COURT FILE NO.: CR-22-10000335-0000
DATE: 20221129
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
MOHAMED DAOUD
Anna Tenhouse and Andrew Gibbons, for the Crown
J. Randall Barrs, for Mr. Daoud
HEARD: October 7, 2022
M. Forestell J.
REASONS FOR SENTENCE
Background and Positions
[1] Mohamed Daoud, along with Ayuub Jama and Michael Carty, was charged with first degree murder in relation to the shooting death of Andre Rodriguez on September 10, 2020. On October 7, 2022, Mr. Daoud pleaded guilty before me to the offence of manslaughter.
[2] The Crown sought a sentence of nine years’ imprisonment before statutory credit for presentence custody at 1.5 to 1. The position of the Crown was that a nine-year sentence would take into account the collateral consequences of harsh conditions of presentence custody and the anticipated harsh conditions of the sentence to be served. Counsel for Mr. Daoud submitted that a sentence of five years would have been appropriate before credit for harsh conditions and before statutory credit for presentence custody. Counsel for Mr. Daoud therefore sought a sentence of less than five years.
[3] After hearing the evidence and submissions on sentencing, I reserved my decision on sentencing until today.
The Circumstances of the Offence
[4] The circumstances of the offence are set out in Exhibit 1 on sentencing which consists of a Statutory Declaration by Mr. Daoud and a separate document with additional agreed facts.
[5] On September 10, 2020, Mr. Daoud travelled from Grimsby, Ontario to Toronto with Abdelmuneim Abdalla in a rented Ford Explorer. When they got to Toronto, they met Ayuub Jama at a gas station. Mr. Jama was driving a rented Nissan Altima. The three men then drove to a gym in the two cars. Michael Carty exited the gym carrying a green backpack and he placed it in the Ford Explorer. The four men planned to meet with the victim, Mr. Rodriguez, under the pretext of buying cocaine. They planned on robbing Mr. Rodriguez.
[6] Mr. Daoud was aware that the plan involved using a loaded firearm. Mr. Abdalla told Mr. Daoud that they would brandish the gun and that Mr. Abdalla expected that Mr. Rodriguez would give up the drugs. Mr. Daoud knew that the plan involved the four men attending to meet Mr. Rodriguez in a Walmart parking lot in two separate vehicles. The plan was for two of the men to meet with Mr. Rodriguez in the Ford Explorer and for the other two to act as lookouts. Mr. Daoud travelled to the Walmart parking lot in the Nissan Altima with Mr. Jama driving. Mr. Carty and Mr. Abdalla drove to the parking lot in the Ford Explorer.
[7] When they came to the parking lot, Mr. Daoud saw the Ford Explorer parked with Mr. Abdalla in the driver’s seat and Mr. Carty in the front passenger seat. After they parked the Nissan, Mr. Jama left the Nissan and approached and entered the Ford Explorer. Mr. Daoud gave Mr. Jama a hooded sweatshirt before he left the Nissan Altima. Mr. Daoud moved into the driver’s seat of the Nissan. Mr. Carty left the Ford Explorer and entered the front passenger seat of the Nissan.
[8] Mr. Daoud saw Mr. Rodriguez enter the rear passenger seat of the Ford Explorer. He knew that the plan was for Mr. Rodriguez to be robbed while in the rear seat. Mr. Daoud saw the Ford Explorer leave its parking spot and move to a different spot. Mr. Daoud also left his parking spot and parked where he could see the Explorer. While acting as a lookout, he heard a loud bang and saw the Ford Explorer leave its parking spot at a high rate of speed. Mr. Daoud later learned that Mr. Rodriguez had been shot and killed while in the rear passenger seat of the Ford Explorer.
[9] Mr. Rodriguez was shot once in the head while in the Ford Explorer. He was pushed out of the car as it left the parking spot and fled the scene.
