COURT FILE NO.: CR-18-1225-00 DATE: 20200605

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. Calsavara and J. Vlacic, for the Crown

- and -

ELIAS GIBB R. Warren and D. Reeve, for the defence

HEARD: March 4, 2020 at Brampton

REASONS FOR SENTENCE

André J.

[1] A jury convicted Mr. Gibb on June 26, 2019, of second degree murder in the death of Raimzhan Tokhtabayev on June 29, 2017. The Crown seeks a sentence of life imprisonment with a fifteen-year period of parole ineligibility. Mr. Gibb’s counsel, on the other hand, seeks a period of parole ineligibility in the range of twelve to fourteen years.

BACKGROUND FACTS

[2] During the evening of June 29, 2017, Mr. Gibb and a small group of friends went to a Mississauga strip club. The evening was uneventful until a verbal altercation ensued between one of Mr. Gibb’s friends and another male outside the club. Mr. Raimzhan Tokhtabayev was among a group of young men who had visited the club following a twelve-hour shift working as roofers. The club’s surveillance video captured what happened and the fatal shooting afterwards.

[3] The verbal altercation escalated to a shoving match between Mr. Tokhtabayev and one of Mr. Gibb’s friends. The surveillance video captured images of Mr. Gibb on three separate occasions exposing a gun tucked in his waist. At one point, Mr. Gibb’s party decided to leave the area in a car driven by one of Mr. Gibb’s friends. Before the car drove out of the club’s parking lot, Mr. Gibb is seen standing next to the car. The deceased approached the car and came within a short distance of Mr. Gibb. Mr. Gibb testified that Mr. Tokhtabayev tried to rob him of an expensive pendant he carried around his neck. At one point, Mr. Gibb held a gun in his hand and pointed it at Mr. Tokhtabayev. Mr. Gibb then fired a number of gunshots at Mr. Tokhtabayev, five of which struck the deceased. Mr. Gibb continued firing his gun even after Mr. Tokhtabayev had fallen in front of his friend’s car. Immediately following the shooting, Mr. Gibb shouted to the driver: “Go, go, go!” The vehicle sped away. Mr. Tokhtabayev had no vital signs when medical personnel arrived at the scene within minutes following the shooting. He died sometime later at a nearby hospital. The police arrested Mr. Gibb on August 24, 2017.

CRIMINAL RECORD

[4] The 23-year old Mr. Gibb has a youth record. He was most recently convicted of armed robbery on March 9, 2017 and was placed on probation for 18 months. The court also prohibited Mr. Gibb from having any weapons in his possession.

[5] Other items on his youth criminal record include the following:

2015-03-12 1 x Robbery sec 343 CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation concurrent to term of even date.

2015-03-12 1 x Disguise with Intent sec 351(2) CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation concurrent to #1.

2015-03-12 1 x Poss of a Firearm, Prohibited or Restricted Weapon obtained by Crime sec 96(1) CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation concurrent to #1.

2015-03-12 1 x Carrying Concealed Weapon sec 90(1) CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation.

2015-03-12 1 x Fail to Comply with Recognizance sec 145(3) CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation concurrent to #1.

2015-03-12 1 x Fail to Comply with Recognizance sec 145(3) CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation concurrent to #1.

2015-03-12 1 x Unauthorized Poss of a Firearm sec 91(1) CC 4 months custody and supervision order and 2 months custody and community supervision and 12 months probation concurrent to term of even date.

VICTIM IMPACT STATEMENT

[6] Angelina Lukan, Mr. Tokhtabayev’s mother, filed a victim impact statement. She wrote that her son “was our support, always trying to help” and lamented that: “I will forever be deprived of the opportunity help from him in my old age.” In a separate letter, Ms. Lukan wrote that her son’s death left her depressed for a long time.

GUN VIOLENCE IN PEEL REGION

[7] The Crown tendered a report of Nick Sachdeva, the Assistant Manager of Analytics for Peel Regional Police Force (PRPF), who provided statistics concerning the prevalence of gun violence within Peel Region for the years 2014 to 2019.

[8] It provides the following statistics for the number of homicides investigated by the PRPF during this period:

In 2014 9 homicides (2 being gunshot homicides) In 2015 16 homicides (0 being gunshot homicides) In 2016 11 homicides (7 being gunshot homicides) In 2017 16 homicides (9 being gunshot homicides) In 2018 25 homicides (10 being gunshot homicides) In 2019 31 homicides (12 being gunshot homicides)

[9] The PRPF also provided information that the gun fired by Mr. Gibb was used in two other shooting incidents on August 3, 2017 and August 15, 2017. However, they stopped short of linking Mr. Gibb to these shooting incidents.

