COURT FILE NO. CR-18-70000696

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and - TANADE MOHAMED

* * * * * * * * * * *

R E A S O N S F O R S E N T E N C E (VIA ZOOM)

-- Before the HONOURABLE MR. JUSTICE BAWDEN, at 361

University Ave., CR 6-3, Toronto, Ontario, on the 14th day of October, 2021.

APPEARANCES:

MS. A. TENHOUSE -- For the Crown

MR. G. GROSS-STEIN -- For the Accused

THURSDAY, OCTOBER 14, 2021

R E A S O N S F O R S E N T E N C E

Bawden J., (Orally):

These are my oral Reasons for Sentence regarding the conviction of Tanade Mohamed for the offences of second degree murder and manslaughter.

Comments to the Families of the Deceased

I would like to begin these Reasons by speaking directly to the families of the two young men who were killed, Tyler McLean and Zemarai Khan Mohammed. On October 4th, I heard 17 Victim Impact Statements filed by the friends and family of these two young men. Every single member of the two families read his or her own statement to me, and they often struggled to speak, either from grief or rage. Those statements were an important part of this sentencing hearing and they have forcefully brought certain aspects of the case to my attention. I am grateful for those statements and I want to assure you all that I heard you.

One comment which was made by many of the speakers was that the families of the deceased have not been seen or heard during this trial. The people who lost the most as a result of these crimes were shut out from this trial. I have great sympathy for that statement, and I accept that it is true.

This trial has been conducted entirely through video conferencing. The only faces which appeared on the

screen were those of the accused, counsel and the witnesses. The faces and presence of the families of the deceased and the accused were not visible. That is not our tradition.

Tyler McLean's father, Hugh McLean, is himself a lawyer. In his statement, he decried the fact that this case was not tried before a jury and was instead decided by a judge sitting alone. Our Criminal Code requires that murder charges be tried by a jury; it is only in rare circumstances that the Attorney General will consent to a murder trial being conducted by a judge sitting alone. This case was one of those rare occasions. It has been over four years since Tyler McLean and Zemarai Khan Mohammed lost their lives and for the witnesses, the families and the accused, this case simply had to be resolved. Due to the inability to panel juries during the Covid pandemic, a judge alone trial by Zoom was the only available option. I can only agree with Mr. McLean that much was sacrificed in the process.

Although it is rare for a jury to hear evidence from the family of the deceased in a murder trial, that does not mean that the family is unknown to the jury. As a jury files into court each day, they see the families of both the deceased and the accused, often seated in the front row of the court. The presence of family adds an important solemnity to the proceedings, providing a constant reminder to everyone in the courtroom of the human consequences of the trial. The human element of a jury trial is not formally recognized in our law, but it is universally understood to be an integral element of how we, as a community, respond to the taking of a human life. Much of that human element was lost in this Zoom proceeding.

There were two comments in the Victim Impact

Statements which I feel I must address.

The first came from the statement of Zemarai Khan Mohammed's brother, Mr. Jamal Khan. Jamal Khan commenced his Victim Impact Statement by holding up a picture of his brother. Mr. Khan pointed to the picture and said emphatically: "This is my brother — this is what my brother looked like." I understood that Mr. Khan was pointing out to me that over the course of this entire trial, not a single picture of his brother in life had been put before the court. Instead, the court saw only a tarpaulin covering his brother's body as it lay in a parking lot. Zemarai Khan Mohammed's humanity was stripped from him during this trial, and his physical being was reduced to evidence at a crime scene.

In a jury trial, Jamal Khan's presence in the courtroom would have been an unspoken but powerful reminder of the true loss of his brother's life. That presence was lost in this Zoom trial and I regret that very much. Your words were not lost on me, Mr. Khan. I heard you, and I thank you for your efforts to bring your brother back to life in this sentencing hearing.

I felt another moment of deep regret when I heard the Victim Impact Statement of Paris Vassel, Tyler McLean's mother. In her statement, Ms. Vassel said the following to me:

When did we decide it was ok to show favoritism by calling one of the defendants by his nickname

— so familiar as to be a term of endearment? On each occasion it ripped at my stomach and was such an affront that I will never recover.

