COURT FILE NO.: CR 20-219

DATE: 20220117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Alexander Cornelius and Cindy Nadler, for the Crown

– and –

HAMAS KHAN

Emily Lam, Susannah Chung-Alvares and Vinidhra Vaitheeswaran, for the Accused

HEARD: December 2, 2021

DECISION RENDERED: January 17, 2022

Tzimas j.

REASONS FOR SENTENCING

INTRODUCTION

[1] On August 25, 2021, the jury found Hamas Khan not guilty of first degree murder but guilty of manslaughter of Palwinder Singh-Goroya.

[2] Sentencing submissions were received on December 2, 2021. In those submissions, the Crown proposed an incarceration term in the range of eleven to thirteen years. Defence counsel proposed a range of four to seven years with the further submission that with Summers and Duncan credits, the net sentence would be reduced to time served.

[3] For the reasons that follow, I conclude that eight and a half years is an appropriate sentence for Mr. Khan. The sentence incorporates a “Duncan” credit of 18 months. From the sentence of 8.5 years, a “Summers” credit of five years and 3 months, (63 months) is to be deducted, leaving Mr. Khan with a remaining 39 months, or three years and three months of remaining custody.

[4] In accordance with s.109(2) of the Criminal Code of Canada, Mr. Khan is also prohibited from possessing any firearm for life. Mr. Khan shall also provide a DNA sample.

[5] My reasons for the decision follow.

FACTS OF THE OFFENCE

[6] Mr. Khan was one of four individuals who participated in an armed home invasion that ended with the fatal shooting of Palwinder Singh-Goroya. On the early evening of July 16, 2018, Sawraj Singh arranged with Andrew Edward to sell him weed. The two agreed that Mr. Edward would meet at Mr. Singh’s residence at 67 Donwood Court for the transaction. Mr. Singh lived there with two other roommates, Karam Dev and Mr. Singh-Goroya.

[7] Mr. Edward arrived at Mr. Singh’s residence with Nebil Albayaty and Mr. Khan. A fourth person, Sean Ponto, drove them there. Mr. Singh did not know the other individuals. Nor did he expect that Mr. Edward would be coming with others.

[8] Following some greetings at the front of the residence, Mr. Singh directed the guys to go to the backyard. He followed them there but then headed into the kitchen from the backdoor to get the weed. Mr. Singh did not invite the guys into the house. However, as he entered the kitchen, he sensed that somebody was following him. When he turned around, he saw that two of the guys were following him, with one of them holding a gun. Mr. Edward disappeared as soon as he saw the gun.

[9] The two guys who entered the residence were Mr. Khan and Mr. Albayaty. One of them was holding the gun and giving orders. The other followed along and participated in the hold-up and threats.

[10] The victim, Mr. Singh-Goroya had nothing to do with Mr. Singh’s arrangement to sell weed to Mr. Andrew. At the moment when the guys came into the kitchen and announced that there was no friendly sale transaction underway but that they were there to rob, Mr. Singh-Goroya was in the kitchen sweeping the floor and minding his own business. The person holding the gun ordered him to keep quiet. He then asked Mr. Singh if there was anyone else in the house. When in response he was told that there was one more person upstairs, the person with the gun, together with the other guy ordered and marched Mr. Singh and Mr. Singh-Goroya at gunpoint up to the second floor and into the bedroom where Mr. Dev was sleeping. Once there, Mr. Singh-Goroya was ordered at gunpoint to get onto his hands and knees and he complied. Mr. Dev woke up by the noise only to be confronted by a person with a gun being pointed at him.

[11] Before Mr. Dev could do or say anything, Mr. Singh went to the bedroom closet, got some marijuana and put it on the floor. He then decided to “take action” and used his elbow to hit the person with the gun in his jaw. He also grabbed the hand that was holding the gun and a struggle ensued. Until that moment, the person without the gun remained in the bedroom and continued to participate in the armed robbery. He ran out of the bedroom as soon as the struggle broke out.

[12] The person with the gun tried to back away from the struggle but Mr. Singh continued to hold his hand and did what he could to block him from getting away. In the result, the two found themselves rolling down the stairs and down to the main floor. During this whole time, Mr. Singh continued to hold the hand that was holding the gun. Once they landed at the bottom of the stairs, Mr. Dev said he came down and started to kick the person with the gun.

[13] Mr. Singh-Goroya also left the bedroom and headed down to the main floor. In the course of doing so, and as the struggle continued, the gun went off three times. One of those shots hit Mr. Singh-Goroya in the neck and he died instantly.

[14] At the realization that Mr. Singh-Goroya was shot, Mr. Singh and Mr. Dev let go of the person with the gun. He promptly ran out from the back door, dropping the magazine on the floor. A few minutes later a car was seen leaving Donwood Court. Video cameras from various locations showed Mr. Albayaty and Mr. Khan being dropped off at a different location a short while later. The two were then seen in a taxi, and soon after that they appeared together at a hotel.

[15] Mr. Albayaty and Mr. Khan were arrested one week following the shooting at a hotel room in Hamilton. They were charged with first degree murder of Mr. Singh-Goroya. On his arrest, the officer who examined Mr. Albayaty found that his left jaw was swollen.

[16] There was no dispute that Mr. Andrew was the one who arranged for the transaction with Mr. Singh. It was also not contested that Mr. Andrew was the one who invited Mr. Albayaty to participate in a robbery and he agreed. Sean Ponto, together with Mr. Andrew, picked up Mr. Albayaty from his residence. Then they picked up two other individuals, Frank Collela and Mr. Khan.

[17] Frank Collela’s participation in these events was limited to his brief presence in the vehicle, just before the incident occurred. He was picked up after Mr. Albayaty and before Mr. Khan. Although he remained in the vehicle for only a short period of time, in that time, he witnessed one guy producing a gun and giving it to the other guy. He also heard a brief dialogue concerning the gun’s safety and its possible use. That exchange made Mr. Collela very nervous, and he discontinued his participation by leaving the vehicle.

[18] On December 23, 2019, Mr. Edward pleaded guilty to armed robbery. At the trial he was called to testify but he presented with complete amnesia. The Crown hoped to call Mr. Ponto to testify but he could not be located.

[19] On March 2, 2020, Mr. Albayaty pleaded guilty to manslaughter. In that plea he identified Mr. Khan as the person with the gun and stated in a sworn affidavit that he did not see any gun and he had no idea that anyone brought a gun to the robbery.

[20] At trial, he changed his narrative and said that he was the one who brought the gun to the robbery. He also said that he was the one who pulled the gun on the residents. He denied giving the gun to Mr. Khan and said that Mr. Khan was the one to leave the bedroom as soon as the struggle ensued between him and Mr. Singh, and before Mr. Singh-Goroya was shot.

[21] One of the central questions in this trial related to the identification of the person with the gun and more specifically, Mr. Khan’s role in the shooting of Mr. Singh-Goroya. Was he or was he not the person with the gun?

[22] The jury was instructed on the modes of participation. They were told that they could find Mr. Khan guilty of the crime charged beyond a reasonable doubt either as the gunman or as the person who accompanied the gunman.

[23] On August 25, 2021, the jury found Mr. Khan guilty of manslaughter.

CIRCUMSTANCES OF THE OFFENDER

[24] The court received a Pre-Sentencing Report, (PSR) dated November 17, 2021. In that report, the author indicated that Mr. Khan was just 18 years old at the time of the offence. He was 21 years old at trial and at the writing of the PSR.

[25] Mr. Khan is the youngest of four children. Although he was born in the City of Mississauga, from the age of two, his family moved to Thorncliffe Park, a community in East York, Toronto, considered by some as the “Thorncliffe ghetto”. His father worked abroad and returned home during the summer months. Although Mr. Khan described his family as supportive, he said that he gravitated towards negative peer groups because he lacked a male authoritative figure. Mr. Khan believed that he would have remained law-abiding had his father been physically present in his formative years. Unfortunately for Mr. Khan, his father passed away suddenly just weeks before his trial. This was especially traumatic and devastating for Mr. Khan as he was unable to attend his father’s funeral.

[26] Mr. Khan reported that in his adolescent years he resented his family’s low socioeconomic status, which prevented him from owning expensive jewellery and cars. He began to associate with his older brother who was leader of a gang in Thorncliffe that sold drugs and engaged in robberies. Mr. Khan participated in those activities and began to smoke weed. He said that the marijuana affected his thought-process. His gang peers persuaded him to believe that he would achieve his dreams by committing criminal acts. He reported that these individuals “were controlling me, like I didn’t have a brain”.

[27] At some point the family moved back to Mississauga. Mr. Khan began to associate with a different gang and continued to participate in robberies and the selling of drugs.

[28] Regarding his education, Mr. Khan reported average grades and said that he excelled in physical education. He enjoyed playing sports and participated in the school’s basketball program. His grades began to fall in grade 10 when he began to associate with the gang in Mississauga. In this time period he engaged in bullying, including stealing lunch money from other students. He received numerous suspensions and then decided that he would be removed from the regular school system to attend an alternative school. This only increased his criminal activities since he encountered criminal associates at the same school. Eventually he dropped out of school, continued drug dealing and other criminal activities and eventually found himself in a secure youth facility.

