COURT FILE NO.: 17-RM-2314
DATE: 20200131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LIBAN GURE
Defendant
Lia Bramwell/Jon Fuller, for the Crown
Gary Barnes, counsel for the Defendant
RESTRICTION ON PUBLICATION
Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young offender as having been dealt with under this Act. This decision complies with this restriction so that it can be published.
REASONS FOR sentence
Beaudoin J.
[1] On, September 12, 2019, I found Liban Gure (“Mr. Gure”) guilty of manslaughter in the death of Ahmed Afrah (“Mr. Afrah”) pursuant to s. 222(5)(c) of the Criminal Code.
The Facts
[2] After trial, I made these findings of fact. Mr. Afrah was summoned by Mr. Gure to an apartment on MacLaren Street to settle a $400 drug debt owed to Mr. Gure. Mr. Afrah was lured to that location by J.B., a young offender. J.B was acting on Mr. Gure’s behalf. A video camera captured an image of an unsuspecting Mr. Afrah entering the elevator to the sixteenth floor.
[3] Shortly after his arrival, Mr. Afrah was confronted by Mr. Gure, who argued with him in the bathroom and assaulted him. Mr. Gure further participated in an assault on Mr. Afrah in the hallway along with two young offenders, N.D.A. and J.B. Mr. Afrah was kicked, punched and stomped on.
[4] Mr. Afrah tried to escape through the unit’s hallway door but was prevented from doing so by N.D.A. and J.B., who continued to assault him. A visibly injured Afrah was brought into the living room by J.B., made to sit down, and prevented from leaving by both Mr. Gure and J.B.
[5] J.B. searched for something to tie Mr. Afrah up. Duct tape was found. Mr. Afrah panicked, ignored any attempts to calm him down, and, fearing further non-trivial bodily harm, he sought the only other possible escape from the apartment, the balcony. He was pursued by J.B. Even after Mr. Afrah had managed to get to the relative safety of the neighboring balcony, J.B. tried to follow him through the hole at the top of the divider on the balcony. Mr. Afrah sought further safety by lowering himself to a lower balcony but he was unsuccessful. He fell sixteen stories to his death.
[6] I concluded that the actions of Mr. Gure and J.B. were significant contributing causes of Mr. Afrah’s death. Mr. Gure’s assault on Mr. Afrah in the bathroom; Mr Afrah’s attempt to escape that assault; the further beating by N.D.A., J.B., and Mr. Gure in the hallway to prevent that escape; and Mr. Afrah’s forcible confinement in the dining room all caused Mr. Afrah to fear that he would be the victim of further bodily harm that was neither trivial nor transient. There were no intervening causes or independent acts to interrupt the chain of legal causation. Mr. Afrah died within 44 minutes of his arrival at the apartment.
[7] I concluded that J.B. was not acting independently of Mr. Gure when he pursued Mr. Afrah onto the balcony. J.B. looked up to Mr. Gure. I was satisfied that Mr. Gure and J.B. had a working relationship selling crack cocaine. J.B. delivered Mr. Afrah to his fateful meeting with Mr. Gure. Mr. Gure could have let Mr. Afrah leave at any time after the assault in the bathroom. Mr. Gure was not prepared to do so until he had made a satisfactory arrangement for the repayment of his drug debt.
[8] I concluded that Mr. Gure triggered the chain of events and that they were not interrupted by the actions of J.B. or by anything else. As Mr. Gure himself ruefully acknowledged, “Why did I let it get so far out of hand?”
Victim Impact Statement
[9] Mariam Asalow is Ahmed Afrah’s mother. She is a refugee from Lebanon. She came to Canada as a single mother of two boys. She worked as a cleaner and a babysitter. She writes that she lost Ahmed at an age when he was going to make something of himself. She described him “like a tree giving flowers, then he disappeared.” She cries every night and misses him very much.
[10] She describes her son as having a good heart. He supported everyone in their building, and he was a very caring person. Ahmed never raised his voice to her; he was very obedient and respectful.
[11] She had a dream that he would be someone in Canada and he had this dream too. As a result of his death, she is in a lot of pain, she has lost her appetite, and she is no longer able to work full time. She says she has developed cataracts and her doctor has told her that it is early for her and that excessive crying and her trauma have caused her eye problems to progress. She is expecting to have surgery on her eyes within the next 6 months. She describes Ahmed as her sunshine and her light.
