Her Majesty the Queen v. Sumar Al-Rubayi

COURT FILE NO.: CR-19-4656

DATE: 2020-12-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SUMAR AL-RUBAYI

Applicant

COUNSEL:

Bryan Pillon, counsel for the Crown

Brian Kolman, counsel for Sumar Al-Rubayi

HEARD: November 23, 2020 at Windsor

REASONS FOR JUDGMENT

THOMAS, RSJ.:

[1] On November 4, 2017, Sumar Al-Rubayi attended a house party in Windsor with two friends, Idrisso Palmer and Neil Tap. Also at the house party were a number of others, including the victim of this offence, Jarvas Poberezny.

[2] At about 1:30 a.m., there was a confrontation between two groups and Al-Rubayi shot Poberezny five times with a handgun. The victim later died from his injuries. A forensic pathologist determined imminent death ensued from two of the gunshot wounds.

[3] Immediately after the shooting, Al-Rubayi left with his friends. Police interviewed those at the party. No one admitted that they witnessed the confrontation or the shooting.

[4] On November 6, 2017, police arrested Palmer and Tap for murder. Al-Rubayi, with the help of friends, drove to Chatham where he had someone dispose of a gun in the Thames River. He admitted to having shot someone and said he was backed into a corner by people with knives and bear mace. He also said the victim "deserved it."

[5] From Chatham, Al-Rubayi was driven to Brampton and from there to Calgary. On July 6, 2018, eight months after the murder, he was arrested by Calgary Police. His hair had been dyed a different colour.

[6] At the time of the shooting, Al-Rubayi was bound by a recognizance of bail not to associate with Tap and not to possess any weapons.

[7] He has been in custody since his arrest, spending a short period of time at the Southwest Detention Centre in Windsor before being transferred to Elgin-Middlesex Detention Centre, ("EMDC"), on August 11, 2018, where he remains.

[8] On September 9, 2020, he entered a guilty plea to the lesser included offence of manslaughter. At the time, the Crown submitted that the investigation had been hampered by a lack of cooperative witnesses and the loss of the firearm.

The Offender

[9] Sumar Al-Rubayi is now 22-years-old and was 19 at the time of this offence. He was born in Lebanon in 1998 and came to Canada with his family at age three. He has had no real contact with his father since age five. He, his two siblings and his mother moved to Windsor in 2016 where he attended high school. He has a grade 12 education. He has had no meaningful employment of any duration. He reported to the author of the pre-sentence report that he had been supporting himself for about a year and a half by trafficking in cocaine, and that he had been carrying a loaded handgun for his own protection.

[10] He continues to have the support of his sister and his mother, who have provided letters of support for him. His criminal record is brief but violent; a conviction for assault in March, 2019, where he received probation and a five-year weapons prohibition; and in November, 2019, a conviction for robbery where there was another weapons prohibition, a nine-month sentence taking into account pre-sentence custody, and a further three years' probation.

[11] He has never had the benefit of community supervision as his probationary terms expired while he was in pre-sentence custody for this offence. At the time he shot Jarvas Poberezny, he had no criminal record, but as previously mentioned, was bound by the terms of a recognizance.

[12] It is clear that Sumar Al-Rubayi was bluntly honest with the author of the pre-sentence report who summarized Al-Rubayi's position as follows:

The subject's personal problems include: a clear problem of compliance, anger management deficits, intimidating assault history, and weapons use. There were no physical or mental health concerns reported. Other risk factors include pro-criminal peer group, poor employment history, no pro-social leisure activities or engagement within the community, chronic cannabis abuse, and trafficking cocaine. The subject's strengths in life include: secondary school diploma plus post-secondary studies and reported close family relationships.

The Victim

[13] I know little about Jarvas Poberezny but that he was 23 at the time he was killed. At the time of the sentencing submissions in this matter, support for him was obvious from those in the courtroom, as well as those connecting by video. His grandparents, aunt and cousin provided victim impact statements. They speak of the family being broken by his death. The loss of a big-hearted young man who loved to make people laugh. Their grief is obvious as is their need to see this process to the end. The loss of this young life in this way is simply tragic. I agree with Jarvas' grandparents, Otis and Leona Scott, that "there isn't anything that I can say or do that will make the pain and the void go away."