During this trial, I came to refer to Abdirisaq Ali by a short form of his name. It was only when I heard the Victim Impact Statements that I realized how painful this had been to the family of Mr. McLean. I do not believe that I would have made the same mistake in an open courtroom. If I had used a term in open court which caused such pain to the mother of the deceased, I know that I would have seen the look of shock and dismay on her face and it would not have happened again. The loss of human connection which is at the heart of a murder trial caused me to inflict a completely unnecessary pain on a grieving mother and, for that, I can only offer my abject apology.

I have cited these as two examples of things that were lost in these virtual proceedings, but I know that there were many more. The only consolation that I can offer to both families is that, through Zoom, they were able to hear and see the same evidence that I heard, and they have a written judgment which represents my very best effort to explain why I came to the conclusions that I did. I do not ask you to agree with my conclusions, but I do hope that you will see that they have been written so that you, and all members of the community, will accept that however imperfect this trial may have been, it was, at its heart, fair.

The Facts

Tanade Mohamed has been convicted of murder and manslaughter. The facts of the case are discussed at length in my trial judgment which is reported at 2021 ONSC 5234.

The following is a summary of the facts most salient to sentencing.

Mr. Mohamed ordinarily resided in Edmonton. He

came to Toronto two days before the homicides to conduct a large cocaine transaction. Mr. Mohamed had been selling cocaine since 2015, and was on release for drug trafficking charges in Saskatchewan at the time of these events.

Shortly after arriving in Toronto, Mr. Mohamed obtained an illegal handgun. Mr. Mohamed testified that he habitually carried a firearm and believed that he needed one to protect himself.

Mr. Mohamed and Mr. Ali drove to the Rebel Nightclub in Toronto in the early morning hours of October 1st, 2017. They spent two uneventful hours in the club and left at the 3 a.m. closing time.

As they were standing in a roundabout outside the club, they became involved in an argument with Tyler McLean. The argument was related to Mr. Ali having spoken to one of the girls who were accompanying Mr. McLean at the club that night. Tanade Mohamed took exception to comments made by Tyler McLean and they had a brief but vociferous verbal argument. Zemarai Khan Mohammed was present during this argument and he acted to calm both men.

Mr. Mohamed and Mr. Ali left Mr. McLean and walked to the valet parking stand to retrieve their car, a rented Dodge Durango. While they were waiting for their car, Mr. McLean walked past and a further verbal exchange occurred. Tanade Mohamed angrily threw a water bottle over Tyler McLean's head. Mr. McLean turned back and the two men began to shove one another. Zemarai Khan Mohammed interceded to break up the fight and as he did so, Tyler McLean attempted to punch Tanade Mohamed. A paid duty police officer saw the developing fight and broke it up, telling the parties to go home.

Tyler McLean and Zemarai Khan Mohammed walked

into the parking lot and stopped midway through the lot to talk. Mr. Mohamed and Mr. Ali received their car from the valet attendant and followed them into the parking lot, parking a few spots away from where Mr. McLean and Mr. Khan Mohammed were standing. As they were driving towards Mr.

McLean, Tanade Mohamed retrieved a handgun from underneath his seat. Mr. Mohamed watched Tyler McLean for one minute and 45 seconds as he planned to attack him and terrorize him with the gun.

At 3:11:45, Tanade Mohamed burst out of the car and ran towards Tyler McLean. Zemarai Khan Mohammed punched Tanade Mohamed in the head to prevent him from reaching Mr. McLean. Mr. Mohamed took a step back, reached into his waistband and took out the handgun. He aimed the gun at Zemarai Khan Mohammed's head and fired, killing him instantly.

After shooting Mr. Khan Mohammed, Tanade Mohamed turned and ran back towards the open door of the Durango.

As he was getting into the vehicle, Tyler McLean attempted to frustrate his escape by jumping onto the side of the car, banging on the windows, and yelling to draw attention.

Tanade Mohamed fired at Mr. McLean through the open door of the car as it began to accelerate out of the parking spot. Tyler McLean was fatally struck in the chest by the shot.

He continued to cling to the car for a short distance before falling off and collapsing to the ground.

Police attempted to stop Mr. Mohamed's vehicle a short distance from the club. Mr. Mohamed ordered Mr. Ali to flee and Mr. Ali did, evading the police by driving at dangerously high speeds on the Don Valley Parkway. As they fled, Mr. Mohamed threw the gun out of the open window of the car. Over the next 36 hours, he and Mr. Ali

methodically destroyed all evidence which could connect them to the shootings at the Rebel Nightclub.

