Overview

[1] On March 30, 2022, following a 13-day trial, a jury found the accused, Birhan Imam, not guilty of the offence of attempted murder, but guilty of aggravated assault contrary to s. 268(1) of the Criminal Code, and guilty of carrying a concealed weapon contrary to s. 90(1) of the Criminal Code. On June 3, 2022, I heard evidence and submissions respecting the appropriate sentence for Mr. Imam.

[2] For the reasons that follow, an appropriate sentence for these offences would be five and one-half years in prison. However, based on credit due to Mr. Imam for his lengthy period of pre-trial custody – approximately three years and three months - I conclude that his sentence should be time-served.

Background

[3] The charges arose from an incident in a shopping mall in North York on the evening of May 8, 2018. Following an altercation between Mr. Imam and Harrison Ndlovu outside the mall, Mr. Imam pursued Mr. Ndlovu into the mall where there was a physical confrontation in which Mr. Imam repeatedly stabbed Mr. Ndlovu with a knife that he had removed from his pocket. It is not clear what, if anything, provoked the stabbing, and Mr. Ndlovu did not appear to fight back.

[4] The stabbing was recorded on cameras. Many bystanders were present, shouting at Mr. Imam to stop. Eventually, two brave people stepped in and pulled Mr. Imam away, following which he left the scene. A number of people then attended to Mr. Ndlovu’s injuries which included multiple stab wounds to his head, face, neck and torso. There was a large amount of blood on the floor.

[5] Paramedics arrived quickly. Concerned that he might “bleed out”, they quickly transported Mr. Ndlovu to a trauma centre at Sunnybrook Hospital. Mr. Ndlovu survived and appeared at a police station about 10 days after the attack, after he was released from hospital. Photographs were taken of his injuries. He did not testify at the trial, and there is no evidence of what impact, if any, his injuries have had on him.

[6] Mr. Imam was described as having a blank look immediately after the stabbing. A minute or so after the fight, he returned to the scene and asked a security guard “what happened” to Mr. Ndlovu. The guard, who was familiar with Mr. Imam, said that he looked “out of it.” One of Mr. Ndlovu’s friends then approached Mr. Imam, saying “you did it” and tried to fight with him. Mr. Imam fled the mall.

[7] The security guard pursued Mr. Imam, losing sight of him briefly when he entered a subway station, but saw him again a few minutes later on the other side of Yonge Street from the mall, staring at a wall. The security guard agreed that Mr. Imam, who he knew as “John”, appeared to be high, saying it was like he “wasn’t there” or, as put to him in cross-examination, as if the “the lights were on but nobody was home.” He had never seen Mr. Imam like this before.

[8] Police arrested Mr. Imam on Yonge Street a minute or two later, which was within 10 or 15 minutes of the stabbing. A black knife matching the description of the weapon used in the stabbing was found in his pocket.

[9] Although Mr. Imam responded to the police demand to stop and get down on the ground, he was otherwise unresponsive to the police. One of the arresting officers testified of the need to prop Mr. Imam up when he was arrested and handcuffed, and described him as acting abnormally, as if in a daze, unable to focus, non-responsive, not looking at people, and sweating profusely. This caused him to call for an ambulance, as he was concerned about Mr. Imam’s mental and physical health. The officer said had no idea if Mr. Imam understood anything.

[10] An ambulance came quickly and Mr. Imam was taken to a hospital immediately. A police officer who accompanied Mr. Imam said he smelled an odour of alcohol and observed that Mr Imam’s eyes were bloodshot. In the ambulance, Mr. Imam said “take my blood, take my blood” several times, which a police officer said “didn’t make sense.” Mr. Imam also asked “where am I” at least once in the ambulance. When the officer tried to explain the reason for Mr. Imam’s arrest, it was as if the officer wasn’t there or “didn’t exist.” On the other hand, Mr. Imam told the paramedics in the ambulance that he drank gin, and smoked weed. And he gave them his name and spelled it for them. Upon arrival at the hospital, Mr. Imam told the triage nurse he “drank gin.”