[10] Mr. Daoud drove back to the gym parking lot and met with the other men. They divided the cocaine that had been taken from Mr. Rodriguez. Mr. Daoud was given two ounces of the kilogram of cocaine taken from Mr. Rodriguez.
[11] Mr. Daoud left the gym on foot and made his way home. He was arrested on September 16, 2020 and has been in custody since that time.
[12] Mr. Carty and Mr. Jama were also arrested and charged with first degree murder. Mr. Abdalla has not been apprehended.
Victim Impact
[13] Andre Rodriguez was only 26 years old when he was shot and killed in the Walmart parking lot on September 10, 2020. He left behind his parents, his sister and his girlfriend of 12 years as well as extended family and friends. His sister, Tamara Rodriguez, described the profound impact of this crime on her and on her parents. They have suffered mentally, emotionally and physically. Both of Mr. Rodriguez’s parents have suffered from depression and have been unable to work. Tamara Rodriguez also continues to suffer from the loss of her brother. She feels the pain of her own loss and the pain of watching her parents suffer.
Circumstances of the Offender
[14] Mr. Daoud is 36 years old. He has a criminal record which begins in 2002 when he was 15 years old. He was found guilty of uttering threats and obstructing a peace officer and received probation for 12 months on each charge. The next year he was found guilty of failing to comply with a recognizance, robbery, obstruct peace officer and breaking and entering. He received a disposition of open custody. Three years later, his adult record began with convictions for theft under, theft and failing to comply. Mr. Daoud then stayed out of trouble for nine years until 2015, when he was convicted of sexual assault and sentenced to two and a half years’ imprisonment. He was charged with uttering threats and mischief in June of 2020 and was released on an undertaking.
[15] Mr. Daoud was born in Sudan and came to Canada as a refugee with his parents when he was three years old. They first lived in Toronto in public housing and then moved to St. Catharines when Mr. Daoud was eight years old. Mr. Daoud attended four different schools before high school. He attended seven different high schools in two years before dropping out after Grade 10.
[16] Mr. Daoud’s father took the family back to Sudan in 2006. In 2008 Mr. Daoud lived in Malaysia and attended a graphic arts programme. He returned to St. Catharines in 2013.
[17] Mr. Daoud was diagnosed in 2019 with Bipolar mood disorder and with Attention Deficit Hyperactivity Disorder (“ADHD”). Before being treated for these disorders, Mr. Daoud was unable to read more than a few pages. He was also self-medicating with illegal substances.
[18] Mr. Daoud’s father was frequently absent from Mr. Daoud’s life. He worked away from the family for Corrections Canada in Manitoba and then in Muskoka when Mr. Daoud was in his teens. Mr. Daoud’s mother worked as a cleaner. Mr. Daoud’s father was a police pilot in Sudan and his mother was a lawyer in Sudan. Mr. Daoud’s siblings have all been very successful. Three are doctors, two are pharmacists and one is a graduate student.
[19] Mr. Daoud’s father has now retired. He remains supportive of Mr. Daoud. Mr. Daoud’s older brother is also supportive. Both attended court for the sentencing. Mr. Daoud’s mother and his other siblings filed letters of support on sentencing.
[20] Since his incarceration, Mr. Daoud has received consistent treatment for his bipolar disorder and for his ADHD. He has participated in the limited programming available in custody. He has become religiously observant, attending services weekly and meeting with the Imam. He has also received religious reading material from the Imam. Mr. Daoud participated in the “Look Both Ways Creative Writing” program run by the Forgiveness Project and obtained a credit through the Ontario College of Art and Design. He also completed teambuilding activities and workshops on conflict management run by the Forgiveness Project. A letter from the director of the project indicates that Mr. Daoud exhibited leadership and problem-solving skills during his participation. The Forgiveness Project is committed to continuing to work with Mr. Daoud while he serves his sentence and upon his release.