Mr. Mohamed was arrested on October 3rd, 2017.

He gave a lengthy statement to police in which he adamantly denied any involvement in the shooting. He advanced a false alibi for the night of the shooting and berated the interviewing detective for arresting the wrong man. He professed to be concerned that the families of the victims would not have closure due to the negligence of the investigators.

At trial, Mr. Mohamed testified that he acted in self defence when he shot Zemarai Khan Mohammed, and that the death of Tyler McLean was caused by the accidental discharge of his firearm. Both of those defences were rejected. He was convicted of second degree murder in the death of Zemarai Khan Mohammed. I could not be satisfied beyond a reasonable doubt that he intended to kill Tyler McLean when he shot at him to facilitate his escape.

Accordingly, Mr. Mohamed was found guilty of manslaughter in the unlawful killing of Tyler McLean.

The Lives of Zemarai Khan Mohammed and Tyler McLean

Zemarai Khan Mohammed was born in Afghanistan.

He and his brother worked with the Canadian military in Afghanistan for four years as interpreters. During his service in Afghanistan, Mr. Khan Mohammed helped to establish relationships of trust between Canadian soldiers and local Afghan authorities, relationships which were essential to maintaining the security of Canadian troops. Mr. Khan Mohammed worked in Southern Kandahar. On five occasions, Zemarai Khan Mohammed and his Canadian team were

ambushed by suicide bombers. They faced death or serious injury from land mines or other explosive devices every day of their service. When Zemarai and his brother moved to Canada, their parents celebrated the fact that they would be living in a safe country.

The character of Zemarai Khan Mohammed was not, and could not have been, an issue at this trial. It was apparent from the events leading up to his death that he acted in a peaceful manner that night, but that was all that could be discerned from the video.

A question arose during submissions as to why Mr. Khan Mohammed had punched Tanade Mohamed. The Crown argued vehemently that Mr. Khan Mohammed saw that Tanade Mohamed was running towards an unsuspecting Tyler McLean and he struck Mr. Mohamed solely to protect his friend. Having learned a great deal more about the character and experiences of Mr. Khan Mohammed, I understand better why the Crown was so insistent on that point. Zemarai Khan Mohammed had risked his life on countless occasions to protect Canadian soldiers serving in Afghanistan. His actions on the night of his death were entirely in keeping with his established character. It was in his nature to endanger himself to save a friend.

Canada benefits enormously from the immigration of courageous men and women such as Zemarai Khan Mohammed. It is especially painful to contemplate that after the many hazards that Mr. Khan Mohammed faced to keep Canadian soldiers safe in Afghanistan, he lost his own life in Canada in such a callous and senseless fashion.

Seventeen Victim Impact Statements were filed with respect to the death of Tyler McLean. The pain, sorrow and anger of those victims was so clear that it would be

impossible for anyone who watched the proceedings to forget what they saw and heard.

Tyler's mother, Paris Vassel, said the following in her statement:

How could I possibly express to you the loss of my son and his friend, whose deaths weigh on my mind and my heart and my soul. My life and the life of all of the people around me (because we all feel the devastation and loss) is immeasurably reduced, compromised, lessened, afflicted, harmed in the most profound way possible. Because the defendant made the decision to shoot a gun into Amir's head and into Tyler's heart - ensuring they would die and be lost to us forever. I am broken, body and soul.

Tyler McLean's father, Hugh McLean, spoke of the unending pain which he has felt since the death of his son:

The homicide of my oldest son on October 1st, 2017 was the worst day of my life. The cruelest and most devastating tragedy in my life and in the lives of my family. It changed all of our lives irrevocably. It's said that the death of one's child is the worst thing that can ever happen to a parent. Having been to therapy and grief counselling I now know that to be true.

The grief is unbearable and the pain never ceasing. Multiply that a hundredfold and you get close to the feeling of helplessness and despair, anger, rage and the primal instinct for revenge

that most fathers encounter when their child is a victim of homicide.

Many of the victims described sharing a spiritual bond with Tyler McLean. Although Tyler was extremely sociable and had friends far and wide, he also had many deep friendships which went all the way back to his childhood.

People didn't just like Tyler – they loved him and they relied on him for support of a kind that they simply could not find anywhere else. He was truly irreplaceable in the lives of his family and his many friends.

