Court File and Parties

COURT FILE NO.: CR-19-4705

DATE: 2021-02-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HABIBULLAH DANIEL AHMADI

COUNSEL:

Renee Puskas, counsel for the Crown

Patricia Brown and Lana Strain, counsel for Habibullah Daniel Ahmadi

HEARD: January 11, 12, 22, 2021; February 4, 2021

REASONS FOR SENTENCE

Thomas, RSJ.:

A. Introduction

[1] On November 13, 2020, I found Habibullah Daniel Ahmadi, (Daniel Ahmadi), guilty of second degree murder. While the sentence for this conviction must be one of life imprisonment, I must decide the term of parole ineligibility.

B. Sentencing Principles

[2] Section 745 demands a sentence of imprisonment for life and directs pursuant to s.745(c) that the sentencing judge determine the term of parole ineligibility from 10 to 25 years. Any greater term than 10 years can only be substituted after considering the following factors contained in s.745.4 of the Criminal Code:

a) the character of the offender,

b) the nature of the offence,

c) the circumstances surrounding the offence, and

d) the recommendations made by the jury pursuant to s.745.2.

[3] R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 continues to be the defining case from the Supreme Court of Canada on the principled application of the statutory criteria. At paragraphs 27 and 29 the Court stated the following:

…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 (now s.745.4), 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.

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”.

[4] Apart from the considerations mentioned above I must, as well, apply the purposes of sentencing reflected in s.718 and the principles contained in sections 718.1 and 718.2.

[5] The acceptable range for parole ineligibility must be regarded as being set primarily for continuing the denunciation of a rehabilitated person after the date upon which the Parole Board would have recommended release (R. v. Mafi (2000), 2000 BCCA 135, 142 C.C.C. (3d) 449 (B.C.C.A.) at para. 24).

[6] The issues of denunciation and deterrence must be considered the primary purposes directing this exercise. The statutory 10 year minimum period of parole ineligibility for second degree murder limits the weight that can be awarded the prospects of rehabilitation. While rehabilitation cannot be excluded from consideration, it does not have the same role as it would in other sentencing situations (R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (O.C.A.) at para. 39). Notwithstanding this, where the offender is youthful, rehabilitation remains the best protection for the public. (R. v. Edwards, 2001 BCSC 688, [2001] B.C.J. 1062).

[7] Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide whether the offender should be paroled, but merely the period he must serve before parole can even be considered: see R. v. Trudeau, (1987) 24 O.A.C. 376 (C.A.).

[8] It is important to remember that a person sentenced for murder may never be paroled.

C. Positions of the Parties

[9] The Crown seeks a parole ineligibility period of 14-17 years, emphasizing the savage nature of this offence. The Crown offers a number of cases which it believes supports this range, including Edwards on the lower end (12 years) and R. v. Haley, 2011 ONSC 5966 on the high end (18 years). These cases all consider offences directed at vulnerable victims. Haley involved a break and enter and vicious stabbing of a 5½-year-old child.

[10] Edwards was a 22-year-old indigenous offender. He and two others set upon the victim who was a stranger. Edwards kicked him in the head until he killed him, even as the others tried to pull him away. Justice Josephson of the British Columbia Supreme Court said this at paras. 25 and 26:

[25] … The crime that followed struck fear and caused outrage in the hearts and minds of reasonable members of the community. Following the crime, the accused persons thought only of their own escape without detection. Even when that was accomplished, not one entertained the possibility of seeking medical intervention for Mr. Gormley.

[26] This is the type of crime that threatens the sense of peace, well-being and security that is the foundation of any healthy community. It is replaced with a cold community chill, leaving law-abiding people reluctant to leave their locked homes.

[11] Because of his indigenous background and the impact of the Gladue Report, Justice Josephson reduced Edward’s parole ineligibility period from 14 to 12 years. His comments noted above could have described the attack on Sara Ann Widholm and its lingering effects.

[12] The defence seeks the minimum period of 10 years, emphasizing Daniel Ahmadi’s youth, lack of criminal record and expression of remorse.

[13] The defence draws my attention to the following cases. First, R. v. Shearer, 2015 ONSC 3890. In Shearer, the accused was an indigenous male offender with a minor but consistent criminal record for assaults. Shearer, in a fit of jealousy, struck his victim twice in the head with a baseball bat. He had stage 4 cancer and the Gladue Report emphasized his difficult upbringing. After a trial, eight jurors recommended parole eligibility of 10 years.

[14] In R. v. Kim, 2014 ONSC 2043, Justice Molloy sentenced Kim to a parole ineligibility period of 12 years. Kim was 40 years old with no record. He lured his victim to a remote area and then stabbed him to death. He then took some detailed steps in order to evade detection. Kim had a family and rehabilitation was found to be a realistic possibility. After trial, seven jurors recommended parole ineligibility of 10-12 years.

[15] In R. v. Dupe, 2011 ONSC 5683, Justice Dambrot sentenced Mr. Dupe to a parole ineligibility period of 14 years. Dupe was 51, an alcoholic and a crack addict. He had a history of violence against women, and in an act of jealousy, stabbed a female roommate to death. He had severe addiction issues, a personality disorder and there was little, if any, hope of rehabilitation. The majority of the jury recommended parole ineligibility of 20 years.