Conditions of Detention
[21] Mr. Daoud has been in custody during the COVID-19 pandemic. He was detained in the Toronto South Detention Center (“TSDC”) and Maplehurst Correctional Complex. Lockdown records have been filed as part of the record on sentencing. Those records disclose that Mr. Daoud was subject to lockdowns on 379 days from his arrest until September 1, 2022.
[22] Mr. Daoud has been in custody for 26 months and 14 days. Although there are no lockdown records for the last three months, it is reasonable to assume that the lockdowns have continued at the same rate and that Mr. Daoud has been subject to lockdowns for about half of his total time in custody. Staff shortages plagued the Toronto Region Detention Centers pre-pandemic. The conditions of detention have worsened over these past two and a half years through the COVID-19 pandemic. Family visits were curtailed. Programming was cancelled. Recreation was limited. Health services were strained.
[23] Mr. Daoud was assaulted while in custody. The health records filed on sentencing show that the assault was sufficiently serious to require hospitalization. Mr. Daoud suffered a head injury in the attack.
[24] Mr. Daoud had expressed an early intention to plead guilty. He consented to committal for trial and entered a plea in this Court at an early stage. As I have already indicated, the agreed facts in this case are set out in a Statutory Declaration. Mr. Daoud’s early plea and Statutory Declaration have made him vulnerable to further assaults in custody. He can expect to serve his sentence in some degree of isolation or to be open to retaliatory assaults in custody.
Law and Analysis
[25] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code,[^1] is to “contribute …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; (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; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.
[26] Denunciation and deterrence are generally the predominant sentencing objectives in sentencing for manslaughter. However, rehabilitation remains a relevant consideration.
[27] In arriving at an appropriate sentence, I must consider aggravating and mitigating circumstances with respect to the offender and with respect to the offence.
[28] Aggravating circumstances are:
• The robbery was planned;
• A firearm was used;
• The shooting occurred in a busy public area;
• The robbery was related to the drug trade;
• The firearm was never recovered;
• All participants, including Mr. Daoud, fled and took steps to avoid detection;
• The offence had a profound impact on the family of the victim;
• Mr. Daoud has a criminal record that includes convictions for violence; and,
• Mr. Daoud was subject to an undertaking for outstanding criminal charges of uttering threats and mischief at the time of the offence.
[29] Mitigating factors are:
• That Mr. Daoud entered a guilty plea at an early opportunity. He has accepted responsibility and is genuinely remorseful for his role in this offence;
• He has support in the community from his family and from the Forgiveness Project;
• He has mental health issues that went undiagnosed for many years and that have only recently been appropriately treated;
• He grew up in poverty and without access to appropriate resources for his mental health needs;
• He has taken steps towards rehabilitation by seeking religious guidance and participating in available programming while in custody.
[30] Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[31] Mr. Daoud is guilty of manslaughter because he was a participant in a planned armed robbery in which one of his accomplices shot and killed Mr. Rodriguez. A reasonable person would have foreseen the real risk that the accomplice would use the gun against the victim in the course of the robbery. It is not asserted that Mr. Daoud subjectively foresaw that risk.
[32] The offence in this case is very serious. A life was taken in the course of a planned and violent offence. However, Mr. Daoud’s role in the offence places his degree of responsibility at a lower level.
[33] The Court of Appeal has held that objective foresight, while sufficient to support the mens rea for manslaughter, is a lower level of culpability than a finding that the offender actually foresaw the risk.[^2]
[34] I must also consider the principle of parity. The sentence that I impose must be similar to sentences imposed on offenders like Mr. Daoud who committed similar offences.
[35] In R. v. Kwakye,[^3] a youthful first offender who participated in a home invasion robbery knowing that his accomplice had a gun was sentenced by the trial judge to 10 years. The Court of Appeal reduced the sentence to seven years because of the lower level of culpability and because of the rehabilitative potential of the offender.