Pre-Sentence Custody

[14] Defence counsel has submitted that during the time the offender spent in the Southwest Detention Centre, he was housed in administrative segregation. It was admitted that this was likely for his own protection.

[15] I have the report of Brandon Reeves, the Security Sergeant at EMDC, which provides the dates of lockdowns, the duration and rationale from August 11, 2018 to October 28, 2020.

[16] The report reveals that Al-Rubayi will have been in partial lockdown for 109 days during this period, for no other reason than because of staff shortages. I am aware from previous evidence, that Sergeant Reeves has no way of determining how long, on each of those days, the offender was actually locked down. It is clear, however, that these lockdowns are unrelated to the COVID-19 pandemic.

[17] It would seem EMDC has done a good job of managing the pandemic, as have most correctional facilities in the Province. There is no doubt, however, that life in those institutions is different than it was before March, 2020. Part of that change is a significant reduction in the inmate population. Throughout the past 7 months, there has only been one positive test of an inmate at this facility, which was resolved some time ago.

[18] I have no evidence that Sumar Al-Rubayi has any pre-existing medical conditions that place him at greater risk than any other 22-year-old. I recognize, however, that no one is immune from this virus and that correctional facilities continue to pose unique opportunities for COVID infections.

Sentencing Principles

[19] I have considered the sentencing purposes and principles set out in s. 718 – 718.2 of the Criminal Code. It is clear to me in a case such as this, denunciation and deterrence must be my primary objective without losing sight of the fact that Mr. Al-Rubayi is a 22-year-old offender who needs to be assisted in rehabilitation.

[20] The fundamental principle of sentencing is described in s. 718.1:

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

[21] The proportionality principle in this section requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61).

[22] Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089). Here, Mr. Al-Rubayi committed the offence of manslaughter. A serious violent crime. Five bullets into the body of Jarvas Poberezny.

[23] Finally, s. 718.2(a) directs that a sentence should be increased or reduced to account for relevant aggravating and mitigating factors. Let me turn to those now.

Mitigating Factors

[24] Sumar Al-Rubayi is 22 years of age. At the time of the offence he had no criminal record. He has entered a guilty plea to the offence of manslaughter, once that plea was available to him.

[25] He has, as a result, spared the family of the victim from enduring a painful trial.

[26] The plea is evidence of some remorse, as are his comments captured in the pre-sentence report, that he is sorry for what happened and that he wishes, instead of reacting as he did, that he had attempted to de-escalate the confrontation.

[27] In addition, he has support in the community from his sister and mother. He indicates he wishes to continue his education and own his own business. The evidence in this proceeding indicates his completion of five educational sessions while at EMDC, despite the restricted access to programming created by the pandemic.

Aggravating Factors

[28] The offence itself is aggravating. The offender brought a loaded handgun to a house party. He fired five rounds in a residential area killing the victim. He was bound by a court order at the time not to possess a weapon.

[29] Aggravating as well, is the fact that he possessed the firearm to protect himself in his occupation as a drug dealer. He then enlisted others to help him escape. They assisted in disposing of the firearm. They facilitated his flight to Calgary, where he remained for eight months, and where he altered his appearance in an attempt to escape detection. In the end, he was arrested in a vestibule of an apartment complex as a common trespasser.

[30] Finally, the affect this crime has had on the family and friends of Jarvas Poberezny must be seen as aggravating.

Position of the Crown

[31] The Crown seeks a sentence in the range of 10 to 12 years. It relies upon the following cases: R. v. Phillips, 2008 ONCA 688; R. v. Gill, 2011 ONSC 2598; R. v. Scopelliti, 2018 ONSC 4826; R. v. Robert-Stevens, 2019 ONSC 257; R. v. Jones-Solomon, 2015 ONCA 654; R. v. Yaali, [2018] O.J. No. 3058; R. v. Hanan, 2020 ONSC 1209.