[11] About an hour after arriving at the hospital, which was about 2 hours after the stabbing, Mr. Imam was responsive to the police, appeared to understand why he was there and exercised his right to counsel. Later that evening he told the police he drank about 10 ounces of gin.

[12] Blood taken from Mr. Imam at the hospital showed a blood alcohol content of approximately 170 mgs of alcohol per 100 mls of blood. Expert evidence from a toxicologist calculated that between 7 and 7:30 PM on May 8, 2018, Mr. Imam’s blood alcohol content would have been between 170 and 210mgs. This level of alcohol was consistent with having consumed about 11 ounces of gin.

[13] The expert evidence was that an individual with this level of alcohol would show signs of significant intoxication, and possible effects would include loss of inhibition, a negative impact on the ability to think things through, and possibly impaired judgment or decision-making. This can result in people engaging in highly risky behaviour in which they don’t fully appreciate the consequences of their actions as their thought process is impaired and they may be operating in a fog.

[14] I ruled that the defence of extreme intoxication contemplated in the Supreme Court decision in R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, was not supported by the evidence and would not be left with the jury: R. v. Imam, 2022 ONSC 1931. However, I instructed the jury that intoxication could be a defence to the attempted murder charge, which is a crime of “specific intent”, but not to the charges of aggravated assault and carrying a concealed weapon which are crimes of “general intent”, relying on the jurisprudence addressing the common law defence of intoxication emanating from the seminal case of DPP v. Beard, [1920] AC 479.

[15] It is reasonable to conclude that the jury gave effect to the defence of intoxication in acquitting Mr. Imam of attempted murder.

Positions of the parties

[16] The Crown seeks a total sentence of between nine and ten years imprisonment, based on the seriousness of the aggravated assault, less credit for time-served in pre-trial custody. Mr. Imam was arrested on the day of the offence, May 8, 2018, and was in custody until August 9, 2021, over three years, the latter part, from March 2020 to August 9, 2021, during the COVID-19 pandemic.

[17] Defence counsel submits an appropriate sentence is between 5 and 6 years and that, having regard to the amount of time Mr. Imam has spent in pre-trial custody, and that he has been on house arrest since his release in August 2021, the sentence should simply be time-served.

Mr. Imam’s circumstances and the pre-sentence report

[18] Mr. Imam is 27 years old. He was born and grew up in Toronto. He completed grade 10 in 2011. His father described him as a quiet child and his sister said he was “very introverted” and “very caring.” Aside from some occasional employment doing “odd jobs” such as waterproofing, he appears to have done little work between leaving high school and the date of the offence in 2018, when he was 23 years old. Mr. Imam has indicated that he would like to go back to school and go back to work. Mr. Imam has been in compliance with strict bail conditions since his release.

[19] Although his parents are now separated, he grew up in a supportive home and has the continued support of his parents and his siblings – a brother and sister. They are his sureties and since his release he has been residing with his brother. Mr. Imam’s family was not aware of any issues with drug use or alcohol abuse. They view the offence as being very out of character and attribute it to alcohol or drug use.

[20] In his interactions with the author of the pre-sentence report, Mr. Imam was reported to be guarded and bitter about the time he had spent in custody. According to the author of the report, Mr. Imam did not show any remorse for his actions. However, it is not clear to what extent the issue of remorse was explored with Mr. Imam.

[21] I have concerns with the unbalanced nature of the pre-sentence report. The author contacted one of the police officers and placed weight on the officer’s opinions which were based on his interaction with Mr. Imam on the night of the assault. Bizarrely, the officer “indicated that neither alcohol nor drugs were issues at the time of the incident.” Yet the officer’s opinions were “of concern to the writer”, including that Mr. Imam “showed no remorse and no care for human life”, that “he had all the intention to kill the victim”, that he “should not be in the community” and that Mr. Imam “will re-offend” if released. As Crown counsel rightly pointed out, these comments of the police officer were improper and should not have been included in the pre-sentence report. In my view they are unhelpful, uninformed, and it is very troubling that such comments were sought and relied upon.

Applicable sentencing principles

[22] Section 718 of the Criminal Code states:

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;

(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.

