COURT FILE NO.: CR-19-70000385-0000
DATE: 2020-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mark Friedman for the Crown
- and -
SHADIB ABDUL ALI MOHAMMAD TARIQ ABDUL ALI
John Kaldas for Shadib Abdul Ali Ines Gavran for Mohammad Tariq Abdul Ali
HEARD: September 21, 2020
REASONS FOR SENTENCE
CORRICK J.
Introduction
[1] Following a trial, I found Shadib Abdul Ali and Mohammad Tariq Abdul Ali guilty of aggravated assault on January 15, 2020. The matter was adjourned to March 31, 2020 for sentencing submissions. However, the COVID-19 pandemic resulted in the suspension of normal court operations, and sentencing submissions were delayed until September 21, 2020. Both men appear before me today for sentencing.
[2] Shadib and Mohammad Tariq Abdul Ali are brothers. To avoid confusion, I will refer to them by their first names. I mean no disrespect by doing so.
[3] Crown counsel seeks a penitentiary sentence of 30 months for both men, and a period of probation. He also seeks an order requiring both men to provide a DNA sample and an order prohibiting both men from possessing any weapons for a period of ten years.
[4] Counsel for Mohammad submits that a conditional sentence of five months and 29 days to be followed by probation for one year is the appropriate disposition. Counsel for Shadib also submits that a conditional sentence is the appropriate disposition.
Circumstances of the Offence
[5] On November 18, 2017, Messrs. Abdul Ali confronted the complainant, Reeshteen Shinwarie, in a warehouse where he was working. After a brief exchange of words, Shadib punched Mr. Shinwarie in the face causing him to fall to the ground so hard that his head bounced off of the concrete floor. Mr. Shinwarie lay motionless on the floor while the defendants kicked him in the head while others tried to hold them back. Each man kicked Mr. Shinwarie in the head at least four times. The defendants were separated from Mr. Shinwarie twice. After the first separation, Shadib returned and kicked Mr. Shinwarie twice in the head, and Mohammad kicked him in the head once more. After they were separated a second time, both men returned and kicked Mr. Shinwarie in the lower back. The attack lasted 20 seconds and was captured by the surveillance cameras in the warehouse.
[6] Mr. Shinwarie suffered facial injuries including significant bruising and swelling around his right eye, swelling of his lips and cheek, and a large cut on the right side of his face, which required medical intervention to repair. The vision in his right eye was affected to the extent that he had to wear corrective lenses for a year following the assault. Fortunately, Mr. Shinwarie has not suffered any permanent injury.
Circumstances of the Offenders
[7] Both defendants were born in Afghanistan and immigrated to Canada with their parents and siblings in 2007. Shadib is a Canadian citizen. Mohammad is a permanent resident.
[8] Shadib is 28 years old. He is married and has two young sons. His eldest son, who is 3 years old, suffers from bilateral hearing loss that requires ongoing frequent medical attention.
[9] Shadib is the sole provider for his family. He has been gainfully employed since leaving high school. Prior to being charged with this offence, he had his security licence and worked in that field for six years. In addition, he worked as an Uber driver for 18 months. He lost both of these positions as a result of being charged with this offence. For more than the past two years, he has been employed as a flooring installer by SOSO Design, a company partly owned by his brother, Mohammad. A letter from his employer, filed as an exhibit, attests to Shadib’s strong work ethic and personable character.
[10] Ten letters of support from friends, family and co-workers were filed on behalf of Shadib. They describe Shadib as a respectful, hard-working, generous man who is known for helping others. Customer reviews of Shadib as an Uber driver commented on his high level of service and his helpfulness.
[11] Shadib has no criminal record.
[12] He has accepted responsibility for this offence. He did so in a letter to the court and in the remarks he made to the court. He apologized for the assault in a letter written to Mr. Shinwarie. The author of Shadib’s pre-sentence report noted that Shadib seemed sincere in his expression of remorse for the assault. I accept that he is genuinely remorseful.
[13] Mohammad is 35 years old. He is the sole financial provider for his wife and two daughters, aged 3 and 4. He also financially supports his parents, siblings, and extended family in Afghanistan.
[14] Mohammad has been steadily employed since arriving in Canada. He is currently a part owner of a flooring company. His business partner described Mohammad in a letter as a hard-working, polite, calm person who plays a pivotal role in the day-to-day running of their company.