[32] The sentences in these cases range from 10 to 15 years and all involve the use of a firearm. The Crown reminds me that there is a minimum sentence here of four years since there is a firearm used in the commission of this offence. (Section 236(a) of the Criminal Code).

[33] In addition, the Crown asks that I order that Sumar Al-Rubayi serve one-half of his sentence before being eligible for full parole, consistent with the terms of s. 743.6(1) of the Criminal Code.

Defence Position

[34] The defence suggests a range of 6 to 8 years, emphasizing the youth of Al-Rubayi and his lack of criminal record. The defence suggests the case of Gill is close on its facts to the matter here, but that Mr. Gill had a lengthy criminal record and was found guilty of manslaughter after a jury trial.

[35] The defence also offers R. v. Surendran, [2020] O.J. No. 2742, a decision of Justice Fuerst. The facts in Surendran involve a drug dealer with a gun and provocation by the victim. Surendran had a criminal record for violence, but also suffered from a brain injury and personality disorder. Surendran's first two shots were seen as self-defence, but after he fired a number of shots, including one to the back of the head of the victim that could not have been a lawful response to the threat he was facing. The sentence was eight years.

Determining the Sentence

[36] The crime of manslaughter attracts a broad range of sentence, depending on the circumstances of the offence and the offender. The contextual determination of the level of the moral blameworthiness of the offender is the key to the determination of the fit sentence in manslaughter cases (R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, para. 247). The offence captures a "well-established spectrum of culpability ranging from near accident to near murder" (R. v. E.H., 2005 BCCA 3, [2005] B.C.J. No. 4 (C.A.)).

[37] Justice Quigley, at para. 111 of R. v. Robert-Stevens, 2019 ONSC 257, offered this view of an appropriate range of sentence for the manslaughter case before him which involved a shooting in a residential area of Toronto:

[111] … sentencing in manslaughter cases is quintessentially case-specific. However, the Court of Appeal of this Province has held that in cases where the conduct of the offender was accompanied by aggravating features, the appropriate sentence will usually fall within the range of 8 to 12 years.[^1]

[38] I accept that the circumstances of Sumar Al-Rubayi in this shooting death amount to the aggravating features necessary to make the appropriate range of sentence here 8-12 years.

[39] Having adopted a range, my analysis must move on to a specific sentence and assess pre-sentence and post-sentence considerations.

[40] I recognize that this offender is young and lacked a criminal record. However, the discharge of a handgun on multiple occasions at a party in a residential area, along with the other aggravating factors, call for a sentence outside the range suggested by defence counsel. The increasing presence of firearms in disputes, particularly in drug-related circumstances, is all too common. It must be met with a strong message.

[41] In my view, the appropriate sentence here is one of 10 years.

Credits Against Sentence

[42] In R. v. Chol, 2020 ONSC 6644 at paras. 44-50, I spoke about the Court's practice of granting enhanced credit beyond the terms of s. 719(3.1) of the Criminal Code.

[43] At paras. 44 and 45, I said the following:

[44] The Court of Appeal in para. 6 of R. v. Duncan, 2016 ONCA 754, paved the way for the kinds of credits against sentence requested by defence counsel:

[6] On our reading of the trial judge's reasons, we agree with counsel. The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

[45] There is an adoption of this position taken by the Court of Appeal in R. v. Ledinek, 2018 ONCA 1017 and R. v. Deiaco, 2019 ONCA 12. Since then, a number of sentencing cases in the Province, including those set out below, have granted enhanced credit for pre-sentence custody conditions related to staffing and the impact of COVID-19 (R. v. Clarke, 2020 ONSC 3878; R. v. Charley, 2019 ONSC 6490; R. v. Audet, 2020 ONSC 5039).

[44] In Chol, I raised the concerns expressed by Miller J.A. in R. v. Gregoire, 2018 ONCA 880, about the practice of providing enhanced pre-sentence custody credits in the face of the clear terms of s. 719(3.1).