[23] Sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. It must also take into account aggravating and mitigating circumstances, including those set out in s. 718.2 of the Criminal Code. Section 718.2 also directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Judges must exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh”, especially when ordering consecutive sentences.

[24] In cases of violence, emphasis must be placed on denunciation and deterrence: R. v. Triolo, 2017 ONSC 4726 at para. 19.

Aggravating and mitigating factors

[25] The main aggravating factor in this case is the seriousness of the offence. Mr. Imam committed a brutal and chilling violent act against Mr. Ndlovu, stabbing him repeatedly in the head, neck and torso in front of many people in a shopping mall. Mr. Ndlovu was lucky to survive. Although intoxicated, Mr. Imam appeared to have some awareness of what he was doing, and had done, given his responsiveness to the paramedics and triage nurse at the hospital.

[26] There are several mitigating circumstances. Mr. Imam has no prior criminal record. He was intoxicated at the time of the offences and his actions appear to have been completely out of character. He has the support of his family. He has been in compliance with strict bail conditions since his release one year ago.

[27] While I do not treat it as aggravating, the apparent lack of remorse or recognition by Mr. Imam of the impact his actions had is troubling, although I give it limited weight in light of my concerns about the pre-sentence report. In this regard, of course, the lack of a guilty plea is not relevant. Mr. Imam was facing a charge of attempted murder which he successfully defended.

Analysis and appropriate sentence

[28] The Crown relies on a number of cases in which sentences in the range of 8 - 11 years were imposed. I did not find these cases particularly apt or comparable to this case. Some of them involved convictions for attempted murder in which the accused was found to have planned and deliberated on the action: R. v. Adamson, 2018 ONCA 678; R. v. Postma, 2013 ONSC 7218. Others followed convictions for serious aggravated assaults where there were significant aggravating factors including, among other things, lengthy records of prior convictions: R. v. Agyeman, 2011 CarswellOnt 16142 (SCJ), 2012 ONCA 893; R. v. Dunn, 2002 CarswellOnt 716; R. v. Morgan Bayliss, 2018 ONSC 5815; R. v. Eaton, 2010 ONCA 304.

[29] Of the cases referred to by the Crown, R. v. Roberts, 2009 ONCJ 246, is perhaps the most comparable, involving a conviction for aggravated assault arising from a random stabbing on a bus. But in Roberts the accused also had a lengthy record of prior convictions for violent offences. He received a sentence of seven years.

[30] The defence does not disagree that in serious cases of aggravated assault, sentences of seven or more years are imposed, but they usually involve offenders with lengthy criminal records and other aggravating factors: R. v. Thompson, 2013 ONCA 202; R. v. Pelletier, 2012 ONCA 566; R. v. Caddedu, 2013 ONCA 729; R. v. Clymer, 2017 ONCJ 548.

[31] R. v. Hall, 2017 ONSC 3003, and R. v. Kanagalingam, 2017 ONSC 5489, are closer to this case. In Hall the accused was convicted of aggravated assault for an unprovoked stabbing for which he showed no remorse. The accused was indigenous and other mitigating factors existed, including mental health and alcohol abuse issues, but Hall also had a prior record of criminal activity, including crimes of violence. Having served just over two years in pre-sentence custody, Hall was sentenced to an additional 265 days in prison. I interpret this to be a total sentence in the range of about 4 years.

[32] In Kanagalingam, the accused had been charged with attempted murder but found guilty of aggravated assault, also arising from a stabbing. A middle-aged first offender with alcohol abuse issues, Kanagalingam received a sentence of 33 months which defence counsel in this case submits may have been rather light.

[33] Charney J. helpfully summarized the range of sentences for aggravated assault convictions as follows, at para. 41 of Kanagalingam:

Code J. reviewed many of the sentencing cases for aggravated assault in R. v. Tourville, 2011 ONSC 1677 at paras. 27 - 30, and his guidance in this regard continues to be relied upon: see R. v. Pomanti, 2017 ONCA 48 at para. 35. The midrange cases typically involve first offenders and generally contain some elements suggestive of consent fights but where the accused resorted to excessive force or violence. These cases generally attract sentences between 18 months and two years less a day. Cases at the high end of the range "generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence". These cases generally attract sentences of between four and six years: see para. 30.