[15] Eleven letters of support from family, employees and friends were filed on Mohammad’s behalf. They speak of a peaceful, respectful and generous man devoted to his family.
[16] In March 2011, Mohammad was convicted of impaired driving and refusal to provide a breath sample. He was fined and placed on probation for 9 months. He successfully completed his probation.
[17] He has accepted responsibility for this crime. He expressed this to the author of the pre-sentence report, in a letter addressed to the court and in a letter of apology he sent to Mr. Shinwarie. He has expressed his remorse and shame for his behaviour. I accept that his remorse is genuine.
[18] I turn now to a consideration of the applicable legal principles.
Legal Parameters
[19] Aggravated assault is punishable by fourteen years in prison: Criminal Code, s. 268(2). Counsel agree that a conditional sentence is available as a disposition in this case as a result of the Court of Appeal’s decision in R. v. Sharma[^1], which declared s. 742(1)(c) of no force and effect. Crown and defence counsel disagree about the fitness of a conditional sentence in this case.
Governing Sentencing Principles
[20] In determining a fit sentence for Messrs. Abdul Ali, I am governed by the sentencing principles set out in the Criminal Code.
[21] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:
(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct,
(b) deterring the offender and others from committing crimes,
(c) separating offenders from society where necessary,
(d) assisting in the rehabilitation of the offender,
(e) providing reparations for harm done to the victim or to the community,
(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.
[22] The second is the principle of proportionality set out in s. 718.1. The sentence I impose must reflect the gravity of the offence and the degree of responsibility of the offender.
[23] I am also required by s. 718.2 to take the following matters into consideration when imposing sentence in this case:
❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
❏ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Sentences Imposed in Other Cases
[24] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.
[25] Crown and defence counsel have provided me with cases in support of their respective positions on the appropriate sentence. The sentences handed down for aggravated assault in those cases ranged from suspended sentences to penitentiary terms. This broad sentencing range reflects the myriad of different circumstances in which aggravated assaults are committed.
[26] Defence counsel relied on cases in which non-custodial or short reformatory sentences were imposed. Many of the cases relate to assault causing bodily harm convictions. These cases are less helpful in establishing the range of sentence in this case as assault causing bodily harm is a less serious offence that carries a maximum penalty of ten years, rather than fourteen.
[27] The cases dealing with aggravated assault in which non-custodial or short sentences were imposed are distinguishable from this case by the marked difference in the degree of violence involved. In R. v. Berry,[^2] R. v. Chenje,[^3] and R. v. Hunter,[^4] the accused person struck the victim only once causing serious injuries to the victim.
[28] A case in which the accused person was convicted of aggravated assault and sentenced to 90 days to be served intermittently involved an element of self-defence, which is absent in this case. In R. v. Gugaruban,[^5] the accused person punched and kicked the victim breaking his orbital bone. In his reasons for sentence, Justice Goldstein found that Mr. Gugaruban had reasonably believed that he was going to be assaulted by the victim but used more force than was necessary to defend himself.
[29] Crown counsel relied on cases in which upper reformatory or lower penitentiary sentences were imposed. In R. v. Louangrath,[^6] the offender recruited eight other people to assist him to attack someone he believed had vandalized his car. The victim suffered serious, long-lasting injuries. The offender had a criminal record and was serving a conditional sentence at the time of the assault. A sentence of 3½ years was upheld by the Court of Appeal.
[30] The offender in R. v. Brethour[^7] was involved in a two- on-one fight that left the victim with significant long-lasting injuries. The offender had a substantial youth record for violent offences and an adult record for assault. He was sentenced to three years in the penitentiary.
[31] In R. v. DeSilva,[^8] the offender was sentenced to two years less a day for striking a disabled person with a cane eight times. The offender had pleaded guilty and had a very sympathetic background.
[32] I sentenced a first offender to 18 months in prison in the case of R. v. Amador.[^9] The offender and another man accused the victim of being a “snitch” and kicked and punched him after he fell to the ground. The victim suffered a fractured orbital bone and ankle and spent nearly two months in hospital.
[33] The Amador case is the most factually similar to this case. It involved a violent beating by two people on a defenceless person who was on the ground. The injuries suffered by the victim were more serious in that case. Mr. Amador pleaded guilty to robbery and aggravated assault. He had no criminal record.
