R. v. Younus, 2022 ONSC 3895

COURT FILE NO.: CR-18-9410

DATE: 2022-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

MOHAMMED YOUNUS

The Honourable Justice Catrina D. Braid

Michael Michaud and Ryan Iaquinta, Counsel for the Crown

Barry Fox and Arif Hussain, Counsel for Mr. Younus

HEARD: June 16, 2022

REASONS FOR SENTENCE

I. OVERVIEW

1Mohammed Younus stabbed and killed his brother, Shamsul Alamshah. Mr. Younus agreed that his actions caused the death of his brother, but argued self-defence and provocation. For written reasons cited at 2022 ONSC 2078, Mr. Younus was convicted of second-degree murder.

2Mr. Younus will receive the mandatory sentence of imprisonment for life. For a second-degree murder conviction, the period of parole ineligibility runs from a minimum of 10 years to a maximum of 25 years. The sole issue before me at this sentencing is the length of time that Mr. Younus will be ineligible for parole, which must be fixed at between 10 and 25 years.

3The Crown submits that the period of parole ineligibility should be fixed at 14 years. Defence counsel urges me to impose the minimum 10-year period.

4For the reasons set out below, I find that the appropriate period of parole ineligibility is 13 years.

II. GOVERNING PRINCIPLES

5The mandatory sentence for murder is imprisonment for life. When determining the parole ineligibility period, the Criminal Code, RSC 1985, c C-46, s. 745.4, mandates that I take into account the nature of the offence, the circumstances surrounding its commission, and the character of the offender. There are no jury recommendations to be considered in this case as it was a judge alone trial.

6These factors encompass all of the traditional factors relevant to sentencing, such as punishment, deterrence, denunciation, the protection of society, and the prospects for rehabilitation. This will also involve a consideration and weighing of mitigating and aggravating factors. The determination of the appropriate period of parole ineligibility is highly fact-sensitive: R. v. Kim, 2014 ONSC 2043, [2014] O.J. No. 1783, at paras. 5-6.

7It is not necessary to establish that there are unusual circumstances in order to justify a departure from the minimum 10-year period of ineligibility. The power to extend the period of parole ineligibility need not be sparingly used: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, at paras. 26-27, 31.

III. THE CIRCUMSTANCES OF THE OFFENCE

8A detailed description of the circumstances of the offence is set out in my judgment and will not be repeated here. However, I shall provide a summary of the facts for purposes of the reasons for sentence.

9Mr. Younus and his brother Shamsul Alamshah had a good relationship. Although Mr. Younus testified that his brother was physically abusive toward him for many years, I did not accept this evidence at trial.

10In 2017, Mr. Younus demanded immediate repayment of $27,000 that he had loaned to Mr. Alamshah. Mr. Younus was angry with his brother for failing to follow through with helping Mr. Younus sponsor his son to Canada. Mr. Younus demanded that his brother return the money and said “sell your house or sell your wife.” Mr. Younus was not in need of any money.

11Mr. Alamshah and his wife Maria Fayyaz withdrew money and sold valuable personal possessions to repay the loan. On August 27, 2017, they brought $27,000 to Mr. Younus’ house. The brothers’ sister-in-law, Almas Khatun, went with them. When they arrived at Younus’ house, they started counting the money.

12When Mr. Younus walked into the room, he was mean and hostile. He poked or struck Ms. Fayyaz, struck his wife Ayasa Khatun, and said mean things to Almas Khatun, making her cry.

13Mr. Alamshah struck Mr. Younus, either in defence of his wife or as an immediate reaction to Mr. Younus being mean and hostile upon entering the room. Both brothers were screaming. They began grabbing and punching each other. The women were eventually able to break up the fight. No one was seriously injured as a result of this altercation.

14Almas Khatun, Ms. Fayyaz and Mr. Alamshah hastily left Mr. Younus’ home and headed for their car in the parking lot. They left their shoes and Mr. Alamshah’s cell phone in the house. Mr. Alamshah was in retreat from the fistfight.

15After Mr. Alamshah left the residence, Mr. Younus was angry and embarrassed over losing the fight inside his home. He also wanted his money and was not going to allow Mr. Alamshah to leave with it. He ran to the kitchen and chose a large, sharp knife. He was intent on causing fatal harm.

16Mr. Younus left the house and came running toward Mr. Alamshah, stabbing at him multiple times. Many of the initial stabs were blocked as Ayasa Khatun, Ms. Fayyaz and Mr. Alamshah struggled to push Mr. Younus away.

