COURT FILE NO.: CR-19-07916
DATE: 20221130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
QALID ABDEREZAK
Defendant
Ms. M. Rumble, for the Crown
Mr. C. Haskell, for the Defendant
HEARD: August 3, September 28, and October 12, 2022
REASONS FOR SENTENCE
m.k. fuerst j.:
Introduction
[1] All too often, lawyers work in high conflict and stressful situations. But that work should never put them, or those who work for them, at risk of personal harm.
[2] In this case, a lawyer’s legitimate work did just that.
[3] Lawyers play an important role in the administration of justice, both civil and criminal. Their work facilitates the determination of legal disputes by processes that are rational, principled, and fair, including public trials. The work of lawyers contributes to the maintenance of a just, peaceful, and safe society.
[4] Acts of violence perpetrated against lawyers to intimidate them from representing their clients diligently and with commitment to the client’s cause have no place in our civilized society. Such acts are serious crimes. When proven, they warrant exemplary sentences.
Background
[5] Lisa Carr was a civil litigation lawyer. In 2018 and 2019 she operated her law practice, Carr Law, from an office located in a plaza. Her clients included insurance companies involved in litigation with various tow truck operators along with auto repair shops, that were charging exorbitant impound, storage, and other fees.
[6] As a result of that legal work, Ms. Carr became the target of repeated acts of violence.
[7] In November 2018, an unknown person smashed the front window of Carr Law office during the night, and set fire to a small tree in the lobby. In January 2019, an unknown person broke the window on the front door of the office, threw gas containers inside, and ignited a fire.
[8] In August 2019, days after Carr Law had a court appearance for an insurance company in a civil action against a particular tow truck operator, a vehicle pulled up beside that of Ms. Carr. A male pointed a handgun at her vehicle and pulled the trigger. The gun was loaded, but it jammed and did not discharge. The offence came to light on September 10, 2019, when the police located a cell phone video of the incident. A male, T.S., was charged with attempted murder of Ms. Carr.
[9] The pace of the violence against Ms. Carr quickened. On August 29, 2019, a lawyer who worked for, and physically resembled her, was robbed at gunpoint while sitting in a car outside the law office. Then, on the afternoon of September 6, 2019, multiple gunshots were fired into the front window of Carr Law office.
[10] The gunman on both occasions was Qalid Abderezak. He was arrested the day after he sprayed Ms. Carr’s law office with bullets. His cell phone contained thumbnail photos of both Ms. Carr and the exterior of Carr Law office.
[11] Mr. Abderezak pleaded guilty to robbery using a restricted firearm (count 2); intentional discharge of a restricted firearm at Carr Law office knowing or being reckless whether another person was present in the place (count 4); unauthorized possession of a restricted firearm (count 5); and possession of a restricted weapon while prohibited by a release order (count 6).
[12] Crown and defence counsel agree that these offences warrant a penitentiary sentence, but disagree as to its length.
The Circumstances of the Offences
(a) August 29, 2019
[13] In August 2019, Mr. Abderezak was on bail for robbery and weapons charges. He was bound by a recognizance entered into on April 23, 2019. It included conditions that he live at a particular address and that he not possess any weapons including firearms.
[14] Shortly before noon on August 29, 2019, thumbnail photos of Ms. Carr and the exterior of Carr Law office were created on Mr. Abderezak’s cell phone.
[15] Between 12:32 a.m. and 12:22 p.m. that day, Mr. Abderezak had multiple voice calls with Zakariye Yousuf.
[16] At 12:47 p.m., Alycia Rose, who was an associate at Carr Law, was sitting in the driver’s seat of her car, parked in front of the entrance to the law office. She bore a physical resemblance to Ms. Carr.
[17] Ms. Rose had her driver’s window down.
[18] Mr. Abderezak walked directly to that open window, pulled out a handgun, and pointed it at Ms. Rose. He told her not to look at him. He said, “You are suing the wrong people.” He asked her if she had kids. When she replied that she did not, he said, “Do you want to have kids? Do you want to grow old? Then stop suing my friend.”