[29] Going forward Mr. Khan is hoping to work with his cousin who is an electrician and owns his own company. Mr. Khan would like to complete high school and also hopes to become an electrician.

[30] With respect to his character and behaviour the author to the PSR described him to be polite and cooperative. He accepted responsibility for his involvement in the offence although he said that he did not know that the others were planning to commit the offence.

[31] Mr. Khan has been in custody since July 23, 2018. In that period his conduct has been problematic. The PSR reports 28 misconducts where “he has threatened or assaulted another inmate, 3 misconducts for having or attempting to bring contraband and 4 for wilfully disobeying an[d] officer’s order”. When asked about these incidents he said that “things happen here” and that he had to defend himself against the other inmates. The PSR concludes with the opinion that given the seriousness of the current matter, Mr. Khan’s criminal history and his institutional conduct, Mr. Khan would not be suitable for community service.

[32] In addition to the PSR, Mr. Khan filed an affidavit. In it, he described the conditions at Maplehurst Correctional Complex, (MCC). As of December 2, 2021, Mr. Khan had been in custody for 1206 days. By the date of this decision, January 17, 2022, Mr. Khan will have been in custody for a total of 1252 days, (1206 days + 46 days).

[33] In this time period, MCC reported a total of 334 full lockdown days, 15 partial lockdown occurrences, and 72 days segregation, 11 of which were at Mr. Khan’s request. Mr. Khan disputed these figures as inaccurate. He admitted that prior to August 2020 he did not keep his own records. However, from August 2020 until October 2021 he kept his own records and counted 248 days of full lockdown and 90 days partial lockdown. In that same time period, MCC recorded 244 full lockdown but only 7 days partial lockdown.

[34] Mr. Khan said that lockdowns at MCC were caused by staff shortages. In addition, every time anyone on the range showed symptoms of COVID19, they would go on a lockdown for either 14 days or until there was a negative COVID19 test.

[35] On full lockdown days, Mr. Khan said he would be confined to his cell for the whole day, with a window of about 15-30 minutes for a shower or a phone call. The limited time meant that he would not have time to do both. When he missed his shower he would have to resort to sink bathing in the presence of his cellmate. He described that to be highly intrusive and embarrassing. He also remembered periods when he would not be allowed out for 4-5 days at a time, including one instance when because of an outbreak he did not get out for a full week.

[36] Mr. Khan also complained that prior to the pandemic, (i.e. prior to March 2020), the jail was not cleaned very frequently. During the pandemic this problem has become more pronounced. Showers, phones, communal tables, and video suites for court are not cleaned between uses, or even regularly. As a range, they receive one bucket of disinfectant from which the servers scoop out one cup to be provided to each inmate. That cup of disinfectant is not enough to clean out the cells and the shared surfaces.

[37] Mr. Khan also described problems with laundry. Although they are supposed to be issued socks, boxers, a towel, one jumper, two bed sheets and one blanket weekly, there is often a laundry shortage and periods of time when such changes do not occur for weeks on end. This means that inmates must wear the same dirty clothing or wash it in the sink with hand soap.

[38] On issues pertaining to the management of COVID19, Mr. Khan complained that they are not given masks, personal visits were cancelled for months on end, access to phone has been limited, mail from family and friends was not delivered, and money left for canteen was held back for 5 days at a time.

[39] Finally, the frequent lockdowns and the circumstances of COVID19 impacted Mr. Khan’s ability to participate in programs related to counselling, education, and religious services. These limitations have contributed to Mr. Khan’s anxiety and depression, causing him to require sleeping pills in the past three years. Mr. Khan concluded that the time in custody “has broken me and changed me”. He expressed the hope to be reunited with his family, to heal and to continue to grow.

[40] At the conclusion of the sentencing submissions by counsel, Mr. Khan said that he regretted getting into the car and wished that he could change the decisions he made in his life. He said he recognized his errors and that he made some very bad decision and allowed other people to impact him. He also blamed his bad conduct on his use of drugs and said that he had a very long time to evaluate his life and is ready to move forward and make things right for his family.

IMPACT OF THE OFFENCE

[41] The Court received victim impact statement from Mr. Singh-Goroya’s parents who live in India. They described their son as a “brilliant child” and talked about how his murder crushed them and their hopes for their son. They stated that they worked very hard to send their son to Canada for a better life, only to see those efforts completely wasted. They said they built a home for him in India and looked forward to the day that he would get married. The incident occurred one day after his 27^th^ birthday, making their own pain that much more unbearable. They recognized that nothing would bring their son back but they hoped that a harsh punishment would bring closure to their plight and allow their son’s soul to rest in peace.

POSITION of the PARTIES

a) The Crown

[42] The Crown sought a penitentiary sentence in the range of 11 to 13 years and a s.109 weapons prohibition for life.

[43] Given the jury’s manslaughter conviction and the possibility that the jury could arrive at that finding either as the principal or a party to the armed robbery, the first step to the consideration of an appropriate sentence was to decide whether or not Mr. Khan was the person with the gun. A finding that he was the person with the gun would be a very significant aggravating factor and the appropriate sentence range would be 11 to 13 years. As the non-shooter, the sentencing range would be 7 to 9 years.

[44] The Crown argued that I could be satisfied beyond a reasonable doubt that Mr. Khan was the shooter on the basis of the following evidence:

a. Mr. Singh: He said that Mr. Khan was the person with the gun. In the Crown’s view, he had the best opportunity to see Mr. Khan. He conversed with him at the front of the house, at the back of the house, in the kitchen, in the bedroom, and then came face to face with him during the struggle. He consistently described Mr. Khan as the person with the gun and gave an in-dock identification, for which he was not contradicted.

b. Mr. Collela: For the brief period that Mr. Collela was in the car, he sat in the back seat between Mr. Albayaty and Mr. Khan. He described how one individual handed the gun to the other, across him. He also described what he overheard about the safety of the gun and its potential use. He got out of the car after he witnessed the interaction with the gun.

Although there were issues concerning Mr. Collela’s identification of Mr. Khan that necessitated a court ruling and an instruction to the jury that directed them to ignore the in-dock identification, the court could find beyond a reasonable doubt that: i. Mr. Collela sat between Mr. Khan and Mr. Albayaty; ii. that he witnessed Mr. Albayaty hand the gun to Mr. Khan; and iii. he heard Mr. Khan express concerns about the lack of a safety latch and state that he would shoot the person in the leg if he had to do so. The Court could arrive at those findings because: i. Mr. Collela’s evidence that they picked up a guy at the Queen Frederica complex coincided with the agreed fact that Mr. Khan lived at that complex; ii. there was no evidence that anyone other than Mr. Khan was picked up after Mr. Collela; iii. Mr. Collela had no motive to lie and actually put himself in a bad light by admitting that initially he was willing to participate in the robbery; and iv. his departure after seeing the gun underscored that what he saw was dramatic, something he would not forget, and therefore he was a reliable witness.

In short, there could be no question that Mr. Khan was in the vehicle together with Mr. Albayaty. In that time period, both he and Mr. Albayaty had control of the gun.

c. Mr. Albayaty: He was not credible at trial. He made up his evidence to help Mr. Khan. In support of that contention, counsel highlighted various errors and inconsistencies in Mr. Albayaty’s testimony that could not be reconciled with the rest of the evidence. For example, he did not know how many times the gun went off or that the magazine fell out of the gun. He could not remember what happened to the gun. He said he lost a ring during the struggle but in the pictures of him just before the incident he was not wearing any rings. His description of seeing Mr. Khan run out did not make any sense.

Counsel urged the court to prefer Mr. Albayaty’s sworn statement to his guilty plea to the effect that he knew nothing about a gun and that the gun belonged to Mr. Khan. In response to Mr. Albayaty’s attempt to distance himself from the statement by suggesting that his counsel drafted the affidavit and he merely signed it, without any input, counsel asked the court to recall how Mr. Albayaty let it slip that he deleted from his statement any references to his shoe that he left behind as he ran out from the house. That demonstrated his control over the statement and therefore it could be accepted as to find that Mr. Khan, and not Mr. Albayaty, was the person with the gun.

d. Mr. Karam Dev: Although Mr. Dev identified Mr. Albayaty as the person with the gun, counsel asked the court to conclude that he made an honest mistake. He was woken up very suddenly, his interaction with the person with the gun was limited, and therefore it was reasonable that he would be confused and his description would not be reliable. His references to the person having golden hair and his reference to a mask were elements that did not make any sense and underscored his unreliability.

With reference to his evidence that the non-gunman wore a mask, none of the other witnesses said anything about any of the guys being masked. That magnified Mr. Dev’s unreliability.

[45] I note that at the beginning of the sentencing submissions, Crown Counsel brought an application to call Mr. Albayaty and Ms. Russell pursuant to sections 723 and 724 of the Criminal Code to offer the court further evidence concerning Mr. Albayaty’s connection to the gun. After hearing submissions, I gave an oral ruling to the effect that I did not require further evidence from Mr. Albayaty or Ms. Russell. My reasons were outlined in my oral ruling.