[16] R. v. Hong, 2016 ONSC 2654 considered a violent home invasion. Hong, along with three other accused beat the victim to death. Hong caused most of the injuries with a gun butt and punches to the face and head. Hong was 32 with a record for drug possession. He had a supportive family and a wide group of friends. He was sentenced to a parole ineligibility period of 13 years.

[17] Finally, in R. v. Chen [2006], O.J. No. 2330, the offender attempted to kidnap and ransom his nine-year-old victim who he tragically smothered trying to keep her quiet. Chen was 20 with no record. After he saw his victim was deceased, he dumped her body in a ravine where it was discovered five months later. Justice Durno set his parole ineligibility period at 15 years.

[18] The defence draws my attention to the fact that unlike many of the offenders in the above-mentioned cases, Daniel Ahmadi used no weapon and committed a spontaneous act of violence without any indicia of planning.

D. The Character of the Offender

[19] Daniel Ahmadi is 24 years of age and was 21 at the time of the offence. He had no criminal record. The information in this section of these Reasons is derived from the pre-sentence report, the submissions of counsel, the medical records filed and the letters from friends and family.

[20] Mr. Ahmadi was born in Afghanistan. His mother was a nurse. His father was a military officer. At the age of 25 his father lost his sight and an arm in an explosion. He has two older sisters and a younger brother. He was living with his sisters at the time of the offence.

[21] Daniel Ahmadi had a stable childhood in Canada, but his father’s disability meant that the family was always short on money. He left high school after grade 11 to work and assist his family financially.

[22] The records of the Southwest Detention Centre from shortly after his arrest describe persistent suicidal ideation and complaints of hearing voices.

[23] In the spring of 2018, he was assessed by Waypoint Centre for Mental Health Care in Penetanguishene. The assessment order focussed the assessment on criminal responsibility and fitness.

[24] Mr. Ahmadi reported to his assessor, Dr. Robert Dickey, that he had suffered from auditory hallucinations for approximately a year but had told no one. Dr. Dickey’s report concluded that:

Mr. Ahmadi’s mental status examination was essentially normal. Although he did report endorsing auditory hallucinations, there was no corroborating or clinical information of signs of his experiencing or responding to such. His ideation was certainly within normal limits. He was able to participate in ward activities and interface with patients and staff on the ward in a totally appropriate manner. His self-care was good. he did not appear significantly depressed and there was no evidence overtly of his having any cognitive defect. …

It cannot be definitively determined whether or not Mr. Ahmadi suffers from any major mental illness. Drug-Induced Psychosis or Psychosis, Not Otherwise Specified are possibilities. On the other hand, his endorsing symptoms of such may be related to anxiety regarding his current situation or even despite psychological testing, possible Malingering.

[25] It was recommended that Mr. Ahmadi be monitored by psychiatric professionals and that he continue with low doses of an antidepressant and an antipsychotic. It was also Dr. Dickey’s opinion that he would do well while incarcerated and could transition quickly to a lower security facility.

[26] The letters of support from his parents, his siblings and his friends describe a young man who cared for his family and did all he could to support them. They are shocked at his actions here and find it completely out of his character. They suggest he “hung” with a bad crowd, used drugs at times and often seemed depressed. They emphasize that he has much life to live and urge a lenient sentence. While understandable, I reject their position that Daniel could not have known what he was doing to have exacted such a brutal beating.

[27] Daniel Ahmadi has completed 20 educational sessions while in pre-trial custody. He hopes to train while in custody to become an electrician.

E. The Nature and Circumstances of the Offence

[28] In the early morning hours of October 8, 2017 Daniel Ahmadi was walking on the Ganatchio Trail with Evan Hooper-Gelinas. They were out for a walk after a night with friends having smoked significant quantities of marijuana and ingesting psilocybin.

[29] At about 7:45 a.m. they came upon 75-year-old Sara Anne Widholm walking alone on the darkened trail. As was her custom, she was out in the early morning maintaining the trail, picking up discarded garbage and refundable alcohol containers which she could return for charitable donations.

[30] Against the urgings of Hooper-Gelinas, Daniel Ahmadi jogged up to Mrs. Widholm and after a brief conversation, inflicted a savage beating on this defenceless elderly woman. He punched her once in the face causing her to drop down face first.

[31] While Sara Anne Widholm begged him to stop, he rained down approximately 20 blows to the back of her head including elbow strikes. He then picked up her head and slammed it into the ground on several occasions. During the frenzied attack, Hooper-Gelinas tried to get him to stop but was brushed aside. It should be noted that Daniel Ahmadi was a mixed martial arts (MMA) enthusiast.

[32] While Hooper-Gelinas ran for help, Daniel Ahmadi escaped the scene into the deep undergrowth surrounding the Ganatchio Trail. One hour and 24 minutes after the attack he was captured on surveillance video sliding through a fence and moving away from the emergency vehicles clustered around the area where police had discovered Mrs. Widholm.