[45] In addition, I referenced the decision of Pomerance J. in R. v. Hearns, 2020 ONSC 2365, where she found she was unable to provide enhanced credit beyond that dictated by s. 719(3.1), but rather reduced the sentence as a result of the collateral consequences of serving a sentence during the COVID-19 pandemic, consistent with the decision in R. v. Suter, 2018 SCC 34.

[46] In para. 50 of Chol, I said the following:

[50] I chose in this particular circumstance to adopt the reasoning in Nasogaluak and Suter. I am troubled by the 109 days Mr. Chol spent in partial lockdown as a result of staff shortages, on the evidence before me, totally unrelated to the COVID-19 pandemic. These staff shortages are not limited to EMDC, as evidenced by other sentencing cases, nor are they limited to 2020. The Province has a responsibility to adequately supervise those it imprisons. I am aware as well that the sentence yet to be served by Mr. Chol will be more difficult in a COVID climate, even if only because of the psychological affect of an awareness of a lingering pandemic and a confined environment. I believe that both these retrospective and prospective concerns amount to a "consequence arising from the commission of an offence" (Suter, para. 47).

[47] I adopt that reasoning here. Considering the 109 days of partial lockdown due to staff shortages and the circumstances of the sentence of incarceration yet to be served, I exercise my discretion to reduce the sentence by six months. To adjust the sentence further, to take into account collateral consequences, would leave the sentence disproportionate to the gravity of the offence and the responsibility of the offender. (R. v. Pham, 2013 SCC 15, para. 18).

[48] Sumar Al-Rubayi will then have the credit directed by s. 719(3.1) of 1.5 days credit for each day served in pre-sentence custody.

[49] As of December 9, 2020, that amounts to 886 days less 120 days already credited against the previous robbery sentence. Therefore, the offender has 766 days at 1.5:1 or 1149 days, (3 years, 2 months), as the s. 719(3.1) credit. Deducting a further six months for the reasons provided above, the total deduction from the 10-year sentence is 3 years, 8 months. The sentence yet to be served is 6 years, 4 months.

[50] On the issue of delayed parole, I have considered the terms of s. 743.6(1) of the Criminal Code, which states the following:

Eligibility for Parole

Power of court to delay parole

743.6 (1) Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society's denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

[51] In R. v. Zinck, 2003 SCC 6, Justice LeBel emphasized that s. 743.6 should not be "applied in a routine manner" … "should not be exercised in a mechanical or automatic way, nor involved in connection with every jail term imposed for an offence covered by s. 743.6."

[52] In R. v. Goulet, 1995 CanLII 1198 (ON CA), [1995] O.J. No. 340 at p. 6, the Ontario Court of Appeal offered the following:

The circumstances of the offence will rarely provide much additional assistance under s. 741.2 where those circumstances have formed the primary basis for fixing the appropriate period of incarceration. …

The distinguishing characteristics of the offender may provide more fruitful grounds for invoking s. 741.2 as an exceptional measure. Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of parole ineligibility, an order under s.741.2 will be appropriate. A history of prior parole violations, or violations of other forms of conditional release, or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applying s. 741.2.

[53] Sumar Al-Rubayi is 22. At the time of the offence, he was 19 with no record. I have nothing before me that indicates to me that he will not be deterred or rehabilitated in the normal term of parole ineligibility. I am content that this sentence reflects appropriate denunciation. I decline to order the delay requested.

[54] In addition to the sentence I have prescribed, there will be an order under s. 487.05 of the Criminal Code that Sumar Al-Rubayi provide a sample of his blood for the purpose of analysis and storage in the National DNA Data Bank. There will be a s. 109 order prohibiting his possession of the weapons detailed in that section for his lifetime.

"Regional Senior Justice B. G. Thomas"

Regional Senior Justice B. G. Thomas

Released: December 9, 2020.

[^1]: See e.g, R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.); R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 35, 38; R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at para. 12; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at para. 83; R. v. Tahir, [2012] O.J. No. 6449 (S.C.), at paras. 8-55, aff'd 2016 ONCA 136 (C.A.), at para. 2.