[34] I have reviewed all the cases provided. Although they assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.),[^10] “there is no such thing as a uniform sentence for a particular crime.” The circumstances of any case, including this one, can be readily distinguished from any other case.
[35] Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Messrs. Abdul Ali within that range.
[36] It is clear from the jurisprudence that the level of violence used to carry out this assault on Mr. Shinwarie calls for a sentence that adequately addresses the sentencing objectives of denunciation and deterrence.
Aggravating and Mitigating Circumstances
[37] I turn now to consider the aggravating and mitigating circumstances.
[38] First the aggravating factors.
[39] This was a brutal, cowardly attack by two men on a defenceless victim. Shadib’s initial punch caused Mr. Shinwarie’s head to bounce off of a concrete floor. While Mr. Shinwarie lay there motionless, the two men took aim and kicked him multiple times in the head as bystanders attempted to stop them. Once separated from Mr. Shinwarie, they escaped the grip of the bystanders and both of them kicked Mr. Shinwarie’s head as if it were a soccer ball. For good measure, they both kicked Mr. Shinwarie in the lower back before leaving. The level of violence was extreme.
[40] Fortunately, Mr. Shinwarie did not suffer any permanent injury. However, the right side of his face was swollen and extensively bruised. His lips and right eye were swollen. A cut on his face had to be repaired at the hospital. The vision in his right eye was impaired requiring him to wear corrective lenses for several months.
[41] The Crown submits that this assault was a planned, pre-meditated act of vigilante justice committed by Messrs. Abdul Ali. Counsel for Shadib disputes this. He submits that the Crown has not proven beyond a reasonable doubt that the attack was planned. Rather, the reason for the presence of Messrs. Abdul Ali at the warehouse that day is set out in Shadib’s letter of apology to Mr. Shinwarie. The two men went to the warehouse to pick up their brother’s pay cheque and to ask Mr. Shinwarie to delete the video of the fight he had had with their brother from the internet. Words were exchanged between Mr. Shinwarie and Shadib, and the assault ensued.
[42] I accept that there is no evidence that the assault was planned or pre-meditated. That aggravating fact has not been proven beyond a reasonable doubt. That does not lead to my acceptance of the submission that this beating was somehow divorced from the fight between Mr. Shinwarie and the younger brother of the defendants. Shadib’s explanation for his presence at the warehouse and loss of temper, contained in a letter of apology to the victim written after he has been convicted, is not evidence.
[43] This assault was fuelled by the defendants’ rage at Mr. Shinwarie for injuring their youngest brother the day before. This offence did not occur immediately in response to Mr. Shinwarie injuring the defendants’ brother. Rather, it occurred the next day after time for reflection when cooler heads ought to have prevailed.
[44] There are also mitigating factors to consider in sentencing the defendants.
[45] Both men are employed. They are productive, contributing members of their communities. They are both married and are the sole financial supports of their wives and children. They enjoy the support of their extended families, co-workers and friends, which bodes well for their rehabilitation.
[46] From all accounts, this violent offence is entirely out of character for both men. The letters filed in support of both men demonstrate that they are regarded as peaceful, respectful and kind people. The pre-sentence reports written about both of them are positive.
[47] Shadib has no criminal record at all, and Mohammad has a record from almost ten years ago for an unrelated impaired driving offence.
[48] Both men have accepted responsibility for this offence and have expressed their remorse, both to the court and to Mr. Shinwarie.
[49] Finally, this offence occurred three years ago. Both men have been on judicial interim release since that time with no further difficulties with the criminal justice system.
Collateral Consequences
[50] Two further matters require consideration in determining a fit sentence.
[51] The first relates specifically to Mohammad Abdul Ali. He is not a Canadian citizen, but a permanent resident. If he is sentenced to a term of imprisonment of six months or more for this offence, he will lose the right to appeal a removal order made against him by the Immigration and Refugee Board of Canada. He could be deported to Afghanistan. Of course, this would have a devastating effect on his wife, who is not from Afghanistan, and his children, who were born in Canada.
[52] The effect of the sentence I impose on Mohammad will have a more significant impact on him because of this. I must take that into consideration when determining the appropriate sentence. However, the sentence of five months suggested by his counsel, Ms. Gavran, is disproportionate to the gravity of this offence and Mohammed’s moral blameworthiness. As Justice Moldaver wrote in R. v. Suter,[^11] “… 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.”