Of all the cruel facts in this case, perhaps the hardest to contemplate is the realization that if Tyler McLean had turned and run when he saw Zemarai Khan Mohammed shot, he would very likely be alive today. Instead of running away, he ran directly towards the danger, trying to do something to address the senseless killing of his friend. In this trial, I struggled to determine Tyler's movements in the seconds before his death. Having learned about Tyler's character in this sentencing hearing, it is easier to see what his movements must have been. Tyler McLean could not turn and run when his friend was brutally murdered. He instead ran towards the escaping van and did what little he could to prevent Tanade Mohamed from escaping the scene.

That decision tragically cost him his life, but it should be recognized for the heroic act of friendship which it was.

The Background of the Accused

Tanade Mohamed was 24 years old at the time of the offences. He is now 28.

He was one of five children born to a Somalian

couple who immigrated to Canada. His father left the family when Mr. Mohamed was young, and his mother raised the children on her own. Mr. Mohamed was a hyperactive child who had difficulty controlling his behaviour from the outset of his elementary education. He was prescribed Ritalin in Grade 3, but his mother refused the treatment, a decision which she now regrets. According to Mr. Mohamed, his mother beat him as a child and the physical abuse only ended when he grew too big to be beaten.

Mr. Mohamed was expelled from school in Grade 12 after becoming involved in a physical altercation with a vice principal. He left home after the expulsion. In his trial evidence, he explained that decision in the following terms:

I ended up just running away from home. I ended up being tired of hearing all the negative things. I just got tired of, of being around the constant negativity.

Mr. Mohamed recalled finding some employment after he left high school including demolition work, an apprenticeship in mechanics and car detailing. All of those opportunities ended in 2014. He began to sell cocaine in 2015, and in 2016 he began to carry handguns.

Mr. Mohamed was arrested on October 3rd, 2017.

He has been in custody at the Toronto South Detention Centre for over four years awaiting his trial. His time at the jail has undoubtedly been difficult, made more so by the Covid pandemic. Mr. Mohamed himself contracted the virus while in custody at the South Detention Centre.

Mr. Mohamed had no criminal convictions at the

time of the offences and he is therefore to be sentenced as a first offender. He is not, however, a man of unblemished character. He acknowledged at trial that he had been selling large amounts of cocaine for at least two years prior to his arrest. He was on release from a Saskatchewan court for trafficking at the time of the homicides and his bail included conditions that prohibited him from having a cell phone or weapons. He violated both of those terms on the day of these homicides when he engaged in a large cocaine transaction in London, Ontario. Mr. Mohamed admitted in his evidence that he had been in possession of a number of different illegal handguns in the year preceding these homicides and, about six months prior to the homicides, he used a gun to threaten a group of men in a dark parking lot.

Defence counsel have filed 20 letters of support for Mr. Mohamed. In general, the letters indicate that during his time in custody, Mr. Mohamed has experienced a religious awakening. He has taken on a role of counselling others against following his path and has expressed great remorse for his own actions. He has become an inmate advocate for PASAN, an organization devoted to educating inmates about the risks of HIV and Hepatitis C. Mr.

Mohamed's sister, Amina, works for PASAN. Three of the letters of support were filed by her co-workers. Defence counsel submit that these letters provide robust evidence of Mr. Mohamed's rehabilitative potential.

I accept that Mr. Mohamed has a large and successful family who are committed to supporting him. I also agree that this will be an important factor when he is eventually reintegrated into the community. I do, however, have some reservations about the support letters.

The letters written by Mr. Mohamed's family speak glowingly of his conduct prior to his arrest. His sister Jasmine's statement is representative of the support letters from the family. She wrote:

I watched my brother who transformed into becoming a model for his siblings and a support system for my mother. He not only emotionally supported our family but financially as well.

It is difficult to reconcile Jasmine's statement with Mr. Mohamed's trial evidence that he left the family home because of the constant verbal abuse and negativity which he suffered while he lived there.

Jasmine's comments about her brother's generosity recur in other letters from family and friends. One letter from a close friend recalled an occasion when he had traveled with Mr. Mohamed to Los Angeles and one of their fellow travelers discovered that he did not have enough money to stay for the entire trip. He lauded Mr. Mohamed's generosity in covering the friend's expenses.