[36] In R. v. Smith,[^4] the offender participated in a planned armed crime involving a home invasion. He was not a youthful first offender. He did not plead guilty but expressed remorse at sentencing. Like Mr. Daoud, he had a supportive family. He had spent about three years in presentence custody, much of it under harsh conditions. Having considered the aggravating and mitigating factors and the collateral consequences of the harsh conditions, Schreck J. imposed a sentence of 9.5 years before statutory credit for presentence custody.
[37] In R. v. Ingram-Piruzevski,[^5] Fuerst J. imposed a sentence of seven years’ imprisonment on a youthful first offender who participated in a drug deal while armed. His accomplice stabbed the victim to death. The offender in that case was remorseful and entered a guilty plea at an early opportunity. The case pre-dated the decision of the Court of Appeal for Ontario in R. v. Marshall[^6] and harsh conditions of pre-sentence custody were not considered in mitigation but resulted in a three-month credit in recognition of 68 lockdown days. The effective sentence was therefore six years and nine months.
[38] The mitigating circumstances in this case of Mr. Daoud’s early plea, sincere remorse and mental health challenges take this case to the lower end of the range of sentence for manslaughter involving a firearm. The significant collateral consequences in this case, in my view, must reduce the sentence further.
[39] The Supreme Court of Canada explained the approach to collateral consequences in R. v. Suter:[^7]
Though collateral consequences are not necessarily ‘aggravating’ or "mitigating’ factors under s. 718.2(a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.
[40] The Court in Suter went on to hold that collateral consequences cannot reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence and moral blameworthiness of the offender.
[41] In Suter, the offender had been seriously assaulted in the community by ‘vigilantes’ having been charged with impaired driving causing death as a result of driving onto an outdoor patio and striking and killing a small child. The Supreme Court held that the sentencing judge properly held that the vigilante justice experienced by the offender could be considered to a limited extent when crafting an appropriate sentence.[^8]
[42] In this case, Mr. Daoud has similarly been the victim of violence as a result not only of the charges but as a result of his guilty plea. He can expect that he will be vulnerable to assaults while in custody serving his sentence. This consequence of sentencing means that the sentence will have a more significant impact on Mr. Daoud than it would have on another offender. His time in custody has been and will continue to be more onerous.
[43] In additon to the assault and the risk of assault, as I have already outlined, Mr. Daoud has been in custody under extremely harsh conditions. This has included spending about half of his presentence custody under lockdown. The Court of Appeal in Marshall held that particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account in arriving at an appropriate sentence.[^9]
[44] Having weighed the relevant factors and principles of sentencing and taking into account harsh conditions and the collateral consequences experienced by Mr. Daoud, I am satisfied that the appropriate sentence is one of six and a half years before statutory credit for the time spent in pre-sentence custody.
Conclusion
[45] For these reasons, I sentence Mr. Daoud to six and half years’ imprisonment before statutory credit. He has spent 805 actual days in custody which are credited at 1.5:1 as 1,208 days. The remaining sentence to be served in 1,166 days or 38 months and 9 days.
[46] There will be a s. 109 order prohibiting Mr. Daoud from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[47] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Daoud provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
[48] There will also be an order under s.743.21 prohibiting Mr. Daoud from communicating directly or indirectly with Michael Carty, Ayuub Jama, Abdelmuneim Abdalla and any member of the family of Andre Rodriguez.
M. Forestell J.
Released: November 29, 2022
COURT FILE NO.: CR-22-10000335-0000
DATE: 20221129
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
MOHAMED DAOUD
REASONS FOR SENTENCE
M. Forestell J.
Released: November 29, 2022
[^1]: R.S.C., 1985, c. C-46 [^2]: R. v. Kwakye, 2015 ONCA 108, at para. 5 [^3]: R. v. Kwakye, 2015 ONCA 108 [^4]: R. v. Smith, 2022 ONSC 3800 [^5]: 2019 ONSC 4470 [^6]: 2021 ONCA 344 [^7]: 2018 SCC 34 at para 48 [^8]: See also R. v. McFarlane, 2012 ONCA 82 [^9]: Marshall, at para. 52