17Mr. Younus’ wife Ayasa Khatun tried to take the knife from him and was screaming at him to stop. He had already stabbed Mr. Alamshah once. She told Mr. Younus that she had the money. She said, “why are you hitting your brother and why did you bring the knife?” He did not listen to his wife and went at his brother again.

18Mr. Younus cut his wife’s hand when she was trying to take the knife away from her husband. Mr. Younus repeatedly tried to stab at his brother, even after he had cut his wife.

19Mr. Younus stabbed Mr. Alamshah four times. The first three wounds were not life-threatening. After they struggled for awhile, Mr. Alamshah was lying with his back to the ground. Mr. Younus got on top of Mr. Alamshah and plunged the knife into his chest, which was the fatal blow to the victim’s heart.

IV. CIRCUMSTANCES OF THE OFFENDER

20Mr. Younus is 48 years old. He has the equivalent of a Grade 1 education. He has no prior criminal record.

21Mr. Younus had a difficult childhood and lost his biological mother at a young age. He has given conflicting reports regarding health issues at his birth and in childhood, and alleged abuse inflicted on him as a child. Unfortunately, his version of events could not be verified by family members.

22Mr. Younus is a member of the Rohingya ethnic group. The Rohingya people have been victims of violence and ethnic killings in Myanmar (formerly Burma) for many years. Many have fled to Bangladesh, where they have been confined to refugee camps.

23Mr. Younus was born in Myanmar and fled to Bangladesh, where he lived in a refugee camp from 1992 to 2008. Life in the refugee camp was harsh and malnutrition was common. He witnessed people being killed and assaulted. He married his current wife in 2004 and had a surgical procedure that same year for abdominal issues. He came to Canada as a refugee in 2008 and is now a permanent resident.

24At the time of the incident, Mr. Younus lived in Kitchener, Ontario, with his wife and four children. He also has a 27-year-old son from his first marriage who lives in Bangladesh.

25Since arriving in Canada, Mr. Younus has received social assistance and lived in subsidized housing. He appears to be somewhat of an entrepreneur, having sold pickles and transported goods to earn money when in Bangladesh; and doing farm labour and selling beetle nuts to the South Asian community in Canada. The presentence report described his employment history as subsistence-level. However, he was able to save $27,000 that he loaned to his brother, which was at the heart of the dispute in the matter before the court.

V. AGGRAVATING AND MITIGATING FACTORS

26In considering the nature and circumstances of the offence, it is appropriate to take into account the aggravating and mitigating factors.

27Mr. Younus was convicted following a trial. I will not treat this as an aggravating factor. However, he is not entitled to any mitigation that may have been available after a plea of guilt.

28There are numerous aggravating factors in this case:

1. Mr. Younus was the primary aggressor at all times on the day of the incident, and was belligerent and disrespectful with all adults who were present. He slapped his own wife, slapped or poked Ms. Fayyaz, and belittled Almas Khatun. This led Mr. Alamshah to punch Mr. Younus, which started the fistfight inside the house. When Mr. Alamshah left the house, he wanted nothing to do with the fight and was trying to get away. Mr. Younus chose a large knife, chased down Mr. Alamshah, and was the sole aggressor outside the home. Mr. Alamshah was merely trying to save himself from being stabbed.

2. Mr. Alamshah was unarmed and in retreat. Mr. Younus was safely inside his home after the brief fistfight had ended and Mr. Alamshah had left in a hurry, leaving behind his cellphone and shoes. Mr. Younus armed himself with a large knife and attacked Mr. Alamshah.

3. This was a public killing, with at least one child (likely more) in the vicinity. Mr. Younus was reckless or indifferent as to who saw the murder.

4. Mr. Younus murdered Mr. Alamshah in front of his brother’s wife, Ms. Fayyaz. She attempted to stop the attack but was unable to do so. She held her husband in her arms as he took his last breath.

5. Mr. Younus stabbed at Mr. Alamshah numerous times, even though Mr. Alamshah, Ms. Fayyaz, and Ayasa Khatun tried to block him and stop him. The women were hurt or threatened by Mr. Younus as they tried to render assistance to Mr. Alamshah. Mr. Younus cut his wife’s hand with the knife and said to Ms. Fayyaz, “If you try to save your husband I will stab you the same way.” Unfortunately, the women were unsuccessful given Mr. Younus’ persistence and determination to murder his brother. I find that it is a significant aggravating feature that these women were harmed or threatened by Younus when they tried to stop him from committing murder.