While this may illustrate a generous nature, it must be recalled that Mr. Mohamed had only a few sporadic jobs prior to becoming a full-time cocaine dealer in 2015. The financial support that he was able to offer to his family and friends came from drug trafficking. His family had to have been aware of the source of his income. Mr.

Mohamed was arrested on drug trafficking charges in Saskatchewan in 2016. In February 2017, he told his sister Amina about the incident at a nightclub in Edmonton where he had pointed a handgun at a group of men who were threatening him. Amina Mohamed testified that she told her brother that

this was a dangerous situation and she encouraged him to go back to school and "do something legitimate". She at least was aware that Mr. Mohamed was selling drugs for a living.

Mr. Mohamed comes from a very successful immigrant family. They wish to support their brother and I don't doubt the sincerity of that offer. I am mindful, however, that the family turned a blind eye to Mr. Mohamed's criminal activity and even came to depend on his generosity when it was self-evident that his income was obtained by illegal means.

Aggravating and Mitigating Factors

this case.

There is a long list of aggravating factors in

I begin with Mr. Mohamed's circumstances at the

time of the offence:

• He had been living a criminal lifestyle for at least two years prior to the offence

• He habitually carried a firearm and had previously used a gun to threaten unarmed opponents

• He was on bail for drug trafficking and was subject to a court order not to carry any weapon

The chain of events which led to these two homicides began with an insignificant dispute. That dispute should have been resolved by the intervention of a uniformed police officer who separated the parties and sent them on their ways. Tanade Mohamed refused to accept the dispute was over and instead he followed Tyler McLean into the parking lot and contemplated how he would terrorize him with

a gun. He knew that both victims were unarmed and unaware of his presence. When he left his vehicle, he did so with the intention of initiating a fight with Tyler McLean. His plan was to produce the gun and use it to dominate both Mr. McLean and Mr. Khan Mohammed.

When Zemarai Khan Mohammed interfered with his plans, Tanade Mohamed intentionally shot him in the head. Zemarai Khan Mohammed was an utterly innocent party. In the moments leading up to his death, he acted solely as a peacemaker, calming not only his friend Tyler McLean, but also Tanade Mohamed. Mr. Khan Mohammed was defenceless when he was shot to death.

Mr. Mohamed's first thought after taking the life of Mr. Khan Mohammed was to escape. Tyler McLean acted to prevent his flight by jumping onto the side of the Durango, banging on the windows, and trying to draw attention to the car. Mr. Mohamed responded to this heroic effort by shooting Tyler McLean at close range, striking him directly in the chest and causing his death. The evidence fell just short of proof beyond a reasonable doubt that Mr. Mohamed also intentionally killed Tyler McLean.

The shooting took place in a busy nightclub parking lot. Many bystanders were endangered by the shooting. An eyewitness to the shooting, Rasha Alnaaj, testified to the profound impact that it had on her mental health. The court can infer that it had a similar effect on the two young women who were with Tyler McLean that night, Holly Rogalski and MacKenzie Cornall.

Mr. Mohamed spurred Mr. Ali to flee the police at high speed, further endangering the public. He destroyed any physical evidence which connected him to the homicides and gave a false alibi when apprehended by police.

These events occurred in a city which has been plagued in recent years by similar instances of unprovoked shootings in public areas.

One aggravating factor which, in my view, demands further elaboration is the role that drug trafficking played in these homicides. In his testimony in chief at trial, Mr. Mohamed was asked about his possession of guns. He said the following:

I, I started to carry guns in, sometime in 2016, like closer to like the end of say, maybe, like the fall of 2016 anyway, and it was from that time on it was just for my own safety with my various drug dealings I was doing. In the streets, you know, it's, it's kind of

a common place to, to be robbed and for you to find yourself in situations and sometimes carrying a gun for protection is, is something you have to do.

There is no element of apology in that response. Mr. Mohamed states as a matter of fact that because he sold cocaine, he had to carry a gun. This is an almost universally held belief amongst those who traffick in significant amounts of cocaine and similar street drugs.

The case of Tanade Mohamed may seem like a singular and horrifying aberration to the families of the two deceased, but he is a very familiar figure to those in the justice system. Tanade Mohamed was born into a fractured and abusive home. His behavioural troubles were evident as early as kindergarten, and by Grade 3 they were so entrenched that he was prescribed medication. He was

expelled from high school after a physical altercation with a vice-principal. Serious behavioural problems of this kind are persistent personality traits.