Pre-Sentence Report
Mr. Gure’s criminal record
[12] Mr. Gure was convicted of two counts of robbery, contrary to s. 343 of the Criminal Code, on December 15, 2006 for which he received a four-month conditional sentence followed by 12 months probation and 100 hours of community service work.
[13] After missing some initial appointments, Mr. Gure eventually completed his 100 hours of community service work. However, he left the country for a period without notifying his probation officer.
[14] In 2015, he was convicted of taking a motor vehicle without consent, possession of a scheduled substance contrary to the Controlled Drugs and Substances Act and fail to attend court. He was sentenced to 12 months probation after accounting for 3 days of pre-sentence custody.
[15] There were compliance issues related to this probation order and he acknowledged to the probation officer that he was negligent in complying with probation conditions.
[16] On October 19, 2016, he was found guilty of three counts of theft under and possession of a credit card contrary to s. 342(1)(c) of the Criminal Code. He received a six-month conditional sentence followed by eight months probation. He was also ordered to make restitution. He was also convicted of two counts of fail to comply with a recognizance.
[17] Mr. Gure failed to report to a conditional sentence supervisor several times, resulting in an allegation of a breach of this conditional sentence. He was apprehended while being arrested for charges of theft under and obstruct justice. The conditional sentence was subsequently terminated, and he completed it in jail.
[18] On January 24, 2017, he was found guilty of obstructing justice and theft under. He was sentenced to a 15-day intermittent sentence to be completed following the previous sentence.
[19] Probation was to begin upon completion of the intermittent sentence. He was supposed to complete his intermittent sentence on April 24, 2017; however, he was unlawfully at-large on his last weekend. He was called by his probation officer and instructed to report on May 1, 2017 but failed to report as directed. Notwithstanding the sanctions imposed upon him, he continued to engage with negative individuals and be involved in criminal activity. The current offence occurred on May 15, 2017.
The Circumstances of the Offender
[20] Mr. Gure is the second of seven children. Shortly after his birth in Somalia there was a civil war and his family emigrated to Canada in February 1992. They settled in Ottawa. His parents worked hard to provide opportunities for their children. His father, Ahmed Elmi, had been a pilot in Somalia but had difficulty becoming licensed in Canada so he pursued college studies and secured work in the information technology field. In 1999, Mr. Elmi started a Somali news network which has now evolved into a full-time job. He is well known and respected in the Somali community.
[21] Mr. Gure started to experience problems when he was in high school. He did not graduate. He committed his first offence of a robbery at age 18. He had stolen his mother’s car and used the vehicle in a robbery with others who held up a variety store at gunpoint. After this offence, his father brought him to Uganda in order to give him a reality check. Mr. Gure returned to Canada in 2007 and eventually completed the secondary school via adult high school.
[22] In 2015, Mr. Gure made a second trip to Africa with his father to motivate him to make changes in his life. Upon their return to Canada, his father was not prepared to let him live in the family home because he was concerned about his son’s impact on the rest of the family.
[23] With the encouragement of his parents, Mr. Gure moved to Saskatchewan to seek employment. But once he was there, contact with his family was limited. He came into further conflict with the law.
[24] He is the only member of the family with a criminal record. He reported that he did not have a good relationship with his siblings, but this has now changed.
[25] Mr. Gure moved in with his parents while on bail for this offence prior to being convicted. He reported to the probation office that, while on bail, he had the opportunity to bond with his father as they worked and went to the gym together. He developed a better relationship with his parents and his siblings and has developed an appreciation for family.
[26] Other than his high school education, he completed a Walls to Bridges course offered at the Ottawa-Carleton Detention Centre by the University of Ottawa. He also completed another course called “Othering and Criminal Justice.” He intends to further his education.
[27] Mr. Gure’s employment history is limited; his most recent work experience involves working from home for his father’s business.
[28] He reports regular marijuana use prior to this offence but denies ever selling crack in his life. He appears to rationalize his involvement in illegal activities, explaining that he was trying to make quick money. In retrospect, he blames his use of drugs for his current circumstances.
[29] When reflecting on the offence, Mr. Gure does not accept responsibility for the offence. He states that he regrets that he did not do more to encourage the victim to leave the apartment before events unfolded as they did. Beyond the fact that he was in the premises when the offence occurred, he does not agree with the information in the police report. He maintains that he was in the wrong place at the wrong time.