[19] The gun made contact with Ms. Rose’s cheek and breast, although Mr. Abderezak denies that he intended it to do so.
[20] Ms. Rose felt intimidated and degraded. She believed that Mr. Abderezak cocked the gun.
[21] Mr. Abderezak demanded her wallet. She handed it over. It contained various identification cards.
[22] Mr. Abderezak said, “This is your only warning.” He then fled the scene in a Volvo. He and his vehicle were captured on security video from the plaza.
[23] From 1:02 p.m. to 10:27 p.m. there were multiple calls between the cell phones of Mr. Abderezak and Mr. Yousuf.
(b) September 6, 2019
[24] Mr. Abderezak and Mr. Yousuf continued to communicate after August 29, 2019. On August 30, 2019, there were multiple calls and one text between them. On August 31, 2019, Mr. Yousuf texted Mr. Abderezak, “I got a big job Coming up For u”.
[25] In early September 2019, Carr Law continued to appear in court in tow truck related litigation.
[26] On September 5 Mr. Yousuf texted Mr. Abderezak, “yo got a next job ur wit it or nah?”
[27] On the morning of September 6, the two men exchanged the following texts:
Mr. Yousuf: “Call tt he has that 4 u n u have to go finish that job quick time”.
Mr. Abderezak: “Snm”.
Mr. Yousuf: “Next big job but we have to go spry up the place cuz we din’t get the right one. Delete this msg after you read it upti plz”.
Mr. Abderezak: “Snm”.
[28] At 1:46 p.m. Mr. Yousuf texted Mr. Abderezak, “Yo U didn’t do it? The man won’t give me the info for the next job until u deal with that quickazzz.”
[29] Phone calls from Mr. Yousuf to Mr. Abderezak followed. At 4:02 p.m. Mr. Abderezak texted an address to Mr. Yousuf. It was the address of Carr Law. Mr. Abderezak then phoned Mr. Yousuf.
[30] At 5:06 p.m. Mr. Abderezak drove the Volvo into the plaza where Carr Law was located. He parked directly in front of the entrance door to the law office. At that time employees were at work in the office, including at the reception desk facing the front door. Ms. Carr was in her office. In addition, there were cars parked along the sidewalk in front of the office, and elsewhere in the parking lot. Numerous people were inside neighbouring businesses. Four women came out of Carr Law and walked to their cars, and two girls got into their mother’s vehicle parked in front of Carr Law.
[31] Mr. Abderezak got out of the Volvo, pointed a loaded handgun that was a restricted firearm toward Carr Law, and fired seven rounds into the front door/window area of the office. He then drove away.
[32] Security video captured the shooting, as well as the activity in the parking lot immediately before and after the shooting.
[33] The police attended. Employees were still inside the office, and were very shaken. There were bullet holes in the front door and windows of the office.
[34] Three bullets found on the floor of the front lobby had penetrated through two panes of glass and bounced off a leather couch in the front reception area. There were two more bullet entry holes in the couch with no exit paths. Two bullet holes at the top of the frame of the front door were traced to marks on two walls in the back of the office. A bullet with drywall still attached was found under a filing cabinet at the back of the office. A front window adjacent to the door was shot twice, with one bullet lodged in a metal barrier and the other penetrating into the office area.
[35] The police found seven bullet casings in the area where Mr. Abderezak had parked.
[36] Mr. Abderezak was arrested on September 7, 2019, after various people including his brother identified him from the security video. Mr. Abderezak had on him the cell phone he used to communicate with Mr. Yousuf, and a key for the Volvo he used in both incidents.
[37] The police learned that Mr. Abderezak was no longer living at the address required by his release order. As of September 3, 2019, he was sleeping in the tractor of a family friend who was a truck driver, and who had agreed to help him. On the evening of September 6, he told that friend he needed money because he had rented an apartment.