6. Mr. Younus stabbed Mr. Alamshah four times, with the final wound being the fatal blow.

7. Mr. Younus was partially motivated to attack Mr. Alamshah because he wanted to take the money from his brother by force if he had to. This had an overtone of robbery.

8. Mr. Younus admitted that he went after his brother because he wanted his money back and was not going to let his younger brother disrespect him by fighting him or going back on his promise to repay him. He was an angry man seeking revenge on his brother after losing a fight and doing whatever he could to get his money back. His actions were cold, calculating, and determined.

9. Mr. Younus did not demonstrate any concern for the victim in the immediate aftermath of the stabbing. He did not call 911 nor did he render assistance.

10. Mr. Younus took steps in an attempt to cover up his crime. He had the presence of mind to immediately wash blood off his hands and body, and change out of his bloodstained clothes after the killing. He rinsed the knife in the kitchen sink. The efforts to avoid detection are somewhat aggravating, but not a significant factor in my analysis. Panic at the consequences of what he had done no doubt played some role in Mr. Younus’ actions immediately after the murder.

11. These events had a significant impact on Mr. Alamshah’s widow, Ms. Fayyaz, who provided a moving victim impact statement. It is clear that Mr. Alamshah was extremely important to her and that they loved each other. She describes Mr. Alamshah as a very good man who always helped people. He was very loving, respectful, and soft-hearted. They had dreams of having children and living happily, but now her life has been ruined. She cannot forget the memory of her husband in her lap, covered in blood, as he died. She told the court that Shamsul was her universe and her good friend. Losing him was very painful and she feels as though she is suffocating.

It is clear that Mr. Alamshah was a man who selflessly cared for his wife and others. His tragic and violent death has had a significant impact on his widow. Shamsul Alamshah was a relatively young man whose bright future was taken away. Two brothers escaped horrific living conditions and arrived in Canada as refugees, only to have their extended families forever torn apart by Mr. Younus’ brutal, violent, and senseless criminal act.

12. The Crown argues that this case is quasi-domestic. However, the relationship between the brothers is not a spousal type of relationship. Aggravation in spousal or common-law assault is codified in section 718.2(a)(iii) of the Criminal Code. The aggravation on sentence in domestic assault cases stems from the pervasive problem of domestic violence in our society: R. v. Lavallee 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 at para. 33, which is not applicable in this case. Although I do not accept that this is a case of domestic violence, I accept that there is some aggravation in any familial homicide. Mr. Younus had a duty to protect and care for his own brother.

29The following are mitigating factors in this case:

1. Mr. Younus has no prior criminal record.

2. Mr. Younus has faced upheaval and trauma in his life. He lived in a refugee camp in Bangladesh after his family fled from persecution in Myanmar, and then came to Canada as a Rohingya refugee.

3. Mr. Younus says that his goal is to eventually be released from custody, reunite with his wife and children, restart his business, live a law-abiding life again and increase his faithfulness to Allah. His wife declined to be interviewed for the presentence report, so I am unable to assess whether he has the support of his family. I therefore place little weight on this factor.

4. Mr. Younus showed some remorse for his actions. However, I am concerned that he did not make a clear expression of remorse. I make the following observations on this issue:

i. At the outset of trial, Mr. Younus agreed that he caused the death of his brother and that he was at least guilty of manslaughter. He testified that he was provoked by his brother’s actions and that he was only acting in self-defence. Mr. Younus’ version of events was wholly at odds with the numerous witnesses who observed the killing and was completely rejected by the court. At the sentencing hearing, he acknowledged that there was no excuse for his actions and that it was his fault.

ii. At trial, Mr. Younus testified that he loves and misses his brother. However, he also called his brother a thief, a robber, and the devil. Mr. Younus fails to appreciate the seriousness of his actions, which causes concern regarding his potential for rehabilitation. At the sentencing hearing, he told the Court and the Crown that he was sorry. This apology rang somewhat hollow as he also displayed contempt for Mr. Alamshah at trial and blamed him for what happened.

iii. During the trial, Mr. Younus stated that he could see and hear his deceased brother in the courtroom. In a court-ordered fitness assessment, Mr. Younus was found fit to stand trial. Forensic psychiatrist Dr. Andrea Bunker commented that Mr. Younus’ ability to see and hear his brother was in the context of what seemed to be a complicated bereavement: Mr. Younus conveyed a clear sense of love, anger and loss associated with his brother and his death. This demonstrates some remorse.