[30] Mr. Gure feels sorry for the victim and his mother and feels sorry for not listening to his parents’ advice.
[31] While at the Ottawa-Carleton Detention Centre, he worked with the multicultural inmate liaison officer and he says he would like to eventually do presentations to dissuade young people from being involved in crime. The liaison officer, Abdirizak Warsame, expressed his confidence that Mr. Gure will prove himself if offered another chance. Counselling services were provided to Mr. Gure by the Canadian Friends of Somalia while he was out on bail.
[32] Mr. Gure acknowledges that his response to past community supervision was poor. He claims that until his arrest on the current manslaughter offence “nothing woke him up.” He then took his bail conditions and house arrest very seriously.
The Assessment
[33] The probation officer notes that sanctions imposed prior to the current offence appeared to have had little deterrent or beneficial effect on Mr. Gure. Despite his reawakening, reported compliance, and increased responsibility on bail, Mr. Gure conceded that he made no effort to address the outstanding matters against him, including restitution, fines and victim surcharges. While these matters pale in comparison to the offence before the Court, his lack of action does not bode well.
[34] Mr. Gure verbalized regret for his situation and the impact the offences had on all involved. It was noted that Mr. Gure appeared to make positive use of his time in custody, focusing on self-improvement.
[35] Collateral references had positive impressions of Mr. Gure and prepared letters of support for the Court. His parents indicate their intention to take him back to Somalia and Kenya and for him to marry and establish a business. Mr. Gure does not share that goal.
Position of the Parties
[36] The Defence submits that a sentence in the range of three to five years is appropriate, with credit for pre-detention custody and for time out on bail under strict conditions. Relying on those calculations, the Defence argues for a sentence of time served or time served plus an additional short period of further incarceration.
[37] The Defence refers to the wide range of sentences that can be imposed in cases of manslaughter. The Defence notes that Mr. Afrah did not die as a result of a direct physical act on the part of Mr. Gure and submits that this is significant; there were others who were involved, and this was a case that had to go to trial. The Defence emphasizes Mr. Gure’s immediate expression of remorse after the incident when he said, “Why did I let it get this far out of hand?” The Defence relies on the expressions of remorse set out in the pre-sentence report.
[38] The Defence notes that Mr. Gure did not flee the jurisdiction and did not destroy any evidence; for example, his blood-stained boots and pants. The Defence notes that there have been no breaches while Mr. Gure has been out on bail and further emphasizes the attempts that Mr. Gure has made to rehabilitate himself with the support of his family. His parents attended every day of the trial.
[39] The Crown seeks a sentence of 10 years in jail with a pre-sentence custody credit of 1.5 days for each served in detention and with no credit for time out on bail. Mr. Gure was arrested on May 17, 2017 and remained in custody until after his preliminary hearing when he was granted bail. This is a total of 433 days, which results in a credit of 650 days. Mr. Gure’s bail was revoked on September 12, 2009. As of today, January 31, 2020, this is a further 141 days which results in a further credit of 212 days. Therefore, Mr. Gure’s total time served credit is 862 days.
[40] The Crown is seeking the following ancillary orders: a s. 109 prohibition for life; a DNA order; and s. 743.21 orders prohibiting contact while in custody with Miriam Asalow, Christina Gallinger, Jason Magoon, N.D.A., J.B., Daniel Jean Charles, Ron Tremblett, and Jaynee Bloomfield. These orders are not opposed by the Defence.
[41] The Crown emphasizes that manslaughter is a crime of consequences and stresses that this was a prolonged physical attack on a vulnerable victim over a $400 drug debt. The Crown argues that Mr. Gure started the assault, continued it, and set the chain of events in motion. The Crown maintains that Mr. Gure’s blameworthiness is high. The victim died in unimaginable terror.
[42] The Crown points out that Mr. Gure was an older and much larger man; it was not a fair fight. The Crown says that Mr. Gure threatened Christina Gallinger, a vulnerable person. Despite his denials, the Crown cites the evidence at trial that Mr. Gure was a crack dealer who sold crack to Ms. Gallinger, Jason Magoon, and Mr. Afrah. He lent his phone to Mr. Magoon so that he could commit telephone fraud. The Crown notes that J.B. received the maximum sentence for a young offender with no credit for pre-trial detention. While Mr. Gure may be sorry for what has happened, the Crown maintains that this is not a true expression of remorse. The Crown argues the fact that Mr. Gure did not run away or destroy evidence is irrelevant.