[46] Counsel also reviewed the following additional aggravating factors:

a. At the time of the incident Mr. Khan was bound by a recognizance that included a term that he not possess any weapons. He breached it with his participation in the armed robbery.

b. Mr. Khan has a criminal record. Although it post-dates this offence, it is inextricably linked to his overall behaviour as he is alleged to have used an imitation firearm and raises serious doubts about his prospects for rehabilitation.

c. His participating in the incident of July 16, 2018 and his resulting offence was motivated by sheer greed and naked opportunism; he and the others saw a weak target in Mr. Singh and sought to grab cash and drugs. He was reckless as to the value of a human life and demonstrated it in his comment about shooting somebody in the leg if he had to. He showed no consideration as to who was in the house or whether they might be armed. If he was not the one with the gun, he went along with Mr. Albayaty’s actions and did not try to stop what was going on. At the first sign of trouble, he ran away without offering to help. Finally, the extent of Mr. Khan’s greed and indifference to what occurred was captured in the videos following the incident, at the hotel where he and others there proudly displayed the cash and the drugs that they grabbed.

Counsel referred the court to R v. Dupuis, 2014 ONSC 3573, [2014] O.J. No. 2797, R v. Buhkari [2007] O.J. No. 5807, R v. Reid 2018 ONCA 1054, [2018] O.J. No. 6741, R v. Norman [2005] O.J. No. 1073 for the implications of such behaviour on sentencing.

d. Whether as the gunman or as a party to the home invasion, a gun was used in the home invasion. The severity of this factor is addressed in cases including Dupuis, supra., Bukhari, supra., Reid, supra., R v. Yaali [2018] O.J. No. 3058, and affirmed in [2020] O.J. No. 831.

e. The incident involved a toxic mix of drugs and a gun. This aggravating factor is discussed in R v. Roberts-Stevens 2019 ONSC 257, [2019] O.J. No. 103.

f. The victim was unarmed and did not provoke the violence. The same was true for Mr. Singh and Mr. Dev. For the implications of this feature, counsel referred the court to Reid, and Roberts- Stevens, supra.

g. The victim was young and had just celebrated his 27^th^ birthday. His parents were shattered by what occurred.

h. The armed robbery was poorly planned, without any regard for who might be at the house, whether they might be armed, or the actual implications of any resistance or any shooting.

i. The murder occurred in front of friends and family.

j. The incident was an armed home invasion. The guys were not invited into the home but were asked to wait outside. Instead they barged into the kitchen and declared the robbery. Specific reference was made to R v. Singh, 2018 ONSC 3850, [2018] O.J. No. 3292 and R v. Webber [2013] O.J. No. 1185 to support the submission that armed home invasions, connected to drugs elevates the level of moral blameworthiness, requiring courts to deal with them sternly. Counsel drew many parallels between Singh, supra., and this case.

k. Mr. Khan’s PSR is poor, with a reported 39 misconducts, 28 of which involved threatening or assaulting other inmates. Even if the severity of some of the recorded incidents are questionable, the sheer number is a problem. Furthermore, although he appears to have some family support, his mother’s comments suggests that she does not appreciate the seriousness of her son’s conduct or the implications. Her ability to support his rehabilitation was therefore questionable.

[47] In the addition to the specific references just noted, counsel put before the court several cases in support of the proposed sentencing ranges. The complete list of cases is found at Schedule “A” to this decision. Counsel made specific reference to the Ontario Court of Appeal’s guidance in R v. Tahir, [2016] O.J. No. 859 on the appropriate sentencing ranges for an aggravated manslaughter as well as the guidance contained in R v. Lee 2021 ONSC 6704, [2021] O.J. No. 5229.

[48] On the subject of parity, having regard for the cases submitted by the defence with sentences of four to seven years and Mr. Albayaty’s own sentence of seven years and three months pursuant to his guilty plea, counsel noted that those cases were distinguishable from the facts in this case.

[49] Beginning with the cases where the sentences were in the four to seven year range, counsel submitted that there was no principled basis for a sentence in that range for Mr. Khan. Even if he were not the person with the gun, the number of aggravating factors would bring him closer to a sentence of 11 years. Counsel based this submission on the sentence pronounced by Harris J. in Singh. The defence’s examples of four to five years, or even up to seven involved distinguishable circumstances, including examples where offenders pleaded guilty, were merely get-away drivers and not present in the actual armed robbery, and in some circumstances were implicated in beatings, as opposed to bringing a loaded gun to an incident. In Mr. Khan’s case, as the person with the gun, the cases begin at a sentence of 11 years and go as high as 15 years.

[50] With specific reference to Mr. Albayaty’s sentence, counsel noted that Mr. Albayaty pleaded before the Preliminary Inquiry. Apart from the parity arguments, counsel submitted that there was no basis for Mr. Khan to receive anything less than what Mr. Albayaty received.

[51] In response to Mr. Khan’s submission that he offered to plead guilty to manslaughter prior to the Preliminary Inquiry as well as on three separate occasions following the Preliminary Inquiry, including during the trial, counsel indicated both in oral submissions and subsequently in writing that neither she nor co-counsel had any recollection of an offer prior to the Preliminary Inquiry. Counsel did not dispute the offers following the Preliminary Inquiry and agreed that they would operate as a mitigating factor.

[52] With respect to mitigating factors, counsel doubted the prospects of rehabilitation given Mr. Khan’s blaming of others for his predicament. Counsel agreed that conditions at Maplehurst, separate and apart from the COVID19 limitations were a mitigating factor for the court’s consideration.

[53] Counsel acknowledged the discrepancies between Mr. Khan’s evidence and MCC’s records as that related to lockdowns and said that the difference was significant but suggested that Maplehurst’s records ought to be preferred over Mr. Khan’s record. Counsel also suggested that some of Mr. Khan’s complaints may have been the result of choices he made, including not getting vaccinated or going on a hunger strike.

[54] Counsel did not cross-examine Mr. Khan on his evidence or his record-keeping. However, in a subsequent communication with the court, (for which counsel obtained the court’s permission as well as the consent of defence counsel, on the condition that defence counsel could respond, which they did), counsel forwarded Sergeant Essery’s explanation about the discrepancies in the record-keeping which was as follows:

Full lockdowns and Partial Lockdowns are generated from information reports (see examples) and then transferred to the Maplehurst Summary of Lockdowns sheet. From the Summary of Lockdowns sheet we are able to get the number of full and partial lockdowns from Mr. Khan. These Summary of Lockdown Reports are the records we use to complete our lockdown summaries.

Mr. Khan may have kept his own records and felt if staff were late unlocking in the morning or started locking up early in the evening this would constitute a partial lockdown; but it would not. If his wing was subject to a search that morning it would trigger a partial lockdown. There are daily operational factors which may not trigger a lockdown in the report. Because Mr. Khan has been in custody for 1206, and kept his own records, I would expect a discrepancy in what he views as a partial lockdown and what is registered by the institution as a partial lockdown. Mr. Khan has also been incarcerated through the peak of COVID and Provincial Institution have had to alter how they operate to keep inmates and staff safe. This has meant reducing the number of inmates out at any one time.

[55] For the sake of completeness, it is efficient to note at this point of the decision the defense’s specific response to this communication:

With regard to the further information provided by Sgt Essery, this accords with the defence position on the accuracy of Mr. Khan’s records as compared to the institution’s record keeping. Sgt. Essery explained that there are operational factors and COVID protocols that resulted in an effective lockdown and limitations on movement that would not be recorded / classified as a lockdown in Maplehurst’s records. We contend it is these exact lockdowns that were not counted by the institution but counted by Mr. Khan, who experienced it, and explains why Mr. Khan’s count is higher. Our position is Mr. Khan’s count should be used when calculating the number of partial lockdowns.

[56] On the lockdowns caused by the COVID19 outbreaks and related measures, counsel did not dispute that being in custody in this period of time would have to be taken into account but submitted that the court ought to follow R v. Marshall 2021 ONCA 344 and treat these conditions as a mitigating factor.

[57] With respect to pre-trial custody counsel agreed to the “Summers” credit proposed by the defense.

b) The Defence

[58] Defence counsel submitted that an appropriate sentence would be in the range of four to seven years, and favoured examples of four to five year sentences. With the benefit of a “Summers credit”, a “Duncan” credit and some additional credit for COVID19 conditions, even with a sentence of seven years, the net result would be time served.

[59] Given the jury’s finding of manslaughter, the defence agreed that Mr. Khan had the objective foresight of the risk that the gun could be used. However, for the gun to be an aggravating factor in the sentencing analysis, the court would have to find beyond a reasonable that Mr. Khan was the person with the gun. In the defense’s view the Crown could not satisfy that burden for a number of reasons.

[60] Separate and apart from the credibility issues related to Mr. Albayaty that on their own undermined the Crown’s burden of proof, defence counsel located reasonable doubt in the evidence of the Crown’s other witnesses, and specifically, Messrs. Dev and Singh and Officer Young. Mr. Singh’s evidence was unreliable. The questions leading up to his in-dock identification of Mr. Khan were flawed and his answer was unreliable and could not be given any weight. His description of the person with the gun was convoluted and did not fit either Mr. Khan or Mr. Albayaty. References to the curly hair were suggestive of Mr. Edwards rather than either one of Mr. Albayaty or Mr. Khan.