JURY RECOMMENDATION

[10] Nine jurors recommended ten years of parole ineligibility; one juror recommended a twelve-year period of parole ineligibility; one juror recommended a thirteen-year period of parole ineligibility and one juror recommended a fifteen-year period of parole ineligibility.

ANALYSIS

[11] Section 718.1 of the Criminal Code, R.S.C., 1985 c. C-46, provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Determining a proportionate sentence necessarily involves an assessment of the aggravating and mitigating factors in any case. This analysis underscores the fact that sentencing is an individualized process and must reflect the circumstances of each case.

[12] Section 745.4 of the Code provides that:

Ineligibility for parole

Subject to section 745.5, at the time of the sentencing under section 745 of the Code an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

AGGRAVATING FACTORS

[13] The aggravating factors in this case are as follows:

(1) Mr. Gibb fatally shot an unarmed man who posed no threat to him; (2) Mr. Gibb continued firing even while Mr. Tokhtabayev was falling to the ground; (3) Mr. Gibb has a criminal record with numerous convictions for violence and breach of court orders; (4) Mr. Gibb had earlier displayed the gun at the scene, before the fatal shooting; (5) In convicting Mr. Gibb, the jury rejected his defence of provocation; (6) Gun violence and the number of persons killed in Peel as a result has significantly increased between 2014 and 2019.

CASES RELIED ON BY THE CROWN

[14] In R. v. Hayles-Wilson, 2018 ONSC 4337, [2018] O.J. No. 3758, at para. 22, Code J. noted that cases involving parole ineligibility in the range of 18-22 years involved recidivists who committed dangerous public offences with multiple victims or gang-related motives. He held at para. 23 that other cases fall into a lesser category where the appropriate range of parole ineligibility is fourteen to sixteen years. Justice Code held that in the circumstances of the case, the appropriate period of parole ineligibility was fifteen years. He summarized those circumstances at para. 7 as follows:

a) there was a plan to murder the victim and the accused carried out the plan; b) the accused remained at large for seven months after the murder; c) one other person was hit and wounded by one of the bullets fired by the accused; d) there was a long-standing grievance, that predated the fatal shooting, between the accused, his associates, and that victim; e) the victim was not armed when the accused fatally shot him; f) the accused shot the victim eight times at close range in the area of the victim’s vital organs.

[15] In R. v. D.S., 2017 ONCA 38, Watt J.A. upheld a period of parole ineligibility of fourteen years on an accused who had been convicted by a jury of second-degree murder. The accused had fatally shot the victim in front of a bus shelter within a few feet of several witnesses some of whom were children. Before the shooting the accused had been involved with members of the victim’s gang while in detention. The accused was eighteen years old at the time of the shooting and had an extensive criminal record. Watt J.A. concluded at para. 156:

… the enhanced period of parole ineligibility imposed here falls within, perhaps even slightly below, the range of parole ineligibility orders in cases such as this. A youth, armed with an illegal handgun, in breach of not one but two firearm prohibitions, ready to shoot it out on a public thoroughfare in the presence of innocent bystanders, including two pre-schoolers, all to vindicate an inflated sense of self-worth. In a city plagued by gun violence. End of story. Res ipsa loquitur.

[16] In R. v. Danvers, [2005] O.J. No. 3532, the Court of Appeal reduced a parole ineligibility period of eighteen years to one of fifteen years imposed on an offender who had fatally shot a nightclub security guard who had asked him to leave the premises. The Court of Appeal noted at para. 77 that:

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.

[17] In R. v. Gale, 2019 ONCA 519, [2019] O.J. No. 3458, the Court of Appeal dismissed an appeal of a sentence for second degree murder where the trial judge imposed a fifteen-year period of parole ineligibility, despite the jury’s recommendation of ten years. The court noted at para. 19 that:

The trial judge applied the correct legal framework for considering whether to reject a jury recommendation on parole ineligibility, and gave cogent reasons for his conclusion. We do not agree that he failed to explain his decision. He held that the recommendation was “totally unrealistic”. He made it clear that it would be contrary to the principles of sentencing to impose a 10 year parole ineligibility period in the circumstances of a domestic homicide committed with a gun in the couple’s home, where the accused has attempted to get rid of the body and then lied to the victim’s family about the victim’s disappearance, and where there has been no mitigating guilty plea. In his view, 15 years of parole ineligibility was required. We would not interfere with the reasonable decision arrived at by the trial judge, which was for him to have made.