Sentencing Principles
[43] The principles of sentencing are set out in s. 718 of the Criminal Code. They are to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[44] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
The Caselaw
Case
Facts
R. v. Dhillon, 2019 ONCA 159, 373 C.C.C. (3d) 392
Accused lured victim into basement and offered him drugs – victim consumed drugs and was kidnapped on order of accused – trial judge found victim died due to drug consumption – victim’s body was burned – unforeseeable death was not a mitigating factor – after trial – sentence of 14 years for manslaughter and 2 years consecutive for offering indignity to body upheld
R. v. Ingram-Piruzevski, 2019 ONSC 4470
Victim was stabbed at drug deal gone wrong by youthful associate of the accused with the accused present – accused fled the scene after stabbing and attempted to leave town – guilty plea after preliminary inquiry – accused has no record – 7-year sentence imposed.
R v. Yusuf, 2012 ONSC 2421
Accused and victim were drinking at a bar and became intoxicated – accused punched victim that caused victim to fall off his bike, and then stomped on the victim’s head and kicked his head and body – victim died several weeks later – accused left the scene and was later arrested in Edmonton after failing to attend court for his plea – guilty plea – no record at time of offence – accused’s attitude towards court orders and his immediate departure from scene were aggravating – 6 ½ year sentence imposed
R. v. Côté, 2013 BCSC 2424
Accused assaulted the victim with a chain and pepper-sprayed him while the victim was sitting in a car – the victim fled from the car, ran across the street, and was struck by a passing motorist – victim later died – accused had serious record – accused had difficult childhood – after trial – accused was aboriginal – 5 year sentence was imposed
R. v. K.K.L., 1995 ABCA 196, 165 A.R. 375
Accused was attempting to change his daughter’s diaper on a changing pad on the floor – after the baby attempted to wriggle away, for a third or fourth time, the accused slammed the child against the ground with such force that her head struck the floor – guilty plea – sentenced varied to 4 ½ years after Crown appeal
R. v. Sinclair, 2009 MBCA 71, 240 Man. R. (2d) 135
Sentence appeal by co-accused Pruden-Wilson – three males beat victim and left him on the road – shortly after a passing car struck him, killing him – after trial – accused was indigenous – minor criminal record – 6-year sentence upheld
R. c. Bouchard, 2007 QCCQ 2494
Accused and other individuals confined victim and drove him to an isolated area – accused punched victim in the face – after victim fell to the ground, accused jumped on him with both feet – to escape, the victim rolled into a water filled ditch – panicked, the victim ran along train tracks towards the woods – accused chased him and did not later inform the authorities of what took place despite the perilous winter conditions – victim was found dead of hypothermia the next day – accused was found guilty of manslaughter – the subjective gravity of the facts leading to a guilty plea demonstrated that the accused did not intend for the victim to die – this rendered the offence more similar to criminal negligence causing death due to the objective foreseeability of death (rather than murder) – the accused was 25 and did not testify – court could not determine if there were mitigating factors – the aggravating factors were that he had a lengthy criminal record – he was subject to a probation order during the commission of the offence – 6 years imposed
R. c. Charbonneau, 2012 QCCS 147
Victim called to a park by the accused and others due to a dispute over territory for selling drugs – once victim arrived, accused (Charbonneau) pepper sprayed him – victim fled towards a canal – Charbonneau told others to catch him, and Moureau chased victim – victim was surrounded by side of canal – having only two choices, victim jumped into the canal to try and flea a beating and drowned a few seconds later – Charbonneau jumped in to try and save him without success – Moureau plead guilty during course of trial before jury verdict and received a suspended sentence with 3 years probation on joint position from counsel – 7 years imposed on Charbonneau – he was the protagonist in the incident, had a previous criminal record with incarceration, he used a prohibited weapon, possession of weapon was contrary to court order, his motive was to protect territory for selling drugs, marginalized and unstable lifestyle, attempt to save the victim, and the spontaneity of events.