[61] In the defense’s view, Mr. Dev was not mistaken in his description of the person with the gun; his description fit Mr. Albayaty’s characteristics “to a tee”. Contrary to the Crown’s suggestion that Mr. Dev was mistaken and confused by the shock of being woken up at gunpoint, Mr. Dev was consistent in his descriptions. Insofar as there was some discrepancy in Mr. Dev’s description of the guys’ build, their respective builds were not that different to put into question Mr. Dev’s overall description or his reliability as a witness. More significantly, those descriptions were corroborated by the pictures of Mr. Albayaty that Mr. Dev would not have seen prior to his testimony at trial. Mr. Dev had no motive to fabricate or lie. Nor was his evidence tainted. He was there to catch the people who were responsible for his friend’s death. In re-examination, he said that Mr. Albayaty was the person with the gun.

[62] Officer Young identified and corroborated an injury in Mr. Albayaty’s left jaw, consistent with Mr. Singh’s evidence that he elbowed the person with the gun in his jaw. The fact that videos before the court did not show any injuries to Mr. Albayaty’s face or suggest that he was in any pain could not be taken to be conclusive, given their poor quality.

[63] With respect to Mr. Albayaty and his evidence, counsel said that nobody was suggesting that he was a credible witness. He had a motive to fabricate the contents of his sworn statement in support of his guilty plea and to lie trial. In short, Mr. Albayaty could not be believed for anything that he said.

[64] Regarding Mr. Collela’s evidence, counsel submitted that his answers were unreliable because he was led through many of the questions. He was also in the vehicle for a very short time and therefore could not say what occurred or what happened to the gun after he left. In the result the handing of the gun from one person to the other could not be found to be an aggravating factor.

[65] On the various videos that the Crown put into evidence depicting Mr. Albayaty’s conduct following in the incident, counsel submitted that they lacked any probative value because of their poor quality. None of the videos showed Mr. Khan saying anything and Mr. Albayaty’s behaviour could be explained by his explanation that he was high.

[66] In light of the foregoing, counsel submitted that the court could find that Mr. Alabayaty was the one with the gun. The court could also accept his evidence that he intended to use the gun only to intimidate the residents at Donwood Court. But the court did not have any evidence to find that Mr. Khan made any subjective assessment of the risk connected to the gun. Stated differently, counsel submitted that the preponderance of evidence did not support a finding of subjective foresight by Mr. Khan., leaving the Court with only Mr. Khan’s objective foresight of harm.

[67] Counsel rejected the Crown’s submission that the incident amounted to an aggravated manslaughter. The guys who attended at Mr. Singh’s residence were invited there. They did not initiate the struggle; Mr. Singh took matters in his own hands, and that resulted in the struggle. Once the struggle broke out, both the gunman and the non-gunman attempt to retreat. The person without the gun was able to get away. The gunman was blocked, and was only let go after the shooting. These circumstances should enable the court to differentiate this case from the cases advanced by the Crown. In support of this submission, counsel directed the court’s attention to R v. Tsega, [2021] O.J. No. 3830 and suggested that Mr. Khan’s circumstances were analogous to Tsega, who received a sentence of 5 years.

[68] Counsel then reviewed the discrepancies in the data concerning the lockdowns at MCC and Mr. Khan’s own evidence and highlighted the concern that MCC was not counting the operational lockdowns, even though they impacted on Mr. Khan’s well-being. In light of that impact, counsel said that the partial-lockdowns should be included in the overall “Duncan” credit.

[69] On the impact of COVID19 and its implications for additional credit, counsel said that the virus and the circumstances of the pandemic came to exacerbate an already deplorable situation at MCC.

[70] The defence disputed the aggravating factors proposed by the Crown and specifically disagreed with the suggestion that the incident on July 16, 2018 amounted to an aggravated manslaughter. Counsel described the robbery as a “robbery simpliciter” and argued that the incident before the court did not have any of the aggravating features that were present in the cases that the Crown put before the court. In R v. Al-Rubayi [2020] O.J. No. 5960 the offender was the shooter, he brought a loaded gun and specifically said that the victim “deserved it”. In R v. Funes, [2015] O.J. No. 5876, the offender was the principal in the organization and planned the robbery. In Webber, supra., the offender was a full participant. In Singh, supra., the offender deliberately threw gasoline at the victim. In short, the facts in those cases involved very dramatic and pronounced instances of violence.

[71] Counsel suggested that the court rely on cases such as R v. Kwakye 2015 ONCA 108, [2015] O.J. No. 707 where the non-shooter offender received seven years for manslaughter and Tsega, where the offender received five years for manslaughter. Counsel gave other examples where the sentence for a manslaughter was set at 4 years. The full list of cases is also outlined in Schedule “A” to this decision.

[72] The defense then enumerated several mitigating factors for consideration, beginning with the observation that Mr. Khan was a youthful first-time offender. His family is very close and he is the youngest of four children. His father died unexpectedly just before the trial started. His circumstances suggested good rehabilitative prospects, especially in light of his cousin’s willingness to offer him employment and Mr. Khan’s own willingness to finish high school and to train to become an electrician.

[73] Mr. Khan’s own remorse and understanding that he made a mistake has enabled him to mature and to learn from his mistake. He has also grew spiritually during his time in custody.

[74] On the subject of lockdowns over a prolonged period of time, Counsel described them to be unconscionable and directed the court’s attention to R v. Dalmar, 2021 ONCJ 89 that reported on the specific prevailing conditions at MCC for the same period that Mr. Khan has been in custody. Counsel suggested that the court could take judicial notice of the conditions reported in that decision to complement Mr. Khan’s own evidence. Given the dramatic effects of these conditions on Mr. Khan’s well-being, counsel submitted that they should result in a significant enhanced credit. Counsel confirmed that as of the date of the sentencing submissions, Mr. Khan had spent 41 months in custody, which, on the basis of s. 719(3.1) of the Criminal Code, at 1.5 to 1credit, translated into an equivalent credit of 61.5 months of pretrial custody credit.

[75] On the numerous reported instances of misconduct by Mr. Khan while in custody, counsel disputed the records and said that the information in the PSR was highly unreliable because inmates do not have representation at the discipline hearings, they do not obtain disclosure and there is no separation between the body that charges and the body that decides on a punishment. Such reports could therefore not amount to an aggravating factor. They could also not be relied on to come to any conclusions about Mr. Khan’s rehabilitation prospects. Conditions in a jail are very different from the community and could not be used as an indicator of how somebody will behave in the community.

[76] Counsel also submitted that little weight should be placed on Mr. Khan’s breach of his recognizance since apart from his youth record, his conviction was his first offence. Mr. Khan’s situation was very different from Mr. Albayaty’s significant criminal record.

[77] A further mitigating factor related to Mr. Khan’s willingness to plead guilty to manslaughter, as early and contemporaneously with Mr. Albayaty, meaning prior to the Preliminary Inquiry, as well as on three additional occasions, following the Preliminary Inquiry. Counsel underscored the position that it was not by choice that Mr. Khan endured a six-week trial and therefore his willingness to plead should be taken into account. Counsel relied on R v. Denis, 2015 ONSC 3179, and R v. Kimpe, 2010 ONCA 812 for the proposition that an offer to plead guilty is a mitigating factor. Having regard for parity principles, counsel submitted that this was one more reason that the sentence for Mr. Khan ought not to exceed what Mr. Albayaty received for his guilty plea.

ANALYSIS

Guiding Legal Principles

[78] As a preliminary observation, and with full respect to the victim’s parents, when they say that they will have closure and that their son’s soul will rest in peace with a harsh sentence for Mr. Khan, the harsh reality is that no sentence will bring back their son. It is tragic that a young man, in his prime, whose only connection to the events of July 16, 2018 was as a result of being Mr. Singh’s and Mr. Dev’s roommate, was confronted with a violent armed robbery that ended with his murder.

[79] At this point, the task before me is to impose a sentence on Mr. Khan that is proportionate to the gravity of the offence, the degree of his responsibility for what occurred, and that has as its goal the principles of denunciation, deterrence, and rehabilitation. In R. v. M. (C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at paragraph 91, the Supreme Court of Canada explained one of the trial judge’s obligations in the following terms:

Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

[80] In addition to those requirements, to underscore the challenges of sentencing, I adopt the three limitations to sentencing outlined by Boswell J. in R. v. Fracasse 2017 ONSC 28 at paragraph 36:

(1) Whatever sentence is imposed, it cannot undo the damage that has been done by the offence. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache that they began the day with;

(2) No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentence adhere to the purposes and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code, and that it be fit for purpose – neither too lenient nor too harsh – in order to maintain the confidence of the broader public; and

(3) The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.

[81] Section 718 of the Criminal Code sets out the following in terms of the purpose of sentencing:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[82] Further, s. 718.1 of the Criminal Code provides:

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

[83] Proportionality 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. The more serious the crime and its consequences, 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. Section 718.2 (a) directs that a sentence should be increased or reduced to account for the relevant aggravating and mitigation factors. In short, the imposition of a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime, see R v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para.80.

