COURT FILE NO. CR-21-10000104-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ABDULKADIR HANDULE
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE B. O’MARRA
on July 21, 2022, at 361 University Avenue, TORONTO
APPEARANCES:
A. Tenhouse Counsel for the Crown
A. Gibbons Counsel for the Crown
D. Derstine Counsel for Abdulkadir Handule
K. Anor Counsel for Abdulkadir Handule
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
NO. DESCRIPTION PAGE NO.
Reasons for Sentence 1
LEGEND
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Transcript Completed:
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THURSDAY, JULY 21, 2022
THE COURT: Good morning, all.
MS. TENHOUSE: Good morning.
MR. DERSTINE: Good morning, Your Honour.
R E A S O N S F O R S E N T E N C E
O’MARRA, J. (Orally):
Yes, in the matter of Her Majesty the Queen and Abdulkadir Handule these are my reasons for sentence.
THE VERDICTS
On February 24, 2022, Mr. Handule was found guilty by the jury of the following:
The second-degree murder of Jahvante Smart.
The second-degree murder of Ernest Modekwe.
The aggravated assault by wounding of Michelle Weir; and
Discharge of a firearm with intent to wound, maim, or disfigure, or endanger the life of Jahvante Smart by firing a handgun at Michelle Weir.
All of these crimes were part of a single incident in the early evening hours of June 30th, 2018.
On May 27 of this year, the court received and heard evidence and submissions on the issue of sentence. These are among the most serious offences defined in the Criminal Code of Canada. The mandatory sentence on each count of second-degree murder is life imprisonment.
The main issue that I must decide relates to the period of parole ineligibility on the two counts of second-degree murder. Section 745.4 of the Criminal Code provides that at the time of the sentencing under section 745 of an offender who has been convicted of second degree murder, the judge who presided at the trial of the offender may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than 25) without eligibility for parole, as the judge deems fit in the circumstances.
Jury recommendations as to parole ineligibility, pursuant to section 745.2 of the Criminal Code, need not be unanimous. In the case before me, the recommendations of the jurors ranged from ten years to twenty years.
The proposed range of sentence related to parole ineligibility, in this case, has been significantly narrowed by the helpful submissions of both counsel. The Crown seeks 20 years, and the defence suggest that no more than 15 years is appropriate. There is no number that can compensate for the loss of these two young men and the wounding of Ms. Weir.
In R. v. Kyle Sparks MacKinnon, 2019 ONSC 3436, Justice MacDonnell thoroughly reviewed precedents involving multiple murders arising from a single event in which concurrent periods of parole ineligibility were imposed. He found that the appropriate range was 18 to 25 years of parole ineligibility. I agree with his analysis.
NATURE OF THE OFFENCES AND THE CIRCUMSTANCES SURROUNDING THEIR COMMISSION
Section 724.2 of the Criminal Code deals with the factual basis for sentencing where the court is composed of a judge and a jury. Subsection 2 provides as follows:
Where the court is composed of a judge and jury, the court:
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
The verdicts of guilty on two counts of second-degree murder in this case represent findings by the jury that Mr. Handule was one of two gunmen who opened fire towards Jahvante Smart in the early evening of June 30th, 2018, as a large crowd gathered in, or near the entrance of the Cube Nightclub on Queen Street West in Toronto. The shooting was a joint enterprise, an endeavour between Mr. Handule and the man referred to throughout the trial as “Black Hoodie Man.” They were joint participants in the shooting that caused the deaths of Jahvante Smart and Ernest Modekwe, as well as the wounding of Michelle Weir. When Mr. Handule opened fire towards the victims he had the intent required for murder.
At the time of their deaths, Jahvante Smart was 21 years of age, and Ernest Modekwe was 28 years of age. The sudden and violent deaths of these two young men has caused ripples of grief and sadness in their extended families, friends, as well as in the community.
NOT PROVICATION
The defence submits that there should be some mitigation of sentence based on “aspects of provocation” that arose at trial. Video evidence at trial showed that after an intermittent verbal exchange between Mr. Smart and Mr. Handule, Mr. Smart drew a handgun and fired shots toward Mr. Handule at close range. Mr. Handule was not struck, and fortunately, nobody else was struck by these shots.
The jury was instructed on the partial defence of provocation that would have reduced murder to manslaughter. The jury were told that there was no onus on the defence to prove provocation. The onus rested on the Crown to prove beyond a reasonable doubt that Mr. Handule was not acting under provocation when the fatal shots were fired that caused the deaths of Mr. Smart and Mr. Modekwe. By their verdicts, the jury rejected the notion that Mr. Handule was provoked before the fatal shots were fired. They were not left with reasonable doubt on the issue.
Video evidence at trial shows Mr. Smart running away from Mr. Handule west on Queen Street. Mr. Handule is seen to pick up his handgun that had fallen out of his grip. He then runs after Mr. Smart with his arms outstretched, holding and firing his gun as he pursued Mr. Smart. The “Black Hoodie Man” is seen with arms outstretched firing his handgun in the same direction as Mr. Handule who was chasing Mr. Smart.