After leaving high school, Mr. Mohamed made a few attempts to find legitimate employment but with no success. This also is not surprising. The same characteristics which prevented him from succeeding at school likely resurfaced at work. When he failed to succeed in the work world, Tanade Mohamed turned to the easy money of drug trafficking.

Consider Mr. Mohamed's lifestyle at the time of these homicides. He travelled frequently. He could afford to be generous with friends and family and he won their affection with gifts. When he flew to Toronto, he rented a large and expensive car. When he arrived at the Rebel Nightclub, he left his car with valet parking and took $400 in cash out of an ATM. This lifestyle would never have been attainable to someone earning an hourly wage in Edmonton.

Mr. Mohamed was thoroughly invested in the lifestyle of being a drug dealer and, in his view, that entitled him to carry a gun.

Tanade Mohamed is the very profile of a cocaine dealer: a young man with an unstructured upbringing and poor behavioural controls who preferred the lavish lifestyle of selling cocaine to the rigours of daily employment. These are the last people in the world that should be carrying around guns. From the time that he was in Kindergarten, people knew that Tanade Mohamed could not control his temper. And yet he, of all people, routinely carried a gun.

In his Victim Impact Statement, Tyler McLean's stepfather, John Moynihan, described his amazement that "a dis" such as what occurred at the hotdog stand could have prompted a murder. We all share Mr. Moynihan's amazement

yet the casebooks filed by both the Crown and the defence for this sentencing hearing are replete with similar cases where seemingly inconsequential slights have given rise to homicidal gun violence. The common element in all those cases is that the accused was involved in the drug trade and, for that reason, had a gun immediately at hand when he perceived some slight on the street.

In my view, Tanade Mohamed's involvement in the drug trade was the pivotal element of these homicides, as it is in so many cases of senseless murder. The fact that he engaged in this lifestyle without regard to the potential consequences contributes to his moral culpability for the offences. It also gives rise to the need for a denunciatory sentence which will send a message to the many other young men like him who are involved in the drug trade. The message is that drug dealers have no licence to carry firearms, and where the foreseeable consequences of carrying guns do occur, the courts will impose sentences that reflect that highly aggravating factor.

Mitigating Factors

The principal mitigating factor is Tanade Mohamed's relative youth at the time of the offences and the fact that he had no criminal record. At the time that he left the Durango to attack Tyler McLean, he did not intend to kill him. The murder of Zemarai Khan Mohammed can fairly be described as impulsive, and there is no evidence of planning. The same can be said of the unlawful killing of Tyler McLean.

Mr. Mohamed has a large and pro-social family which is committed to assisting him in his rehabilitation.

There are good role models within his own family that may guide Mr. Mohamed towards a law-abiding lifestyle.

It is further submitted by the defence that Mr. Mohamed has shown true remorse for his actions and that his remorse was evident in his testimony at trial. In his statement to the Court, Mr. Mohamed said that he is deeply sorry for having caused the deaths of the two victims. He acknowledged that his actions have devastated both families and robbed them of the love and companionship of their sons. Although I accept the sincerity of those words, I do not agree that they exhibit genuine remorse. There is a difference between expressing sorrow and exhibiting remorse.

Mr. Mohamed's claim to remorse must be measured against his conduct in the aftermath of the killings and in the four years since. His very first actions after the killings were to flee the scene and destroy the evidence of his crimes. When he was apprehended, he made a determined effort to escape liability by advancing a false alibi. At his trial, he claimed that Zemarai Khan Mohammed had rushed at him after the initial punch and he only fired the gun to protect himself. He testified that the killing of Tyler McLean was caused by the accidental discharge of his gun.

The Crown disproved those defences beyond any reasonable doubt. Even in his purported statement of remorse, Mr. Mohamed reiterated his claim that he had never intended to kill anyone.

The Crown is obliged to prove the guilt of an accused beyond any reasonable doubt and no defendant is penalized for having put the Crown to the strict proof of its case. But in assessing the validity of Mr. Mohamed's claim of remorse, I note that he continues to this day to take every possible opportunity to deny responsibility for

his actions and to avoid accountability. I accept that Mr. Mohamed wishes that these events had never occurred, but I do not see evidence of genuine remorse at this time.