Specific Legal Issues for Determination

[84] In Mr. Khan’s case, to make my findings on the applicable aggravating and mitigating factors, I must first address the following questions:

a. Was Mr. Khan the person with the gun?

b. Did Mr. Khan have subjective foresight that the gun could be used?

c. Was the incident of July 16, 2018 an armed robbery resulting in a manslaughter with aggravating circumstances, or was it a robbery simpliciter?

d. Are Mr. Khan’s offers to plead guilty to manslaughter on multiple occasions prior to trial a mitigating factor?

e. What parity considerations apply to Mr. Khan in light of Mr. Albayaty’s sentence of 7 years, 3 months?

f. What are Mr. Khan’s prospects for rehabilitation?

g. What are the appropriate “Summers”, “Duncan” and COVID19 pre-sentencing credits for Mr. Khan?

The answers to these questions will allow me to identify the aggravating and mitigating factors to be applied to determine a fair and just sentence for Mr. Khan.

a. Was Mr. Khan the person with the gun?

[85] On the evidence before this court, I am unable to find beyond a reasonable doubt that Mr. Khan was the person with the gun. As between Mr. Albayaty and Mr. Khan, there is no question that one of them pulled the gun on the residents at 67 Donwood Court. I base this finding on Mr. Collela’s evidence, and specifically his description of how Mr. Albayaty handed the gun to Mr. Khan, and the conversation that occurred in relation to the gun.

[86] Contrary to the submission by the defense that I reject Mr. Collela’s evidence as unreliable because of the way Crown counsel led him in his examination-in-chief, Mr. Collela’s specific evidence on the issue of the gun was unprompted and his own. Although Mr. Collela did not know the two individuals who engaged with the gun, on the totality of the evidence before the court, I am able to find beyond a reasonable doubt that those two individuals were Mr. Albayaty and Mr. Khan.

[87] As the person who was sitting in the back of the car, between Mr. Albayaty and Mr. Khan, Mr. Collela was in the perfect position to witness the gun transfer from Mr. Albayaty to Mr. Khan and to hear Mr. Khan ask Mr. Albayaty about the gun’s safety latch and to say that he would shoot the person in the leg if he had to. Mr. Collela’s request to leave the vehicle and therefore discontinue his participation in the anticipated incident immediately after seeing the gun underscored his credibility and explained the reason for his departure. The presence of the gun raised the stakes and Mr. Collela decided (very wisely), not to have any part in the robbery.

[88] The problem with Mr. Collela’s evidence does not lie with any concerns over his credibility or reliability; rather, with his departure, there was no evidence on whether Mr. Khan retained the gun and used it at Mr. Singh’s residence or whether at some point prior to their arrival at Donwood Court he gave it back to Mr. Albayaty. This would not be a concern if the evidence concerning the gunman from Messrs. Singh and Dev and from Officer Young corresponded with Mr. Khan. But it did not. At the very least, their evidence raised reasonable doubt and therefore gave rise to the question of whether or not Mr. Khan kept the gun or whether he gave it back to Mr. Albayaty. Let me explain.

[89] With respect, I reject Crown counsel’s suggestion that Mr. Dev’s description ought to be rejected as simply a mistake because of his state of shock by what was unfolding, or that Mr. Singh’s in-dock identification of Mr. Khan as the shooter should be preferred to his confused description for the following reasons. In my review and consideration of his testimony, Mr. Dev’s detailed description, with the exception of his reference to “goldish” hair, was consistent with somebody who fixated on the gunman and whose image was seared in his memory. Given the intensity of the experience, it is hard to believe that somebody would forget the face of a person pointing a gun at him. Moreover, Mr. Dev had a very good opportunity to get a good look at the gunman, especially since he too started to hit the guy. Very remarkably, Mr. Dev remembered some of Mr. Albayaty’s key features, including his thick hair braids down to his neck, his blue hoodie with a white logo, his faded jeans, and the square stud in his ear. As a relative newcomer to Canada, Mr. Dev did not recognize the Maple Leaf logo as the logo on the blue hoodie. But there was no dispute that his description of the blue hoodie coincided with the photographs showing Mr. Albayaty in a Maple Leaf jersey. Most significantly, when asked on re-examination about the identity of the gunman, he said it was Mr. Albayaty. Against such details, I have no reasons to doubt or reject his description of the gunman as an innocent mistake.

[90] Mr. Singh’s description of the gunman was more problematic and far less reliable than what the Crown suggested. Many of the features he described, such as for example the gunman having curly hair, corresponded with Mr. Edward’s features, rather than either one of Mr. Khan or Mr. Albayaty. At the same time, his description of the person without the gun corresponded very remarkably with Mr. Khan’s characteristics and could not be reconciled by any explanation. The in-dock identification was weak and the result of sloppy questioning. Mr. Singh’s evidence, on its own leaves me with reasonable doubt over the gunman’s identity.

[91] Finally, Officer Young’s finding of an injury in Mr. Albayaty’s left jaw, was both credible and reliable and gave rise to further doubt that could not be reconciled. He undertook an examination and recorded the findings. He had no reason to misrepresent or record an injury if one did not exist. While the videos depicting Mr. Albayaty soon after the incident would suggest that there was nothing wrong with Mr. Albayaty, the quality of those videos was poor and I therefore could not be certain about the visibility of any swelling or bruising. I also cannot ignore the fact that Mr. Albayaty and others were using drugs, and may have been high in some of the videos. If that were the case, the drugs could have blunted any pain sensation in Mr. Albayaty’s mouth. As between Officer Young’s direct examination of Mr. Albayaty’s jaw and the low-resolution videos, I have no basis to reject Officer Young’s evidence in favour of the video depictions.

[92] Turning to Mr. Albayaty’s evidence, I am not persuaded by the Crown’s submission that I may rely on his sworn statement at the time of his guilty plea over his testimony at Mr. Khan’s trial, to find that Mr. Khan was the person with the gun. On the evidence before the court, it is impossible to know what to believe and what to reject in Mr. Albayaty’s multiple but variable narratives.

[93] To begin with, on the basis of the extrinsic evidence before me, I find that Mr. Albayaty lied both in his sworn statement in support of his guilty plea and in his testimony at Mr. Khan’s trial. Sadly for him, he was an outright liar who shaped his narrative to suit his own purposes.

[94] To begin more specific, although Mr. Albayaty’s sworn statement contained a number of problematic statements, the most pronounced lie was in the following statement: “On route to the residence, I came to understand that KHAN was in possession of a firearm. I did not see the firearm; and there was no discussion or agreement on the issue of a firearm being used to carry out the robbery”, my emphasis. Separate and apart from Mr. Albayaty’s own somersault on this point at trial, Mr. Collela’s evidence that Mr. Albayaty handed the gun to Mr. Khan means that Mr. Albayaty lied in his sworn statement about not seeing the gun and not hearing anything about the gun. Curiously, in stating in his statement that he “came to know” about Mr. Khan having a firearm en route to the residence, he offered no explanation on how he acquired that knowledge or what he did about it.

[95] This fundamental discrepancy, together with his deliberate decision to remain silent about the shoe he left behind as he ran out of the house for fear of being identified as the gunman and other discrepancies and contradictions, make it impossible to rely on anything Mr. Albayaty stated in his statement to find beyond a reasonable doubt that Mr. Khan was the gunman. There can be no doubt that at the time of his guilty plea, Mr. Albayaty’s sole objective was to distance himself from anything related to the gun so as to minimize his role in the incident and obtain the lowest possible sentence. Fingering Mr. Khan as the gunman was the only obvious escape route as he did not have anyone else to blame.

[96] Mr. Albayaty’s testimony in court was equally problematic. The contradictions in his testimony and the discrepancies on some aspects of what occurred, as highlighted by the Crown raised valid concerns over his credibility. However, even in those lies, Mr. Albayaty had as his primary objective his own protection. Even if the changes to his narrative tended to exculpate Mr. Khan, his evasiveness and his professed memory lapses were designed to maintain a distance from the gun and to blur the circumstances of his own involvement. But his evasiveness and feigned amnesia, be that in relation to the gun or his description of how he saw Mr. Khan running out of the house, cannot be explained by a finding that Mr. Khan was the gunman. Finding Mr. Albayaty totally incredible cannot possibly result in a finding that Mr. Khan had to have been the gunman. In other words, it would be unjust to conclude that Mr. Khan must have been the gunman because Mr. Albayaty could not be believed.

b. Did Mr. Khan have subjective foresight that the gun could be used?

[97] On the evidence before the court, I am satisfied beyond a reasonable doubt that Mr. Khan was a party to an armed home invasion knowing that somebody had a gun that was going to be used in a violent offence. Given the conversation in the vehicle, as reported by Mr. Collela, even if Mr. Khan was not the ultimate person with the gun, I find that Mr. Khan knew that they were going to do a robbery and they would use the gun to intimidate the residents. Mr. Khan’s question about the lack of a safety latch on the gun, confirmed his subjective understanding and indeed his concern that the gun is a dangerous object.

[98] Mr. Khan’s further comment that he would shoot in the foot if he had to, in and of itself raised various questions about what Mr. Khan meant by that comment and the nature of his intent. At the very minimum it further underscored Mr. Khan’s awareness and clear understanding that a gun is dangerous. Whether the comment about shooting in the foot suggested foolishness, inexperience, naivete, or deliberate planning, there could be no doubt that Mr. Khan understood that he might have to use the gun for more than just intimidation.