[18] Mr. Warren submits that the following mitigating factors apply:

(1) Mr. Gibb has expressed great remorse by apologizing, in open court, to the family of Mr. Tokhtabayev and to his family; (2) Mr. Gibb has had a difficult childhood and never had the benefit of being nurtured by a father figure; (3) Mr. Gibb enjoys the support of his mother, sister and friends evidenced by the letters of support filed on his behalf; (4) Mr. Gibb is a youthful offender who has great prospects for rehabilitation; (5) Mr. Gibb has completed high school and one semester at George Brown College.

[19] Mr. Warren takes the position that the facts in the cases relied upon by the Crown are more egregious than that in this case and therefore not applicable. Instead, he relies on other cases the most important of which are as follows:

[20] In R. v. Shropshire, [1995] 4 S.C.R. 227, a trial judge sentenced an offender who had pleaded guilty to second degree murder to life imprisonment with a parole ineligibility of twelve years. On appeal, the Court of Appeal reduced the period of parole ineligibility to ten years. In restoring the trial judge’s decision regarding the period of parole ineligibility, the Supreme Court of Canada noted at para. 27:

… as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[21] The court noted further at para. 29 that:

Section 742(b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 744". In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual".

[22] In R. v. Monney, 2016 ONSC 1007, Clark J. sentenced two members of a street gang who had shot the victim to death outside an apartment building to life imprisonment with a period of parole ineligibility of fifteen years, after a jury convicted them of second degree murder. In rejecting the Crown’s submission that the period of parole ineligibility should be twenty-five years; the court noted at para. 118 that:

On the other hand, notwithstanding their profoundly antisocial lifestyle up to this point, and the gravity of the present crime, both of these offenders are youthful. That is a factor that I must take into account: Grant, at para.173; Frenette, at para. 12. Mr. Abdulle was 18 when he committed this offence; Mr. Monney was 21. While I am not optimistic concerning their prospects for rehabilitation, I am not convinced that rehabilitation is entirely beyond the pale.

[23] In R. v. Zekarias, [2014] O.J. No. 6106, Doherty J.A. reduced a period of parole ineligibility of fifteen years imposed on an accused who had been convicted of second degree murder to twelve years. A jury had convicted the appellant of fatally shooting a bouncer after rejecting his testimony that he had not intended to kill or harm anyone. At para. 45, Doherty J.A. noted the extenuating factors in the case which included the fact that the appellant had a licence for the gun, was 22 years old at the time of the offence, had no criminal record, strong family support and good prospects for rehabilitation.

ANALYSIS

[24] Section 745.5 sets out the following factors to determine the period of parole ineligibility for an offender convicted of second degree murder:

(1) the character of the offender; (2) the nature of the offence; (3) the circumstances of the offence; and (4) the jury’s recommendation.

Character of the Offender

[25] Mr. Gibb was a drug trafficker at the time of the murder and always carried a firearm for protection. He led a life, as the trial evidence revealed, of trafficking drugs, consuming alcohol and hanging out with acquaintances. By the time of the murder, he had been convicted of a number of offences involving violence and at least one count of breach of a court order. He was in violation of a court order when he murdered Mr. Tokhtabayev.

[26] That said, Mr. Gibb has been raised by a single mother who likely tried to compensate in terms of protecting her son, because of the absence of a father figure in his life. He is supported by his mother and sister and by a couple of family friends who have known him for a long time. I am prepared to find as a fact that Mr. Gibb is indeed remorseful and deeply regrets his actions on the date of the murder.

Nature of the Offence

[27] In many respects, this was a senseless murder. It could simply have been avoided had Mr. Gibb entered the vehicle and left the scene to avoid further confrontation with the argumentative Mr. Tokhtabayev. Mr. Tokhtabayev was not armed and posed no danger to anyone. Nothing he did that evening justified his murder.

Circumstances of the Offence

[28] I have already referred to the circumstances of the offence in the above section. It involved the deadly use of a firearm in circumstances where the dispute between the two groups could easily have been resolved with a handshake. Ironically, there was a handshake between two members of the opposing camps which should have resolved the dispute. It did not. Rather, it led to the use of deadly force.