R. v. Stephens, [1983] O.J. No. 734 (C.A.)
Accused, who had been drinking with friends, attended a bar – accused’s friends began assaulting unoffending victim outside of the bar – when the accused arrived, he kicked the victim in the head, causing a hemorrhage that caused the victim’s death – minor record – offender had good background and was contributing member of society – Crown appeal allowed, sentence varied to 3 years
R. v. Gibson, 4 O.A.C. 313 (C.A.)
Accused attended bar with some friends and became intoxicated – at closing time, the accused approached the victim and asked him where the “party” was – they did not know each other – a scuffle ensued, without blows – the co-accused arrived on scene and restarted the scuffle – a third individual who was involved in another fight inside the bar exited and kicked the complainant in the head – he subsequently died – after trial – Crown appeal dismissed, 2 years less 1 day upheld
R. v. Paul, [2000] O.J. No. 2251 (S.C.)
The victim hosted a 3-day drinking party, which the co-accuseds attended – McKenzie, the co-accused, confronted the victim after hearing that the victim had made sexual advances on a woman who was passed out – a fight ensued that involved both co-accuseds – the victim was dragged outside and was left there – he subsequently died – accused persons were intoxicated and had no memory of the offence – guilty pleas – accused Paul had an unrelated record – 5 ½ months and three years’ probation imposed on Paul – suspended sentence and 3 years probation imposed on McKenzie
R. v. Iozzo, [2004] O.J. No 3641 (S.C.)
The accused and his friends attended a bar located on the Carleton University Campus – at closing time, a friend of the victim made an insulting remark to a member of staff, who was the ex girlfriend of the accused – a fight ensued between the two groups but was broken up – the car the victim was riding in briefly followed the accused’s car but eventually stopped its pursuit – later that evening, the accused noticed the car used by the victim’s group parked in a park one block away from the accused’s residence – the accused assumed he had been followed and attended the park with a friend – the two men approached the victim and a friend from behind, and the accused struck the victim in the neck with a glass bottle, rupturing his carotid artery – the victim bled to death – guilty plea – positive Pre Sentence Report – no criminal record – 3 years imposed
R. v. Chan, 2006 ONCJ 436
Domestic argument ensued between the accused, aged 61, and his wife, age 71 – a scuffle ensued in the victim’s bedroom, where the two thrashed about on her bed – the bed moved forward, and the victim’s neck and shoulders went down between the bed and the wall – the accused left the victim to calm himself down, but when he returned, he discovered her deceased – it was determined the cause of death had been positional asphyxia – no punching or direct trauma occurred – accused pled guilty – no criminal record – accused re-arranged scene and did not call 9-1-1 until the next morning, but eventually confessed – 3 years imposed (14 months of pretrial custody had already been served)
R. v. Brizard, 2006 CanLII 5444 (Ont. C.A.)
Accused did not participate in beating of victim, who later died, but helped dispose of the body – unrelated record – guilty plea – accused was aboriginal – accused was intoxicated at the time and participating in a treatment program – accused appeal allowed – sentenced varied to 15 months
R. v. Tabbara, [2009] O.J. No. 4397 (S.C.)
Accused was out drinking with group of friends – argument began with accused’s group of friends – brief confrontation occurred in which the victim was not involved – at the end of the confrontation, the accused punched the victim in the back of the head, causing a hematoma that eventually killed him – positive Pre Sentence Report – after trial – no record – 2 years less 1 day imposed
R. v. Reeve, [2010] O.J. No. 5823 (S.C.)
The accused caused the death of the victim during a heated argument in which the accused pushed the victim – the victim fell and hit his skull on a trailer hitch, and died – accused later drove victim’s car off bridge with victim inside of it in an effort to conceal his crime and make it look like the victim died in a car accident – positive Pre Sentence Report – guilty plea – no record – 2 years less 1 day imposed
[45] As noted by Fuerst J. in Ingram-Piruzevski, the determination of a fit sentence is a fact-specific exercise. Fuerst J. also noted the diversity of circumstances that will found a conviction for manslaughter and the wide variation in the range of sentences as the chart in this decision illustrates. Fuerst J. remarked on the distinction between murder and manslaughter, and while the consequences for the victim are the same, the moral blameworthiness of the perpetrator of manslaughter is less than it is for the perpetrator of murder.
[46] Even so, the ultimate punishment for the crime of manslaughter is a life sentence, underscoring the value of human life and the seriousness of the consequences that should flow to an offender who ends a human life by an unlawful act.
[47] The challenge facing a sentencing judge is reflected in the comments of Voith J. in Côté, where he said, at paras. 52-54:
It has often been observed that the range of sentence appropriate for the offence of manslaughter may be as wide as for any other offence under the Criminal Code. The nature of the cases that give rise to manslaughter convictions extend from circumstances involving near accident to those involving near murder.