[99] Mr. Khan’s subjective foresight on the gun’s possible use also reveals his recklessness towards human life and the risk that someone would be killed. It also underscored his sheer greed and naked opportunism to steal weed and cash. These findings generate substantial blameworthiness and serve to place Mr. Khan’s sentence at the higher end of the sentencing range, subject to mitigating factors relating to Mr. Khan’s youth and his rehabilitation prospects, see for example, Singh, supra., at para. 63 and R v. Hong, 2016 ONSC 2654 at paras. 11 and 12.

c. Was the incident of July 16, 2018 an armed robbery resulting in manslaughter with aggravating circumstances, or was it a robbery simpliciter?

[100] I find it exceptionally difficult to accept the defence’s submission that the incident of July 16, 2018 amounted to a simple robbery. On the evidence before me, and in addition to the preceding findings, I agree with the Crown’s submissions that this was an armed home invasion with a loaded gun, making this a manslaughter with aggravating characteristics.

[101] The first such aggravating fact is the fact of the invasion. Contrary to the defence’s submission that the incident could not amount to an invasion because Mr. Singh arranged to meet Mr. Edward at his home, the guys were never invited into Mr. Singh’s residence. When he encountered the three guys, Mr. Edward, Mr. Albayaty and Mr. Khan, he asked them to go to the backyard and wait there. He did not know Mr. Albayaty or Mr. Khan and he did not invite anyone into the kitchen. When the guys followed him into the kitchen, they initiated their invasion on a false pretext. Their resort to trickery to aggravated the invasion.

[102] Second, the gravity of the invasion was pronounced by the fact that this was a home invasion and affected residents who had no connection to Mr. Singh’s transaction with Mr. Edward. It is well-recognized that home invasion offences are particularly troubling “because they represent a violation of the sanctity of the home and the sense of security people feel when in their homes – and because they are frequently perpetrated against vulnerable individuals.”, see Singh at para.46, quoting R v. Wright 2006 CanLII 40975 (ON CA), [2006] O.J. No. 4870 at para. 14, which further quoted S. (J.)., 2006 CanLII 22101 (ON CA), [2006] O.J. No. 2654 at para. 34. In this instance, what could feel more secure than sleeping in one’s bedroom, only to be woken up to a pointed gun? Even if Mr. Khan was not holding the gun in his hand, he was an active participant in the invasion and remained a party until the struggle broke out between Mr. Singh and the gunman. Mr. Khan would have been in a very different position had he tried to prevent the gunman from pulling the gun out, tried. He exercised none of those options. By the time he ran out of the house, the struggle had escalated to a point of no return.

[103] Third, the pulling out of the loaded gun, the ordering of Mr. Singh and Mr. Singh-Goroya to go upstairs to Mr. Dev’s bedroom, followed by the order that Mr. Singh-Goroya get on his knees were additional aggravating features. Mr. Khan went along with the orders that were given and did nothing to prevent what was going on.

[104] Fourth, the combination of guns, drugs, and young guys is especially toxic and a scourge in the community. Guns and drug rip-offs are inherently very dangerous and their use must be denounced in the strongest of terms, see Singh at para. 63, and Roberts-Stevens, supra.

[105] Fifth, all three victims were unarmed and did nothing to provoke the violence. Although Mr. Singh was first to elbow the gunman, he did so in an effort to defend himself and his roommates.

[106] Taking all of these factors into account, Mr. Khan’s conduct resulted in a conviction of manslaughter with aggravating characteristics. While I accept the defense’s submission that in a number of cases put forward by the Crown, the nature and the extent of the violence was far more pronounced than what occurred at Donwood Court, those cases do not diminish the totality of the several aggravating characteristics in this instance. What occurred on July 16, 2018 requires a stern denunciation, albeit with a parallel consideration for Mr. Khan’s age and the prospects of his rehabilitation.

d. Are Mr. Khan’s offers to plead guilty to manslaughter on multiple occasions prior to trial a mitigating factor?

[107] Counsel for the defence referred the court to two authorities that suggested that offers to plead guilty to manslaughter, even if they are rejected by the Crown should operate as a significant mitigating factor in Mr. Khan’s sentencing. While I acknowledge that there is a disagreement between the defense and the Crown over the date of the first offer, I am more concerned that the authorities that were advanced to support this argument do not offer any specific guidance. In Denis, supra., at para.13, the offer to plead is merely listed as a mitigating factor, with no discussion about its relative strength or impact on the range of a sentence. The trial judge in Kimpe did the same.

[108] My greater difficulty lies with the contrast between Mr. Khan’s alleged willingness to plead guilty to manslaughter, his vigorous defence that he was not even a participant in the incident, putting his identification directly in issue, followed by his express admission in his comments to the court at the conclusion of the sentencing submissions to the effect that he should never have gotten into the vehicle. For the purposes of framing the offers as a mitigating factor, I find it very difficult to reconcile Mr. Khan’s willingness to plead guilty to manslaughter with a vigorous defence that put Mr. Khan participation in the armed home invasion.

[109] To be clear, although I recognize that an accused has the right to advance the defences he considers appropriate for his defence, it is wrong to actively mislead the trier of fact. More significantly, in the context of a mitigation analysis, Mr. Khan’s offers must be considered against the totality of the trial experience. To that end, I have difficulty accepting the complaint that Mr. Khan was obliged to participate in a 6-week trial, when as a result of his own strategy, the trial was extended by several days.

[110] In the result, the mitigating value of Mr. Khan’s offers to settle is relatively minor as compared to what it may have been had he not made his presence at the armed robbery an issue.

e. What if any, parity considerations apply to Mr. Khan in light of Mr. Albayaty’s sentence of 7 years, 3 months?

[111] Mr. Albayaty’s sentence of seven years and three months does not attract parity considerations because his sentence proceeded on facts that proved to be otherwise at trial.

[112] Parity principles are contained in s.718.2(b) of the Criminal Code. Similar offenders who commit similar offences should receive similar sentences. In R v. Jacko, 2010 ONCA 452 at para. 55, the Ontario Court of Appeal noted that parity “does not command identical sentences for co-accused, only similar sentences for co-accused whose participation in the offences is similar and who have similar antecedents, present circumstances and future prospects. Disparity of sentences among co-accused is not per se error.”, my emphasis.

[113] As noted above, Mr. Albayaty swore a detailed statement in support of his guilty plea that was anchored on his statement that he did not see a firearm and knew nothing about it. The sentence that Mr. Albayaty received, among other considerations, proceeded principally on the basis that Mr. Albayaty knew nothing about a firearm, did not see a firearm, and did not discuss its potential use. It also took into account Mr. Albayaty’s statement that he urged everyone to calm down when matters escalated and ran away when heard a gunshot. But that factual matrix bares little to no resemblance to the evidence at Mr. Khan’s trial. Mr. Khan saw the gun in the vehicle, he received it from Mr. Albayaty, and the two discussed its safety and the circumstances of its potential use. Even if Mr. Khan was not the one to pull the gun on the victims, at no time did he try to de-escalate the struggle among the parties. Had the evidence actually been as Mr. Albayaty described it, i.e., that Mr. Khan knew nothing about a gun and did not discuss its use, then indeed it would be difficult to arrive at a sentence for Mr. Khan that was greater than what was imposed on Mr. Albayaty. Indeed, having regard for his younger age and his better record, Mr. Khan’s sentence might even be less than what Mr. Albayaty received.

[114] If anything, Mr. Albayaty’s sentence, as a point of reference, can support a higher sentence for Mr. Khan. If an early plea on a factual foundation that excluded any knowledge of a firearm resulted in a sentence of just over seven years, then the knowledge of a firearm and the specific exchange about the gun’s safety and its use, must attract something greater than what Mr. Albayaty received.

f. What are the prospects for Mr. Khan’s rehabilitation?

[115] I find Mr. Khan’s rehabilitation prospects cautiously promising. Mr. Khan’s personal expression of regret and his express recognition that he made a mistake when he got into the vehicle on the fateful day in July was significant. His apology to Mr. Singh-Goroya’s family was also important. Although he did attribute his failings in part to other people who impacted him and on his drug use, I did not take that to mean that he was blaming others or seeking to justify his conduct. Nor did those comments undermine his expression of remorse and regret. Rather, when considered together with Mr. Khan’s expressed regret for getting into the car, his wish to be able to change the bad decisions he made in his life, and his express desire to move forward, they revealed an individual who has come to an understanding of what went wrong in his life and his decisions. That understanding holds promise for his rehabilitation. His indication that he would like to finish high school and become an electrician is a further indication that Mr. Khan is ready to turn his life around and change his ways and he should be supported in every way possible.

[116] Complementing Mr. Khan’s own expression of remorse and regret is his supportive family, and in particular, his cousin’s willingness to offer him employment. I reject the Crown’s assessment of his mother’s inability to appreciate the magnitude of her son’s problems. Not having heard directly from her about her son’s predicament, it is difficult to know if she genuinely was unaware of her son’s engagement with gangs and drugs, as suggested in the PSR, or if she chose to remain stoic and reserved in her overall comments. With a son in jail for the past three and a half years, I find it difficult to believe that she would not have appreciated the magnitude of her son’s predicament. Given her daily attendance at the trial, either personally or by zoom, what I saw was a caring and loving mother who has had to contend with various life burdens and challenges. As long as Mr. Khan respects his mother, I have little doubt that she will do her part to support his rehabilitation efforts.