[53] The second matter I must consider is the impact of the COVID-19 pandemic on the sentence that ought to be imposed in this case. Many of my colleagues have commented on the pandemic’s adverse effects on the conditions of imprisonment.[^12]
[54] How does COVID-19 affect the determination of a fit sentence? Justice Pomerance noted that the fitness of a sentence requires the consideration of both the length of the sentence and the harshness of the conditions under which it will be served. She wrote the following:
As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection, or because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.[^13]
Determination of a Fit Sentence
[55] Sentencing is a trial judge’s most difficult task. It is even more difficult in a case such as this in which offenders act in ways that are out of character for them and commit serious crimes.
[56] I cannot accept Ms. Gavran’s submission that a conditional sentence can adequately address the sentencing objectives of denunciation and general deterrence, which are paramount when dealing with violent offences of this magnitude. Although Chief Justice Lamer held in R. v. Proulx[^14] that conditional sentences can meet the objectives of denunciation and deterrence in some cases, he also noted that there will be cases, “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”[^15] The sheer brutality of this assault requires the imposition of a custodial sentence. A conditional sentence cannot satisfy the sentencing objectives of denunciation and general deterrence.
[57] Rehabilitation, however, cannot be overlooked. It remains a very significant and important objective in this case given the excellent rehabilitative prospects of both of the defendants.
[58] In my view, the imposition of a penitentiary sentence as proposed by the Crown would fail to adequately reflect the various mitigating factors in this case. It would also fail to account for the conditions in which the defendants will serve their sentences as a result of the COVID-19 pandemic.
[59] There is nothing significant to warrant the imposition of different sentences on the defendants. Although Shadib is a first offender and Mohammad is not, Shadib is the person who threw the first punch knocking Mr. Shinwarie to the floor. Although Mohammad is at risk of suffering immigration consequences and Shadib is not, I have already indicated that these consequences cannot justify a sentence that is disproportionate to the gravity of the offence and moral blameworthiness of the offender.
[60] I find that the appropriate sentence in this case for both defendants is one of 15 months in custody to be followed by probation for two years. This sentence recognizes the serious nature of the crime committed as well as the mitigating personal circumstances of each of Shadib and Mohammad Abdul -Ali.
[61] The terms of probation will be as follows:
a) keep the peace and be of good behaviour;
b) appear before the court when required;
c) notify your probation officer in advance of any change of your name or address;
d) notify your probation officer promptly of any change in your employment;
e) report to a probation officer within three working days of your release from custody, and after that, as directed by your probation officer;
f) do not contact Reeshteen Shinwarie, directly or indirectly;
g) do not be within 100 metres of any place you know Reeshteen Shinwarie to be;
h) do not possess any weapons as defined by the Criminal Code;
i) attend and actively participate in any counselling or rehabilitative programs recommended by your probation officer; and
j) sign any release forms necessary to allow your probation officer to monitor your attendance and participation in such programs.
[62] In addition, I impose the following ancillary orders:
a) a s. 109 weapons prohibition order for 10 years; and
b) an order that both Shadib and Mohammad provide a sample of their DNA.
Corrick J.
Released: November 18, 2020
COURT FILE NO.: CR-19-70000385-0000
DATE: 2020-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHADIB ABDUL ALI MOHAMMAD TARIQ ABDUL ALI
REASONS FOR SENTENCE
Corrick J.
Released: November 18, 2020
[^1]: 2020 ONCA 478 [^2]: 2015 ONSC 2560, 4-month custodial sentence upheld by the Court of Appeal, 2018 ONCA 86 [^3]: 2019 ONCJ 140 [^4]: 2015 ONSC 325 [^5]: 2013 ONSC 3243 [^6]: 2014 ONSC 2120, upheld by the Court of Appeal, 2016 ONCA 550 [^7]: 2013 ONSC 1167 [^8]: 2010 O.J. No. 4862 (SCJ) [^9]: 2014 ONSC 4187 [^10]: 1996 230 (SCC), [1996] 1 SCR 500, at para. 92 [^11]: 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48 [^12]: See R. v. Hearns, 2020 ONSC 2365; R. v. Studd, 2020 ONSC 2810; R. v. Kandhai, 2020 ONSC 1611; R. v. M.W., 2020 ONSC 3513. [^13]: Hearns, at para. 16 [^14]: 2000 SCC 5 [^15]: Proulx, at para. 106.