iv. I watched Mr. Younus carefully throughout the trial. He expressed emotion and sadness when talking about his own plight and difficult life. He was more concerned about the hardship that he had suffered and his own loss of his brother than he was about the deceased’s loss of life and the extraordinary loss suffered by his brother’s widow. Unfortunately, Mr. Younus does not have much insight and still speaks of himself as the victim.

v. During the trial, Mr. Younus loudly interrupted the evidence of Mr. Alamshah’s widow Ms. Fayyaz, accusing her of being incorrect and untruthful. These angry and intimidating outbursts happened on multiple occasions, despite the Court and defence counsel repeatedly warning Mr. Younus that he had no right to interrupt the witness. He has not expressed a genuine apology toward Ms. Fayyaz, whose life has been irreparably damaged by his actions.

Mental Health Issues as a Factor

30Defence counsel states that Mr. Younus may suffer from an unidentified mental health issue and asks the court to take that into consideration when imposing sentence. Counsel submits that the general rule of the 10-year mandatory minimum term should be applied, leaving the question of release to correctional authorities. Counsel relies on three cases in support of this proposition: R. v. Chen 2019 ONSC 3952, [2019] O.J. No. 3373; R. v. Chen 2015 ONSC 3759, [2015] O.J. No. 3134; and R. v. Salifu 2019 ONSC 483, [2019] O.J. No. 414.

31In each of those cases, the convicted murderer was suffering from a mental illness at the time of the offence and the mental disorder was causally linked to the murder. In this case, Mr. Younus is not necessarily a well man emotionally, he is easily excitable and given to anger and emotional outbursts. However, there is no evidence that it was a mental health issue that motivated his actions that day, which must be proven on a balance of probabilities.

32Forensic psychiatrist Dr. Julian Gojer conducted a psychiatric evaluation of Mr. Younus in March of 2020. Dr. Gojer stated that Mr. Younus was not suffering from any psychotic disorder or major mood disorder. In this case, there is no diagnosed mental illness that would diminish Mr. Younus’ responsibility and moral blameworthiness.

33Although Dr. Gojer describes Mr. Younus as low-functioning, he has not been tested for intellectual capacity or cognitive impairment. I have observed that his memory is very good when it comes to calendar dates. He appears to have an entrepreneurial ability and managed to save a relatively large sum of money that he loaned to his brother.

34I accept that Mr. Younus may have an undiagnosed mental health issue, but I am unable to place much weight on this issue on the sentencing. However, I am concerned about how any mental health issue, including possible post-traumatic stress disorder, may impact his rehabilitation. I am hopeful that correctional authorities will further explore Mr. Younus’ mental health issues and provide supports as needed.

VI. APPROPRIATE SENTENCE

35I have reviewed the cases submitted by counsel, which provide a range of parole ineligibility between 10 to 17 years. Many of the similar cases involving disagreements or fights that end in a stabbing death involve the court setting parole ineligibility between 12 to 14 years. Of course, each case turns on its facts.

36As I stated previously, there is no evidence in this case that a mental health issue contributed to the murder. In light of the numerous and significant aggravating factors, the parole ineligibility period must be set at more than the minimum 10 years.

37Taking all of the factors into account, I find that the appropriate sentence is life imprisonment with no eligibility for parole until Mr. Younus has served 13 years. This does not mean that Mr. Younus will be released after serving 13 years; it only means that this is when he first becomes eligible for release. Whether he will be released will be up to the Parole Board and that decision will be based, in part, on how Mr. Younus conducts himself between now and then.

38I therefore sentence Mr. Younus to life imprisonment, without eligibility for parole for 13 years.

39In addition, because Mr. Younus has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a s.109 weapons prohibition order is mandatory. There will be an order pursuant to section 109 of the Criminal Code prohibiting Mohammed Younus from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life.

40Murder is a primary designated offence, and a DNA order is mandatory unless the offender establishes that the order should not be made. Mr. Younus has not challenged the DNA order nor sought to meet his onus. Therefore, there will be an order pursuant to section 487.051 of the Criminal Code authorizing the taking from Mohammed Younus for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that is reasonably required for that purpose.

41Finally, there will be an order pursuant to section 743.21 of the Criminal Code prohibiting Mohammed Younus from communicating directly or indirectly with Ms. Fayyaz while serving his sentence.

Braid, J.