[34] That the high end of the range for aggravated assault involving stabbings is around 6 years is supported by other cases cited by the defence, including R. v Ryan, 2017 ONCA 334, R. v. Haly, 2012 ONSC 2302, and R. v. Makhniashvili, 2011 ONCJ 772.

[35] This case is on the high end of the range. Although Mr. Imam has no record, the assault appears to have been unprovoked and was serious. Mr. Imam may have been intoxicated, but he also had a knife and chased Mr. Ndlovu into the mall where he viciously attacked him. There is no evidence of remorse, or apparent appreciation by Mr. Imam of what he did. On the other hand, he has a supportive family who maintain that the assault was out of character. Mr. Imam’s compliance with strict bail conditions is a positive sign, following over three years in pre-trial custody.

[36] In these circumstances, I conclude that an appropriate sentence for the aggravated assault is five years. I would also impose a sentence of six months for the conviction on possession of a concealed weapon, to be served consecutively to the five years for aggravated assault. This results in a total sentence of 5 years and six months.

Credit for pre-trial custody and conclusion

[37] In accordance with the Supreme Court’s decision in R. v. Summers, 2014 SCC 26, Mr. Imam is entitled to credit at a rate of 1.5 days for each day he spent in pre-trial custody. Mr. Imam spent 1190 days in pre-trial custody. Applying Summers results in credit for 1785 days.

[38] The defence argues that Mr. Imam should receive additional, enhanced credit due to the harsh conditions he experienced in custody; in particular, frequent lockdowns and being incarcerated during the COVID-19 pandemic.

[39] Enhanced credit for experiencing particularly harsh conditions flows from the Court of Appeal decision in R. v. Duncan, 2016 ONCA 754. This has been applied for lockdowns in many cases: see, e.g., R. v Charley, 2019 ONSC 6490, R. v. Donison, 2021 ONSC 741, and R. v. Ward-Jackson, 2018 ONSC 178. These cases have applied an additional credit of one day for each day of lockdown during which an inmate is effectively confined to their cell for most, if not all, of each day due to staffing shortages or other circumstances not caused by the inmate.

[40] Mr. Imam was in lockdown for 460 days, and should receive an additional day of credit for each of those days, leading to a total of 2245 days, or just over six years, of pre-trial custody credit. This is, of course, more than what I have determined is an appropriate sentence for Mr. Imam.

[41] The result is that Mr. Imam should be sentenced to time-served. In my view this is appropriate. Mr. Imam spent over three years in pretrial custody, much of it in harsh conditions. No further denunciation of his crimes is needed, nor would sending Mr. Imam back to jail at this time serve any positive purpose.

[42] As the Summers and Duncan credits exceed the appropriate sentence in this case, it is not necessary for me to address whether Mr. Imam should receive additional credit for being incarcerated during the COVID-19 pandemic or for the lengthy period he has spent on house arrest following his release.

[43] I have also considered whether Mr Imam should nevertheless be placed on probation for a period of time, such as 12 – 24 months as suggested by the Crown. The conditions sought would be relatively modest, that he not have contact with the victim or his friend, stay away from the mall, not possess weapons and to attend counselling as directed. I see no point in these conditions. The offence took place over four years ago. Mr. Ndlovu has moved to western Canada. There is no evidence suggesting that Mr. Imam will seek out weapons or re-offend. Nor should he be subject to the direction of a probation officer and be, potentially, set up for failure. A further period of probation is unnecessary and would be unfair to Mr. Imam who has effectively served his sentence and should not be subject to additional restrictions on his liberty.

Paul B. Schabas J.

Released: August 29, 2022

COURT FILE NO.: CR-19-40000581

DATE: 20220829

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BIRHAN IMAM

REASONS FOR SENTENCE

Schabas J.

Released: August 29, 2022

R. v. Birhan Imam, 2022 ONSC 4866

Case Summary

Overview

Background

Positions of the parties

Mr. Imam’s circumstances and the pre-sentence report

Applicable sentencing principles

Aggravating and mitigating factors

Analysis and appropriate sentence

Credit for pre-trial custody and conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 1