In R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, McLachlin J. as she then was, said at 48-49:
Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This Court acknowledged this in Martineau, at p. 647:
The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender.
It follows that the sentence attached to manslaughter does not require elevation of the degree of mens rea for the offence.
A significant distinguishing characteristic between cases involving sentences at the low end of the spectrum and those attracting somewhat higher sentences, is the moral blameworthiness of the offender. The range of sentences relevant to those involving near accident and those attracting somewhat more severe sentences was expressed in R. v. Mintert, 1995 CanLII 452 (BC CA), [1995] B.C.J. No. 652 (C.A.), at para. 20, citing with approval the reasons of the trial judge:
A review of the British Columbia Court of Appeal cases since 1990 dealing with the sentencing in manslaughter cases provides sentences from a suspended sentence to life imprisonment. The lower range involves a near accidental death and very special circumstances where the moral culpability of the offender is at the lowest.
In my opinion the next range involves sentences where the culpability of the offender is such that the principle of general deterrence warrants a sentence of one to seven years.
The next range involves sentences resulting in incarceration for six to twelve years where the need is to remove the offender from the community to meet risk that the offender presents after careful consideration of all the circumstances and the need for general deterrence; and the maximum sentence I’ve already discussed.
[48] This case features several aggravating factors:
1.While there are gaps in Mr. Gure’s criminal record, he was unlawfully at large and had failed to report to his probation officer when these events took place.
2.Mr. Afrah was killed in the course of collecting a debt on a drug deal. Mr. Gure confessed of his intent to “slap Mr. Afrah” around in order to collect that debt.
3.Mr. Gure chose to involve young people in the illegal activity that night.
4.Mr. Gure started the assault in the bathroom and then continued it in the hallway. He stood by while others kicked and punched Mr. Afrah. This was an unfair fight.
5.Mr. Gure prevented Mr. Afrah’s escape though the apartment door.
6.There was a high level of violence. N.D.A., one of Mr. Afrah’s tormenters, admitted that she had never seen anyone look that injured before.
7.Neighbours heard Mr. Afrah’s pleas for help and overheard him being told to shut up.
8.Mr. Gure directed Mr. Afrah’s forcible confinement in the dining area, refusing to let him go until a satisfactory arrangement was made for the payment of his debt.
9.Mr. Gure fled the scene after making a final threat to Christina Gallinger, a vulnerable witness to the events.
While Mr. Gure remained in the area, he gave direction and assistance to the others who fled the city.
Ahmed Afrah’s death has had a devastating effect on his family.
[49] The mitigating factors are these:
Mr. Gure has strong support from his family although their plans for his future are not the same as his own.
He has taken positive steps to rehabilitate himself.
Letters of support from the community enhance prospects for his rehabilitation.
[50] The Defence seeks credit for the remorse shown by Mr. Gure immediately after the incident and as recorded in his pre-sentence report. I am satisfied that Mr. Gure genuinely regrets what has happened and that he feels sorry about Mr. Afrah’s death and the pain it has caused Mr. Afrah’s mother and the shame he has brought on his family. But I cannot conclude he feels remorse for his actions.
[51] The role of remorse in sentencing was considered in R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.). In that case, the sentencing judge had treated the lack of remorse as an aggravating factor. Rosenberg, J.A., said this, at para. 81:
In my view, the trial judge erred in principle in considering lack of a demonstration of remorse as an aggravating circumstance. In R. v. Anderson (1992), 1992 CanLII 6002 (BC CA), 74 C.C.C. (3d) 523 at pp. 535-36, 39 M.V.R. (2d) 270 (B.C.C.A.), Taylor J.A. explained the role of remorse in sentencing:
The factor of “remorse” is often important. In so far as it might be suggested that the Court should regard those who come before it in a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitude they are able to summon, there would be little in this factor which could assist the sentencing judge. But to the extent that an accused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending, the existence of remorse in this sense obviously has much importance.
The capacity of human beings who have erred to recognize the magnitude of their wrongdoing, and to redeem themselves, offers the only possibility that those who have committed crimes may again become contributing members of the community, rather than its burden for the rest of their lives.
[Emphasis added]
[52] Valentini was cited by the Court of Appeal more recently in R. v. Shah, 2017 ONCA 872 where the Court had to consider if the trial judge erred in treating a lack of remorse as an aggravating factor. Watt J.A. said this at paras. 8 and 10:
Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini …. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness.