[117] In coming to these views, I am mindful that Mr. Khan’s conduct while incarcerated has been problematic. I agree to some extent with the defence’s submissions that the jail environment cannot be compared to the community and that in any event, the actual circumstances of Mr. Khan’s reported misconducts may not be full understood. However, I am troubled by the number of incidents, the reported assaults and the reference to the use of an imitation weapon in one instance. This suggests to me that Mr. Khan may require significant counselling and supports to manage his anger and to come to terms with his circumstances. To the extent possible, he should be provided with the appropriate counselling even while he remains incarcerated as soon as possible.

g. What are the appropriate “Summers”, “Duncan” and COVID19 pre-sentencing credits for Mr. Khan

[118] The Crown and the defense agree that Mr. Khan should be given a credit for time spent in pre-sentence custody in accordance with s.719(3.1) of the Criminal Code and R v. Summers 2014 SCC 26, [2014] 1 S.C.R. 575. Mr. Khan has been in custody since July 16, 2018. That means he has spent a total of 1252 days in custody, which translates to approximately 42 months. Enhanced at 1.5 days for each day spent in pre-sentence custody, that produces a credit of 63 months, or 5 years and 3 months.

[119] The next credit for consideration is on account of the effects of the full and partial lockdowns at MCC and the various restrictions and limitations that Mr. Khan has had to endure and that are outlined above in his position.

[120] When harsh conditions prevail during pre-sentence incarceration, mitigation greater than the 1.5 days credit as anticipated by s.719(3.1) of the Criminal Code may be appropriate. When considering such credit, the court will consider the conditions of the pre-sentence incarceration and the impact of those conditions on the defendant. Referred to as the “Duncan credit”, the Ontario Court of Appeal, in R v. Duncan, 2016 ONCA 754 at para. 6, held that “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.”

[121] Most recently, in R v. Marshall, 2021 ONCA 344, at paragraphs 50-53, the Ontario Court of Appeal gave the following guidance:

[50] … A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

[51] It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[52] The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[53] Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). …

[122] With respect to prolonged lockdowns, I note the following observation in R v. J.B., 2016 ONSC 939, [2016] O.J. No. 855 at para. 22:

22 The fact that an inmate has experienced lockdowns certainly does not lead automatically to any additional mitigation of their ultimate sentence. However, a prolonged lockdown that is unrelated to the misconduct of the accused before the court may constitute harsh conditions that merit some mitigation of sentence. A lockdown is not the norm within the institution and it should not be viewed as such. When a lockdown occurs, the inmate is cut-off from contact with the outside world, including family, friends and counsel.

[123] While there is no mathematical formula to determine the appropriate “Duncan credit”, credits have ranged from one day to a day and a half for each day spent in lockdown, in addition to the “Summers” credit, see R v. Persad, 2020 ONSC 188, [2020] O.J. No. 95, R v. Antrobus, 2020 ONSC 600, and Dalmar, supra. In some instances, courts have differentiated between the full lockdowns and partial lockdowns, see R. v. Perry, 2020 ONSC 8173. In other instances, courts have taken a global approach to the various hardships encountered by the offender while in presentence custody, see R v. Fermah, 2019 ONSC 3597, [2019] O.J. No. 3037.

[124] The restrictions resulting from COVID19 have also attracted additional presentence credit. In Perry, supra., the offender received 3 months additional credit for the nine months of presentence custody that coincided with the pandemic. In Dalmar, supra., the court differentiated between the “Duncan” credit and the COVID19 credit.

[125] Turning to Mr. Khan’s circumstances, while I am inclined to accept Mr. Khan’s record-keeping over MCC’s I note that the difference in the accounting of the full day lockdown was only four days, resulting in a total of 344 days of full lockdown days from July 16, 2018 to the present. I do recognize that Mr. Khan did not begin to maintain records until August 2020 but given the marginal differences between his date and MCC’s I am content to use 344 days of full lockdown for the consideration of an additional credit.

[126] The second observation is that in Mr. Khan’s record-keeping, I do not see a distinction between lockdown days caused by operational difficulties and those caused by COVID19 outbreaks and related limitations. For example, Mr. Khan recorded 248 full lockdown days for the period between August 2020 and October 2021. Given the passage of approximately 670 days, or 21 months to date since the Pandemic was declared on March 17, 2020 there is a clear overlap in the accounting and it is evident that several of those lockdowns resulted from the consequences of the COVID19 restrictions and measures. I rely on Dalmar, supra., which involved an offender in custody at MCC to enhance Mr. Khan’s evidence on the conditions at MCC and their effects on the inmates. I highlight the overlap only to conclude that on the evidence before me, I favour a global “Duncan” credit on account of the sum of the hardships caused by both COVID19 and non-COVID19 limitations and shortcomings.

[127] With respect to the effects of the prolonged lockdowns at MCC, I accept Mr. Khan’s evidence that they have had a profound negative impact on his emotional well-being. I refer the reader to paragraphs 34 to 39 of my reasons for Mr. Khan’s specific evidence on the harsh effects to his emotional well-being. I have little reason to doubt his evidence on this point.

[128] The partial lockdown days present a different challenge. I have no difficulty accepting Mr. Khan’s data on this, resulting in a total of 90 partial-lockdown days. However, MCC’s explanation for those restrictions, which Mr. Khan does not dispute, lead me to conclude that they do not rise to the level of attracting additional credit over and above what is accounted for in the “Summers” credit. I rely on the Perry, supra., for this conclusion:

There can be no dispute that inmates of custodial facilities must be treated humanely. However, the operational requirements inherent in the day-to-day running of a provincial remand centre necessarily impact on conditions of detention. There will be occasions when the daily routine of the institution must be interrupted and lockdowns imposed for legitimate reasons related to the nature of a custodial facility, including the need to ensure the safety of those who are incarcerated and those who work on site, and the overall maintenance of the institution. I include in this broad category lockdowns to conduct searches and other investigations, lockdowns because of problematic inmate behaviour, and lockdowns to perform maintenance of building systems. Those kinds of lockdowns and other conditions that make pre-sentence detention more onerous than post-sentence detention are accounted for in the one and a half to one calculus: see R. v. Summers, 2014 SCC 26, at para. 70. I do not agree that they constitute the ”particularly harsh” conditions referenced in R. v. Duncan, 2016 ONCA 754.

[129] Turning then to the applicable “Duncan-COVID19” global credit, while I note the direction in Marshall that it be treated as a mitigating factor, I conclude that such mitigation results in a credit of 18 months to be factored into my determination of an appropriate sentence, which I will discuss below.

Aggravating and Mitigating factors for Mr. Khan

[130] Having regard for the foregoing answers to the specific legal questions and in the interests of summarizing my findings, the following are my findings on the aggravating factors:

a. The manslaughter consisted of a number of aggravating characteristics discussed above. The incident was an armed home invasion, it included the use of a loaded gun and the victims were unarmed and vulnerable. Even if Mr. Khan was not the person to be holding the gun, he was a party to a violent home invasion knowing that somebody else had a gun and knowing that it may be used. This makes his moral blameworthiness very high.

b. Mr. Khan’s involvement was motivated by sheer greed and naked opportunism. He engaged in the incident in a reckless manner and without any regard for human life. This is consistent with his extensive involvement with gangs. It is also worrisome that he would be so reckless and indifferent at such a young age.

c. The toxic mix of a gun with drugs compounded the dangerous nature of the offence.

d. The devastation to Mr. Singh-Goroya was irreparable to him and to his family. Mr. Singh-Goroya was just 27 years of age.

e. Even if some of the recorded misconducts at MCC are questionable, the totality of incidents are problematic and aggravating as they reveal somebody who gets into frequent arguments and altercations. The instance of Mr. Khan’s alleged use of an imitation weapon is especially problematic and puts into question aspects of his openness to change his ways and turn his life around.

[131] The mitigating factors for consideration are the following:

a. Mr. Khan was just 18 years old at the time of the incident.

b. Although he had a youth record, this is his first adult offence.

c. Mr. Khan demonstrated remorse and a willingness to take responsibility for his actions. This is significant for his rehabilitation prospects.

d. Mr. Khan’s supportive family, including a cousin who is prepared to offer him employment will be essential in his rehabilitation efforts.

e. The prolonged full-time lockdowns over an extended period of time at MCC, combined with the extensive COVID19 restrictions are a very significant mitigating consideration. Inmates must be treated humanely and not bare the brunt of institutional shortcomings.

f. Mr. Khan’s offers to settle, albeit with the qualification discussed above.

Applicable Sentencing Ranges in Manslaughter Cases

[132] The maximum sentence for manslaughter under s.236 of the Criminal Code is life imprisonment. Manslaughter is a serious offence because it involved the taking of a life and ordinarily attracts a lengthy sentence: see R v. Head, [1985] O.J. No. 153 (C.A.). However, as evidenced by the numerous cases submitted by both the Crown and the Defense, the diversity of circumstances that may result in a conviction of manslaughter correspond with a very wide range in the applicable sentences. At one end, one will have circumstances that reflect an unintentional and almost accidental killing. At the other end, the circumstances may come close to a murder, Perry, quoting R. v. Carriѐre (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at paragraph 10.