The Jury’s Recommendation

[29] Nine jurors recommended a period of parole ineligibility of ten years, while the remaining three recommended twelve, thirteen and fifteen years of parole ineligibility.

[30] I am unable to accede to the wishes of the nine jurors regarding parole ineligibility in this case because of the following factors:

a) the senseless nature of the killing; b) the number of shots that struck the victim; c) Mr. Gibb continued firing even while the victim was falling to the ground; d) Mr. Gibb’s criminal record; and e) the scourge of gun violence in Peel Region.

[31] What is the appropriate period of parole ineligibility in this case having regard to the factors set out in s. 745.5 of the Code? While, as noted in Monney, that I am not convinced that rehabilitation, based on Mr. Gibb’s youth, his remorse and family support, is not “beyond the pale”, in my view, general deterrence and denunciation are of paramount importance. Despite the Covid-19 pandemic that cast a wide swath of death and destruction worldwide, it has not led, according to anecdotal reports, to a decrease in gun violence in Toronto and the Peel Region. It is unfortunately, still necessary to send a strong message to like minded individuals that those who resort to gun violence to resolve petty disputes will pay a heavy price for their actions.

Covid-19

[32] I earlier alluded to the grave impact of Covid-19 worldwide. The impact has also been felt in custodial institutions where the enhanced risk of infection remains despite the efforts of the Ontario authorities to lessen the impact of the virus in facilities where mitigatory measures to blunt the impact of the virus such as social distancing, the wearing of masks at all times are not feasible. Indeed, many sentencing courts have taken the impact of Covid-19 into account in sentencing offenders: see R. v. O.K., 2020 ONCJ 189; R. v. Kandhai, 2020 ONSC 1611; R. v. Laurin, (unreported) OCJ dated March 16, 2020 (noted in O.K., at para. 34).

[33] However, in R. v. Morgan, 2020 ONCA 279, an appellant sought a one-third reduction of his sentence on account of the risks and limitations he experienced at the Central North Correctional Centre on account of Covid-19. The Court of Appeal concluded, at para. 9, that the appellant’s position fell “into the category of collateral consequences for sentencing purposes”. It agreed with the observation of Moldaver J. in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 56 that:

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[34] The same principle applies in this case. The potential effects of Covid-19, while a factor in the determination of the issue of parole ineligibility, should not be used to reduce it to a point where it becomes disproportionate to the offence based on Mr. Gibb’s moral blameworthiness.

[35] I am also mindful of the fact that enhanced pretrial credit, sanctioned under s. 719(3.1) of the Code, does not apply to sentences of life imprisonment and accordingly, may not reduce the period of parole ineligibility on account of pre-sentence custody: see R. v. Ledesma, 2019 ABQB 204, at para. 50; R. v. Ryan, 2015 ABCA 286, at para. 23 and R. v. Guignard, 2008 ABQB 283. This is because, as noted in Ryan at para. 23 and Ledesma, at para. 53, “Parliament has provided that the entire time spent in custody since arrested is counted by corrections authorities as part of the ineligibility period imposed after trial: s. 746(a) of the Code.”

[36] That said, Mr. Gibb’s custody going forward will be more onerous given the restrictions imposed because of Covid-19 and the persistent fear of infection in an institution where social distancing is virtually impossible. These include a cessation of personal visits and possible restrictions on access to remedial programs which are important to an accused’s rehabilitation while in custody.

[37] I agree with Mr. Warren that the facts in Hayles-Wilson, D.S. and Gale are more egregious than that in this case. Furthermore, cases such as D.S. and Hayles-Wilson involved gang-related gun violence which, pursuant to s. 718.2(a)(iv) is statutorily aggravating. In my view, a period of parole ineligibility of fifteen years does not adequately take into consideration the mitigating factors which I have already outlined.

[38] On the other hand, the accused in Shropshire pleaded guilty to secondary murder while the accused in Zekarias was a first time offender and licenced gun owner. To that extent, the period of parole ineligibility in this case should be greater than that in these two cases.

CONCLUSION

[39] For all the above reasons, I conclude that the period of parole ineligibility in this case should be thirteen years.

[40] Accordingly, I sentence Mr. Gibb to life imprisonment with a period of parole ineligibility of thirteen years.

ANCILLARY ORDERS

[41] There will be a DNA order, based on the primary ground.

[42] I thank all counsel for their assistance in this matter.

André J. Released: June 5, 2020