[33] Two hours and 15 minutes after the offence, Daniel Ahmadi was arrested outside his nearby residence. He had removed his bloody shirts and done his best to wash Sara Widholm’s blood off his body.

[34] His statements to police suggested that someone had “slipped” him something; that he could not recall the assault; that he blacked out; and that due to the psilocybin, he was hallucinating and did not see a 75-year-old woman, but was scared by an indescribable form and that he lashed out presumably to protect himself.

[35] The injuries to Mrs. Widholm’s head were devastating. Her skull was shattered with pieces projecting into her brain. There was a hole in her skull exposing her brain and a life-threatening subdural hematoma had pushed her brain out of place. Mrs. Widholm underwent multiple surgeries in Windsor and London, but never regained consciousness and fell into a persistent vegetative state. Her feeding tube was eventually removed, and she passed away 14 months after she was attacked.

[36] I rejected the defence argument regarding the accused’s degree of intoxication and concluded that, for reasons unknown to me, Daniel Ahmadi intended to cause Sara Anne Widholm bodily harm he knew was likely to cause her death and was reckless as to whether death ensued, thereby committing second degree murder.

[37] I will turn now to identify aggravating and mitigating factors.

F. Aggravating Factors

[38] The facts of this homicide are significantly aggravating. It was a brutal attack on a vulnerable and defenceless victim. Multiple strikes directly to the head effectively disintegrating the skull and damaging the brain beyond repair.

[39] Also aggravating is the fact that Daniel Ahmadi’s companion, Hooper-Gelinas warned him to leave Mrs. Widholm alone and that the attack persisted while Hooper-Gelinas tried to pull him away from what was surely, by then, an unconscious victim.

[40] Aggravating as well is Ahmadi’s escape from the scene and his attempts to clean himself of the blood of his victim. He escaped thinking only of saving himself and his statements to police were self-serving attempts to mask his criminality and divert responsibility.

G. Victim Impact Statements

[41] In considering aggravating factors I must not forget the impact this murder has had on the family and friends of Sara Anne Widholm. She was a wife of over 50 years. Her husband was robbed of her support when he died a month later. She was a loving mother and grandmother; a loving sister and a dear friend. She was active in the community and a great supporter of her church. Nothing that I can say and no sentence I prescribe will assist with the fear, anger and anxiety of those she left behind.

[42] I have, as well, received a community victim impact statement from Drew Dilkens, the Mayor of the City of Windsor, prepared pursuant to the terms of s. 722.2 of the Criminal Code. His statement only emphasizes what I already knew, and that is that a crime like this, in a popular recreational area, brings anxiety to the community at large. People attempt to speculate on what lead to this attack in an attempt to distance themselves from this type of criminality; in an attempt to convince themselves that this could not happen to them. When they can find no apparent motive, it increases the impact.

[43] As directed by s. 722.2, I have considered Mayor Dilkens’ statement along with all the other victim impact statements as I determined this sentence. They are but one factor of many. It is important for me at all times to recognize that this process can never be overwhelmed or distracted by anger or thoughts of vengeance.

H. Mitigating Factors

[44] Daniel Ahmadi is a young man with no previous record. He has a supportive family and friends in the community. He has taken courses in custody to better himself and he hopes for employment in a trade of his choice. He has good prospects for rehabilitation. As mentioned at the outset, that is the best hope for the protection of the public.

[45] While the conviction comes after trial he, at all times, admitted the act and allowed the trial to focus on his intent. This lead to a focussed and shortened trial process.

[46] He has expressed his remorse for his actions, but it is tempered by his continued insistence that his drug-induced state presented him with an altered reality absolving him of his criminal act.

I. Analysis

[47] The jurisprudence in this area, some of it cited above, makes it clear that the determination of parole ineligibility is a very fact-specific exercise. As mentioned, the continuum between 10 to 25 years allows for the appropriate positioning of moral blameworthiness along the sliding scale.

[48] It is difficult to imagine a more despicable and cowardly attack than the one absorbed by Sara Anne Widholm on the Ganatchio Trail. The moral blameworthiness and aggravating factors present require a hard look at the Crown’s range of parole ineligibility. However, in the final analysis I chose to step back from that range, while recognizing that the aggravating factors mean something above the minimum is required.

[49] Daniel Ahmadi is a young man. There are positive signs for his rehabilitation. I find that a fit sentence is his imprisonment for life with no eligibility of parole until he has served 13 years.

[50] In coming to that conclusion, I have not lost sight of the enormity of the loss experienced by Mrs. Widholm’s family, her friends and her community. That loss is reflected in the life sentence imposed.

[51] These are the following ancillary orders:

(a) a weapons prohibition for life pursuant to s. 109 of the Criminal Code;

(b) an order that he provide a sample of his blood for DNA analysis and archiving pursuant to s. 487.051 of the Criminal Code.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Released: February 4, 2021.

COURT FILE NO.: CR-19-4705

DATE: 2021-02-04

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

HABIBULLAH DANIEL AHMADI

REASONS FOR SENTENCE

Thomas, RSJ.

Released: February 4, 2021.