Rather, we read the trial judge’s query about the appellant’s lack of genuine remorse as connected to his conclusion about the appellant’s lack of insight into his offences, and his ultimate decision, in the paragraph immediately following, to give “relatively little weight” to the appellant’s guilty plea on that basis. This does not equate to treating lack of remorse as an aggravating factor. The trial judge was entitled to take the appellant’s lack of genuine remorse into account for the purpose of assessing the amount of credit that should be given for his guilty plea. There is no basis to interfere.
[53] In this case, Mr Gure accepts no responsibility for his actions. He denies any involvement in the offences that occurred that night. He equates himself with someone being in the wrong place at the wrong time. Mr. Gure cannot be penalized for a lack of a guilty plea. This case required a trial. He does not get the benefit that might otherwise have accrued from a guilty plea. It must be noted that J.B. plead guilty and received the maximum sentence for a young offender with no credit for pre-sentence custody.
[54] In much the same way, there can be no credit where the expression of remorse demonstrates a lack of insight into the offences that Mr. Gure has been found to have committed.
[55] I now turn to the credit, if any, to be given for the time Mr. Gure spent on bail. The Defence submits that the bail conditions were strict in that Mr. Gure had to wear an ankle bracelet and could only leave his parents home in the presence of one of his sureties. In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), the Court of Appeal said this at para. 36:
Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.
[56] I note that Mr. Gure had no curfew and was able to go the gym and go to work with his father. He has used this time to reunite with his family members and to take positive steps in his rehabilitation. I conclude that Mr. Gure’s bail conditions were not unduly onerous and did not amount to significant restrictions on his liberty. The restrictions, including wearing the ankle bracelet, were reasonable limits on his movements given his out-of-country and out-of-province travels. I do allow any credit for time spent while released on bail. That length of time is one of the factors to be considered in imposing the appropriate sentence.
[57] The defence argues that the tragic outcome of that evening was not foreseeable; that no one could have predicted that Mr. Afrah would do what he did to avoid a further beating. A similar argument was made in Dhillon. The appellant in that case believed that the deceased had stolen from him and ordered his kidnapping as a result. The victim was lured into the basement of one of the kidnappers with the promise of drugs. After consuming methamphetamine, the victim was beaten by five men and kidnapped. His hands and feet were bound, and his mouth was taped shut. He was dead by the next morning. The trial judge found that his death was caused by methamphetamine toxicity triggered by exertion and stress and/or cardiac arrhythmia. Watt J.A rejected the argument that the death was not foreseeable and observed that the kidnapping offence at the heart of that case could not be parsed in this way.
[58] In the same vein, Mr. Afrah’s tragic fall cannot be isolated from the events that preceded it. Those horrific consequences were a foreseeable result of a badly beaten young man desperately seeking the only available means to escape his tormentors.
[59] This is a serious instance of manslaughter. Mr. Afrah’s death is the senseless result of a $400 drug debt. Mr. Gure’s moral blameworthiness is high. His blameworthiness is not diminished by the absence of direct physical contact or the presence of others. He was the adult in the room and the only one who had not abused any substance. He set the ball in motion that night and could have stopped it at any time. He stood by while his youthful associates inflicted a savage beating on Ahmed Afrah and prevented his escape through the only door to the hallway. He refused to release Mr. Afrah until an arrangement could be made for the payment of his debt.
[60] This case more closely resembles that of Charbonneau, which also involved s. 222(5)(c) of the Criminal Code. There, the Court accepted a joint submission of seven years. A mitigating factor in that case was that the accused had jumped into the water to try to save the victim from drowning.
[61] After weighing all the relevant factors and having regard to the principles of sentencing, I am satisfied that a sentence of 7 years in the penitentiary is the appropriate sentence.
[62] Liban Gure, please stand. I sentence you to 7 years in jail less credit for pre-sentence custody of 862 days.
[63] I make a DNA order; a s.109 order for life, and the s. 743.21 non-communication order sought by the Crown during your time in custody.
Mr. Justice Robert N. Beaudoin
Released: January 31, 2020
COURT FILE NO.: 17-RM-2314
DATE: 20200131
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
LIBAN GURE
Defendant
REASONS FOR decision
Beaudoin J.
Released: January 31, 2020