Parole Ineligibility upon Conviction for Second Degree Murder

The mandatory sentence upon conviction for second degree murder is life imprisonment. Tanade Mohamed is subject to imprisonment for the rest of his life. Whether or not he is released will depend on the findings of the National Parole Board, and his liberty will be subject to review by that Board for the rest of Mr. Mohamed's life.

Under section 745.4 of the Criminal Code, this Court may impose a period of parole ineligibility ranging from a minimum of 10 years to a maximum of 25 years. In determining an appropriate parole ineligibility period, the Criminal Code directs me to consider the character of the offender, the nature of the offence and the circumstances surrounding its commission. There are no jury recommendations to consider.

Section 718 of the Code directs that the fundamental purpose of sentencing is to protect society, to contribute to respect for the law and to maintain a just, peaceful, and safe society. The sentence must denounce unlawful conduct and the harm done to both the victims and to the community. It must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The law with respect to determining parole ineligibility upon conviction for second degree murder was comprehensively reviewed in the recent decision of

Hayles-Wilson, 2018 ONSC 4337. In that case, Justice Code

identified three broad bands of parole ineligibility which have developed in cases involving brazen public shootings.

The low end of the range is 12 to 14 years.

Sentences in this range have been imposed in unusual circumstances where the facts of the case were less aggravating or there were significant mitigating factors such as good evidence of rehabilitation.

The top end of the range is 18 to 22 years. The top end sentences have typically been imposed on those with lengthy or serious criminal records who have committed murder in circumstances which are dangerous to the public, involving multiple victims and may have gang-related motives.

Defence counsel submit that Mr. Mohamed's case falls in the mid range and that an appropriate parole ineligibility period is 14 years. That submission relies upon the absence of a prior criminal record, the impulsivity of the murder, the relative youth of the defendant and the absence of any gang-related motive.

One mid-range case which was provided by the Crown has many similarities to the case at bar. In Doucette, 2015 ONCA 583, the accused became involved in an altercation with another man in a bar. The accused took the worst of that altercation and he decided to seek revenge.

He retrieved a firearm from his home, returned to the club and waited for the victim to leave the club. As the victim left, the accused fired three shots into his chest causing the victim's death. A fourth shot hit the victim's friend causing further minor injuries. The accused fled after the shooting and he disposed of the gun. He was on bail at the time of the offence and was prohibited from having weapons in his possession. The accused acknowledged in his evidence

at trial that he routinely carried a gun. All of these facts align very well with the case at bar. The trial judge imposed a 15 year period of parole ineligibility and the Court of Appeal upheld that sentence.

Hayles-Wilson also has similarities to Mr.

Mohamed's case. The accused was carrying a loaded handgun when he attended a basketball tournament held at a community centre. He met with the victim in a crowded area outside of the centre and fired multiple shots at close range, killing the unarmed victim. The jury acquitted the accused of first degree murder but the Court found that there was, nevertheless, substantial evidence of planning. The accused fled from the scene and remained at large for ten months with the assistance of gang associates. He was 23 years old at the time of the offence and, like Mr. Mohamed, had no prior criminal record. He was, however, engaged in a criminal lifestyle which included drug trafficking. Justice Code imposed the same 15-year parole ineligibility period.

In my view, these and other cases provided by both parties would provide good authority for a parole ineligibility period of 15 years if Tanade Mohamed had only killed one person. But after murdering Zemarai Khan Mohammed, Tanade Mohamed killed Tyler McLean with an intentional gunshot at close range. The most favourable interpretation of the facts for Tanade Mohamed is that he shot at Tyler McLean to facilitate his escape and without having formed an intention to kill. It was that possibility which led to Mr. Mohamed being acquitted of murder by the narrowest of margins.

The law precludes the imposition of a sentence consecutive to life and, accordingly, the sentence imposed for the unlawful killing of Tyler McLean must run

concurrently to the life sentence passed for the murder of Zemarai Khan Mohammed. In assessing an appropriate period of parole ineligibility, however, I am required to give due accord to the intolerably aggravating fact that in order to escape responsibility for shooting a defenceless and innocent victim, Mr. Mohamed shot and killed a second defenceless and innocent victim. Section 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. To meet that requirement, the parole ineligibility period must take into account the fact that the murder was accompanied by a second unlawful killing.

