years and 7 months as follows:

• As to Count 1, Manslaughter: 12 years and 7 months prison;
• As to Count 3, Possession of Firearm: 3 years concurrent [8]; and
• As to Count 4, Discharge of Firearm: 10 years concurrent.

[168] Pursuant to s. 109(1) (a) of the Criminal Code of Canada, you are hereby prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.

[169] With regard to a DNA sample order pursuant to s. 487.051(1) of the Criminal Code of Canada, the offence of manslaughter is a primary designated offence making such an order mandatory. Accordingly, you are hereby ordered to provide a sample of your bodily substance for the purpose of forensic DNA analysis.

[170] I decline to order a victim fine surcharge pursuant to s. 737 of the Criminal Code of Canada for the following reasons: you have just received a significant jail term; you have no ability to earn money while imprisoned; you have the responsibility of a family; and you have serious deportation problems.

“original signed and released by Munroe J. ”

Kirk W. Munroe Justice

Released Orally and in Writing: March 2, 2020

COURT FILE NO.: CR-18-4139 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DIA EDDIN HANAN Offender REASONS FOR SENTENCE Munroe J. Released: Orally and in Writing on March 2, 2020

Footnotes

[1] During submissions on the morning of the first day, counsel for Mr. Hanan questioned certain statements attributed to Mr. Sbeiti found on page 7 of the PSR. Counsel advised that he intended to speak with Mr. Sbeiti. Counsel never re-raised this issue.

[2] Unsuccessful efforts were made to secure a victim impact statement from Gregory Henriquez.

[3] Approximately one-half of these letters were originally sent to the immigration tribunal regarding Mr. Hanan’s appeal of his deportation order. Although this court, the current recipient of these letters, is not the original recipient, I consider them for what they are: character letters.

[4] By their verdicts, the jury obviously rejected this evidence.

[5] The written defence position was provided to the court by defence counsel. It was included in the court’s final instructions to the jury and was made Ex. 52.

[6] Pursuant to ss. 724(3) (b) and (e) of the Criminal Code of Canada, I apply the standard trial procedure to fact finding after a jury verdict.

[7] This conviction was contrary to s. 140(1) (a) of the Criminal Code of Canada which provides: “Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by … making a false statement that accuses some other person of having committed an offence ….”

[8] I disagree with counsel that the sentence on this count should be stayed pursuant to the principles in R. v. Kienapple, 1974 SCC 14, [1975] 1 S.C.R. 729. This offence has distinct additional elements not found in either of the two other offences.