Based on the evidence at trial and the verdicts of the jury, I do not find that there is any mitigation relating to provocation that attorns to the benefit of Mr. Handule on sentence.
CHARACTER OF THE OFFENDER
Mr. Handule was born October 25, 1995. He was 22 years of age at the time of these offences and is now 26 years of age. He does not have a criminal record. He grew up in the Jane/Driftwood area of Toronto, which was described by his counsel as “a tough racialized community”. His father was largely absent from the family. Mr. Handule lived with his mother, four sisters, and three brothers. He graduated from high school. He has worked in construction, carpentry, and general labour. He contributed financially to the maintenance of his home by giving much of his salary to his mother.
The court received on sentence letters of support for Mr. Handule, and these included the following from his mother, Kafia Saeed, his sister, Ikram, a cousin, Idill Obsiye, a friend, Sarah Handule, his sister, and Sara S, his cousin. They have seen the good in Mr. Handule and pledge to continue their support for him going forward.
PRE-SENTENCE CUSTODY
Counsel advised this court that as of May 27, 2022, the date of sentence submissions and evidence, Mr. Handule had been in custody for some 1,009 days. Much of that time has been since the COVID pandemic with its attendant impact on society at large, and more particularly, on those being held in custody.
Counsel advised that as of May 27, 2022, Mr. Handule had experienced lockdowns for full, or parts of 534 days. The defence do not a seek a specific credit for harsh presentence custodial conditions based on the case of R. v. Duncan, 2016 ONCA 754. However, the defence submits it is one of several factors to be weighed in my assessment of the appropriate number of years of parole ineligibility.
I agree that the COVID impact on those in custody has added a layer of hardship to those being detained since early 2020. I have considered that in this case without ascribing a specific amount of credit.
VICTIM IMPACT STATEMENTS
Thirteen victim impact statements related to the deaths of Jahvante Smart and Ernest Modekwe were presented at the sentence hearing. In addition, a community victim impact statement was received. These statements were powerful and poignant confirmations of the pain, grief, and devastation caused by these crimes.
Sections 722 and 722.2 of the Criminal Code, provide that the court at sentencing shall consider the impact of the crimes on the named individual and community victims.
In R. v. A.G., 2015 ONCA 159 at paragraph 73, the court held that it is not an error in principle for a sentencing judge to determine that the impact of the crime, as set out in a victim impact statement, is an aggravating factor. Otherwise, victim impact statements would have limited utility and the mandate to consider them as part of the sentencing process in section 722 of the Criminal Code would be rendered meaningless.
In R. v. F.O., 2016 ONSC 7654, there was a gun fight that broke out at a community beach party when the offender was denied admission. There were three shooters and close to 30 shots were fired. Two people were killed, and more than 20 others were wounded, including a 22 month old child. Justice Nordheimer of this court, as he then was, made the following thoughtful comments regarding the impact of such an incident on the victims, their families, and the community at paragraphs 17 through 19:
I will not pretend that I can truly appreciate the extent of the impact that the loss of a young girl, or a young man, has on their parents, on their brothers and sisters, and on other family members. I do realize, though, that the grief that remains with them, and the emptiness that they continue to feel, is deep and it is permanent. Violence, in this case unthinkable violence, does not discriminate in the harm that it spreads. It is harm that impacts most significantly on the people closest to the victims, but it also impacts on our entire community, particularly when individuals who are so young, and so promising, are lost to us.
None of that changes the reality that, whatever decision I make respecting the respondent, will not change the world that now exists for the loved ones of the victims. The justice system has a role to play in redressing the harm that has been caused, but it is a very limited role. Nothing in our justice system, or any other justice system, could ever possibly right such a terrible wrong.
That reality does not mean, however, that we should ever become complacent, or indifferent, about these acts or their consequences. Nor should we ever fail to take steps, that are available to us as a society, in an effort to prevent such events from being repeated. As one of the victims in this case alluded to, we must never allow cases, such as this, to be treated as just another headline in this city.
In regard to Jahvante Smart, I received and have considered victim impact statements from Pamela Bent, his mother, Nelly (ph), a cousin, Anna, a friend, Christine (ph), an aunt, a brother, and an aunt, Camille Pelly (ph), a sister, Natasha Ambursley (ph), an aunt, and Danny Berkeley-Scott, who was a friend of both Mr. Smart and Mr Modekwe.
In regard to Mr. Modekwe, I received and have considered victim impact statements from Okwii Modekwe, his father, Thessy Modekwe, his mother, Chiadi Modekwe, a younger brother, Chinasa Modekwe, a sister. And in addition, I did receive a community impact statement from the Victim Services of Toronto.
Two young men died on June 30th, 2018. They are now added to a long list, a too long list, of victims of shootings in this city, but they are not just numbers. Their deaths have left a hole in the hearts of those who knew and loved them. Their deaths are first and foremost a huge loss to their friends and family. Their deaths have also had a significant negative impact on this community and this city.