In the case of Sparks-MacKinnon, 2019 ONSC 3436, Justice MacDonnell sentenced an offender who had been convicted of two counts of second degree murder. The facts in that case were extremely aggravated. The victims were complete strangers to the accused. They met on a busy Toronto street at 3 a.m. and, for reasons which defy any explanation, the accused and his associates opened fire on the defenceless victims. Mr. Sparks-MacKinnon shot both victims as they ran for their lives. Two bystanders were also hit by stray bullets. The accused had a lengthy record for violent offences and had previously served a penitentiary sentence for firearms offences.

In Sparks-MacKinnon, the Court did have jurisdiction under s. 745.51 to impose consecutive periods of parole ineligibility arising from the two convictions for murder. Justice MacDonnell declined to impose consecutive parole ineligibility periods and he instead ordered that the accused serve two parole ineligibility periods of 22 years concurrently. He explained that decision at paragraphs 77 and 78 of his Reasons:

[77] The murders arose from a single series of closely related events that unfolded over the course of about 20 to 30 seconds. Many of the circumstances that tend to aggravate the gravity of one murder such as that the shooting was unprovoked, the victims were unarmed and defenseless, the gunfire erupted in a public location, the lives of a multitude of innocent persons were put in danger, and a total of 16 shots were fired also tend to aggravate the gravity of the other. Determining an appropriate period of parole ineligibility for each murder standing alone, and then directing that the periods be served consecutively, could result in a double-counting of the aggravating circumstances and a total period of parole ineligibility that is disproportionate to Sparks- MacKinnon's overall culpability.

[78] If Mr. Sparks-MacKinnon were facing sentence for one murder, I would have concluded, based on the authorities cited by Justice Code in

Hayles-Wilson, that a period of parole ineligibility of 16 to 18 years would have been appropriate. However, he is to be sentenced for two murders, and the principle of proportionality requires that the total period reflect the fact that he killed two people.

In my view, those comments are equally applicable to the case at bar. There are many factors which distinguish Mr. Mohamed from Mr. Sparks-MacKinnon. Mr.

Mohamed has no prior criminal record and has significant rehabilitative potential, whereas Mr. Sparks-MacKinnon could be described as the worst possible offender. In the Sparks- MacKinnon case, two bystanders were hit by stray bullets.

Although Mr. Mohamed's offences also took place in a highly public area, there were no injuries to bystanders. These highly aggravating circumstances explain why Justice MacDonnell increased the parole ineligibility period to the highest end of the range.

Based on my review of the authorities and the facts of this case, I believe that a fit and appropriate period of parole ineligibility for the second degree murder of Zemarai Khan Mohammed is 18 years. This sentence is at

the highest end of the range for a first offender and it reflects the gravity of Mr. Mohamed's offences. It is not, however, a crushing sentence. Mr. Mohamed will be eligible for parole when he is 42 years old. Depending on his approach to serving the sentence, it is possible that Mr.

Mohamed will be able return to the community for the second half of his life. The sentence leaves hope and opportunity ahead for Mr. Mohamed, something which cannot be said for either of his young victims or their families.

The unlawful killing of Tyler McLean cannot result in a consecutive sentence, but that does not mean that the sentence to be imposed is inconsequential. I have no doubt that the National Parole Board will carefully consider the killing of Mr. McLean in deciding whether and under what terms Mr. Mohamed may ultimately be released. I will impose a concurrent sentence of 15 years imprisonment for the manslaughter conviction.

There will also be an order for the taking of Mr. Mohamed's DNA to be held in the National DNA Databank and a lifetime weapons prohibition.

-- Transcriptionist's note: Brief discussion re: imposition

of a no-contact order

THE COURT: So I will simply summarize what was said earlier and that is that the Crown has forwarded to me by e-mail a list of named individuals that they would ask that Mr. Mohamed be forbidden to contact during the time that he is serving sentence. Mr. Gross-Stein has indicated that he has no submissions with respect to the names of those who appear on the list, and

so I am indicating that I will make that order. I have forwarded the e-mail directly to the Registrar, and it is agreed by all parties that

there is no need to cite the names on the list on the record. They will be on the order which will be served on Mr. Mohamed, and that order is a matter of public record.

Form 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Vanessa Giorno, certify that this document is a true and accurate transcript of the recording of R. v. MOHAMED, in the Superior Court of Justice, held at 361 University Ave, Toronto, Ontario, taken from Recording

4899_6-3_20211014_093158 10_BAWDENPE, which has been certified in Form 1.

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(Date) Vanessa Giorno