[133] To arrive at an appropriate sentence, it is necessary to consider the context in which the manslaughter occurred, meaning the circumstances of the offence and the offender, see R v. Simcoe, 2002 CanLII 5352 (ON CA), [2002] O.J. No. 884 (C.A.).

[134] In this case, given Mr. Khan’s youthful age on the one hand but the aggravating characteristics of the manslaughter on the other, I must arrive at a sentence that balances individual denunciation and deterrence with the demands of rehabilitation.

[135] Having regard for the voluminous cases submitted by counsel for both the Crown and the Defense, the ranges for consideration are as follows. For a manslaughter with accompanying aggravating features, referred to in some cases as “aggravated manslaughter”, the applicable range of sentence is between 8 to 12 years, see: R v. Lee, 2021 ONSC 6704, R v. Tahir [2016] O.J. No. 859 (C.A..), R v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.), and Singh, supra. In cases where the offender was the gunman, the applicable range of sentence is between 11 and 13 years. In instances where the offender was not the gunman but was an active participant, the sentences have ranged from seven to nine years. Finally, where the offender had a peripheral role, such as being a getaway driver or otherwise waited outside, the sentences have been in the range of four to seven years, with a number of them at the four to five year mark.

[136] With respect to the youthfulness of an offender and the significance of rehabilitation, I expressly recognize the Ontario Court of Appeal’s repeated direction that the primary objective in the sentencing of a youthful first offender is individual deterrence and rehabilitation. Custodial sentences should be imposed where the gravity of the offence dictates that no other sentence is appropriate, see R v. S.K., 2021 ONCA 619 at paras.11 and 12, and Darel, supra.

[137] Taking all of the foregoing into consideration, I find that an appropriate sentence for Mr. Khan is 8.5 years, or 102 months. I arrive at this decision for the following reasons. First, unlike the offenders in the defence examples whose peripheral roles resulted in sentences of four to five years, Mr. Khan was an active participant in the armed home invasion. His circumstances are easily distinguishable from cases such as of Tsega, supra., who had no knowledge of the existence of a gun, or Cole, in R v. Cole, [2004] O.J. No. 1691 (S.C.) who waited outside during a robbery. Mr. Khan’s circumstances are also distinguishable from R v. Henry, where Henry ran away after being threatened. Mr. Khan ran away when the struggle broke out and matters appeared to be getting out of hand.

[138] Mr. Khan’s subjective knowledge of the existence of a gun and its planned use distinguishes him from the circumstances in R v. Thompson, 2010 ONCA 463, R v. Sahal, 2016 ONSC 6864, R v. L.B. [2006] O.J. No. 3721, and R v. Kwayke, 2015 ONCA 108. In Kwayke, the offender did not have any subjective knowledge that his co-accused would be using a gun.

[139] Eight and a half years lies at the bottom of the range for a manslaughter with the numerous aggravating features of Mr. Khan’s offence. This decision incorporates a “Duncan” credit of 18 months in accordance with the Ontario Court of Appeal’s direction in Marshall, supra., that the “Duncan” credit not be deducted from the otherwise appropriate sentence but that it be one of the factors to be taken into account in the determination of the appropriate sentence. Stated differently, absent the “Duncan” credit, Mr. Khan’s sentence would have been 10 years.

[140] The eight and half years also takes into account Mr. Khan’s age and prospects for rehabilitation. Absent that consideration, and having regard for the gravity of the offence and Mr. Khan’s high moral blameworthiness, I would have set the sentence at 11 years to underscore the need for deterrence and denunciation. The sentence of eight and a half years strikes an appropriate balance between the need for individual deterrence and Mr. Khan’s rehabilitation. Even with Mr. Khan’s age, it cannot be ignored that a young life was lost, that the incident was the result of a toxic combination of drugs and a gun, and that given Mr. Khan’s extensive involvement with gangs from as early as 14 years of age, he had extensive experience to know that he and the others set out on a very dangerous outing, without any regard for human life, with poor planning, and with recklessness.

[141] Finally, having regard for parity principles, Mr. Khan’s sentence at eight and a half years is not much greater than Mr. Albayaty’s sentence of 7 years and three months. Mr. Albayaty is not that much older than Mr. Khan. Mr. Albayaty gained the benefit of his sentence principally on a narrative that he did not see any gun and was not aware of any intention to use a gun. Mr. Khan may not have Mr. Albayaty’s extensive criminal record, but very significantly, he had the subjective knowledge of the gun and its anticipated potential use. On the totality of Mr. Khan’s aggravating and mitigating factors, a sentence that is approximately one year greater than Mr. Albayaty’s is reasonable and just.

CONCLUSION

[142] To conclude, Mr. Khan is sentenced to eight and a half years, or 102 months for manslaughter. That sentence incorporates a Duncan credit of 18 months. From the sentence of 8.5 years, a “Summers” credit of five years and 3 months, (63 months) is to be deducted, leaving Mr. Khan with a remaining 39 months, three years and three months remaining custody.

[143] In accordance with s.109(2) of the Criminal Code, Mr. Khan is also prohibited from possessing any firearm for life.

[144] Finally, as manslaughter is a primary designated offence within the meaning of s.487.01(a) of the Criminal Code, a DNA order is mandatory and Mr. Khan is to provide a DNA sample.

Tzimas J.

Released: January 17, 2022

SCHEDULE A

CROWN SENTENCING AUTHORITIES:

ASF, Guilty Plea and Reasons for Sentence & Criminal Record – R. v. Nebill Albayaty, per Justice K. McLeod, March 9, 2020

R. v. Al-Rubayi [2020] O.J. No. 5960 (S.C.J.)

R. v. Jones Solomon 2015 ONCA 654, [2015] O.J. No. 5020 (C.A.)

R. v. Webber [2013] O.J. No. 1185 (S.C.J).

R. v. Funes [2015] O.J. No. 5876 (S.C.J.)

R. v. Kwakye 2015 ONCA 108, [2015] O.J. No. 707 (C.A)

R. v. Hong 2016 ONSC 2654, [2016] O.J. No. 2175 (S.C.J.), conviction affirmed 2019 ONCA 170, [2019] O.J. No 1148 (C.A.)

R. v. Reid, [2018] O.J. No. 6471 (S.C.J.)

R. v. Singh 2018 ONSC 3850, [2018] O.J. No. 3292 (S.C.J.)

R. v. Chretien [2009] O.J. No. 2578 (S.C.J.), affirmed on other grounds 2014 ONCA 403, [2014] O.J. No. 2351 (C.A.)

R. v. Squires, 2011 ONCJ 437, [2011] O.J. No. 6737 (O.C.J.)

R. v. Tsega [2021] O.J. No. 3830 (S.C.J).

R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.)

R. v. Tahir [2016] OJ No. 859 (C.A.)

R. v. Lee 2021 ONSC 6704, [2021] O.J. No. 5229 (S.C.J.)

R. v. Dupuis, 2014 ONSC 3573, [2014] O.J. No. 2797 (S.C.J)

R. v. Yaali [2018] O.J. No. 3058 (S.C.J.), affirmed [2020] O.J. No. 831 (C.A.).

R. v. Roberts Stevens 2019 ONSC 257, [2019] O.J. No. 103 (S.C.J.)

R. v. Buhkari [2007] O.J No. 5807 (S.C.J.)

R. v. Norman [2005] O.J. No. 1073 (S.C.J.)

R. v. Perry [2020] O.J. No. 5817 (S.C.J.)

R. v. Hanan 2020 ONSC 1209, [2020] OJ No. 2107 (S.C.J.)

DEFENCE SENTENCING AUTHORITIES:

Sentencing Range Case Law

R. v. Cole, [2004] O.J. No. 1691 (S.C.)

R. v. Henry, 2015 ONSC 3905

R. v. Thompson, 2010 ONCA 463

R. v. Sahal, 2016 ONSC 6864

R. v. L.B., [2006] O.J. No. 3721

R. v. Sinclair, 2009 MBCA 71

R. v. Yusuf, 2012 ONSC 2421

R. v. Kwakye, 2015 ONCA 108

R. v. Dourhnou, 2015 ONSC 839

R. v. G.L., [2005] O.J. No. 855

R. v. Ingram-Piruzevski, 2019 ONSC 4470

General Principles

R. v. S.K., 2021 ONCA 619

R. v. Denis, 2015 ONSC 3179

R. v. Kimpe, 2010 ONCA 812

R. v. Pearce, 2021 ONCA 239

Pre-Sentence Custody Credit

R. v. J.B., 2016 ONSC 939

R. v. Fermah, 2019 ONSC 3597

R. v. Persad, 2020 ONSC 188

R. v. Steckley, 2020 ONSC 3410

R. v. Dalmar, 2021 ONCJ 89

R. v. Antrobus, 2020 ONSC 600

R. v. Abdella, 2020 ONCJ 245

R. v. O.K., 2020 ONCJ 189

R. v. Marshall, 2021 ONCA 344

R. v. Bristol, 2021 ONCA 599

COURT FILE NO.: CR-20-219

DATE: 2022 01 17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

HAMAS KHAN

REASONS FOR SENTENCING

Tzimas J.

Released: January 17, 2022