MITIGATING FACTORS
Mr. Handule presents as a young black man who grew up in what his counsel has described as a challenging racialized community. He is young, he is young even today. He has no criminal record. He has strong family support. I might say that it's admirable to see the support of his family that has come forward. It is a totally unselfish and admirable thing that they have come forward, and I have considered what they had to say. Their support for Mr. Handule, notwithstanding the terrible events of June 30th is some indication of positive prospects for rehabilitation. They see good in Mr. Handule. A brief expression by Mr. Handule of remorse after the evidence and submissions and sentence was also made.
AGGRAVATING FACTORS
In this case, in my view, these overwhelm the mitigating factors. Mr. Handule brought an illegal, loaded, and concealed handgun to a public area where many people were gathered. There were two victims who have died in this incident. Two intentional killings. One by the law relating to transferred intent. One citizen who had absolutely nothing to do with anyone involved in this case, Ms. Weir, was wounded. There could have easily been many more dead or wounded. Mr. Handule was acting in concert with another shooter. Ernest Modekwe and Michelle Weir appear to be unintended targets of shots intended for Jahvante Smart. But it was entirely foreseeable that the unintended targets might be hit by Mr. Handule and his co-perpetrator.
It is, in my view, clear that Mr. Handule, on that night and in those circumstances, was utterly indifferent to the risk his lethal actions presented to the many people in the immediate area of the shooting at that time and place.
In R. v. Danvers, 2005 CanLII 30044 (ON CA), also reported at 199 CCC (3d) at 490, in that case the accused had been convicted and sentenced for second-degree murder. The crime involved a shooting outside a busy nightclub in Toronto. The accused was sentenced to life imprisonment without parole eligibility for 18 years. On appeal the number of years of parole ineligibility was reduced to 15 years. The court commented on the paramount sentencing submissions relating the use of handguns in public places in Toronto. At paragraphs 77 and 78:
In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:
It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.
The court went on as follows:
There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed. I am satisfied that in this case, the mandatory life sentence with an increase in parole eligibility to 15 years satisfies that concern.
ANCILLIARY ORDERS
Pursuant to section 109 of the Criminal Code, there will be a lifetime weapons prohibition for weapons as defined in the Criminal Code.
Pursuant to section 457.051 of the Criminal Code, there will be an order that he provide a sample of his DNA for entry into the system.
Pursuant to section 743.21 of the Criminal Code, during the custodial sentence Mr. Handule is to have no contact, direct or indirect, with Michelle Weir, the extended family of Jahvante Smart, the extended family of Ernest Modekwe, and Daniyal Haider.
SETTING PAROLE INELIGIBILITY
There is no number of years that I can set that will heal the wounds caused by these crimes. The number that I set will not be an automatic release date but rather, a date that Mr. Handule can apply to be considered for parole.
The sentence concurrent on counts one and two will be life.
The parole eligibility date will run from that date, from the date he has been in custody on these charges.
Years from now, if and when Mr. Handule applies for parole, the record that will be before the Parole Board will include the statements filed in support of Mr. Handule, but also, the statements of the impacts of these crimes on the victims, their families, and the community. And also, before that tribunal will be a transcript of what I have had to say today.
For a single count of second-degree murder, parole ineligibility could be set as high as 25 years. In all the circumstances of these two murders and the other offences, applying the statutory factors, I am setting parole ineligibility at 20 years.
On count one, which is the second-degree murder of Jahvante Smart, the sentence is life imprisonment with parole ineligibility set at 20 years.
On count two, the second-degree murder of Ernest Modekwe, a concurrent life sentence and a concurrent parole ineligibility of 20 years.
On count three, the charge of aggravated assault relating to Michelle Weir, seven years concurrent.
And on count four, discharge of a firearm with intent to wound, maim, or endanger life, seven years concurrent.
Are there any questions about the disposition?
MR. DERSTINE: No, thank you.
MS. TENHOUSE: No, Your Honour. Thank you.
THE COURT: And I’ve said it before, I want to thank counsel for their excellent work on this sad case, sad start to finish, terrible impact on so many people, including the family of Mr. Handule and Mr. Handule but more so, obviously, the victims. So, thank you. And, Madam Registrar, I have the matter at noon that I’ll deal with from my chambers.
MS. TENHOUSE: Is -- is Your Honour going to be sending us the electronic version of this, or should we order it?
THE COURT: I think so. I’m just reading from my notes, but I will -- sure. A transcript, sure, will be ordered, and by all means --
MS. TENHOUSE: Thank you.
THE COURT: Thank you, all.
MR. DERSTINE: Thank you.
...Whereupon this matter was concluded.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Octavia Cumberbatch, certify that this document is a true and accurate transcript of the recording of R. v. Handule in the superior Court of Justice, held at 15 Bridge Street West, Belleville, Ontario, taken from Recording No.4899_july21,2022.dcr, dated July 21, 2022.
Date (Authorized Transcriptionist)