Victim Impact Information
[38] I was advised by Crown counsel that the victims did not wish to submit Victim Impact Statements. Crown counsel did tell me, and defence counsel did not dispute, that Ms. Carr closed down her law practice.
The Circumstances of Mr. Abderezak
[39] Mr. Abderezak is 27 years old. He was 24 at the time of the offences. He has no prior criminal record.
[40] He was born in Toronto, to parents who emigrated to Canada from Somalia. The pre-sentence report describes him as having five siblings. In a letter of support, his mother states that he is one of eight children. This contradiction was not explained to me.
[41] Although Mr. Abderezak’s family lived in an at-risk area of Toronto where poverty was an issue in the community, he and his siblings did not lack anything, because his parents both worked. His mother was a cleaner, and his father operated a taxi business. Mr. Abderezak was raised with an understanding of Muslim culture and values.
[42] However, his father left the family when Mr. Abderezak was about 8 years old, and his mother became a single parent. Mr. Abderezak’s father later relocated to Alberta when Mr. Abderezak was 13 years old.
[43] At the age of 17, Mr. Abderezak moved to Alberta to live with his father. Soon after that, his father suffered a serious health issue that resulted in his hospitalization and an extended stay in a rehabilitation center. Mr. Abderezak moved back to Toronto.
[44] By that time, his mother and siblings had relocated to the United Arab Emirates. Mr. Abderezak joined them there in 2013.
[45] In 2015, after his sister returned to Canada, he moved back and lived with her. Because of his truancy from school, she evicted him from her residence. He became homeless, and took to hanging around a “crime infested household” for shelter.
[46] Mr. Abderezak did not complete high school. He gravitated toward the wrong crowd. He became a substance abuser.
[47] Mr. Abderezak’s employment has been sporadic. He was unemployed at the time he committed the offences.
[48] I was provided with a letter from The Eastmall Steering Committee, which is a youth grassroots group based in Toronto Community Housing complexes in the west end of Toronto. It indicates that from January 2017 to April 2019, Mr. Abderezak was a volunteer with that organization, and in particular was a Volunteer Coordinator working alongside the youth lead. He worked closely with vulnerable youth, including in the development of a mentorship program that paired Somali youth with Somali professionals, and in sharing information about how to access support systems. None of this information is mentioned in the pre-sentence report.
[49] Mr. Abderezak blames his ego and his desire to live his life his way for his current predicament. The pre-sentence reporter suggests that his choices of peers and sense of peer acceptance standing, and/or lack of patriarchal acceptance may have been factors.
[50] The pre-sentence reporter observed that Mr. Abderezak “appears to lack the [sic] total insight of the seriousness of the offences”.
[51] Mr. Abderezak has been held in custody since his arrest, for a total of three years, two months and 24 days. Almost all of that custody has been at the Toronto South Detention Centre (“TSDC”). Conditions there have been harsher than usual. Mr. Abderezak was locked down for all or part of a day due to staffing shortages on over 530 occasions. During lockdowns at TSDC, inmates are permitted to be out of their cells for only 30 minutes. There also were COVID-related restrictions due to the pandemic. While in custody, Mr. Abderezak suffered a dislocated shoulder. He has had ongoing problems as a result, leading to him being housed in the infirmary or in segregation for the past few months. All of this has caused him to feel depressed and anxious.
[52] While in custody Mr. Abderezak completed several short educational sessions, including in anger management and substance use.
[53] Mr. Abderezak would like to complete his high school diploma. On his release from jail, he would like to work in a construction trade. Family members and friends provided letters expressing their ongoing support of him.
[54] In his remarks at the conclusion of the sentencing hearing, Mr. Abderezak apologized to the victims. He said that he accepts responsibility for what he did and that there is no justification for it. He said that he had a strong religious and cultural background. Mr. Abderezak made additional comments about his situation at the time he committed the offences, which are also referred to rather obliquely in the pre-sentence report. As they may be indicative of an aggravating circumstance, and were not relied on by defence counsel, I have ignored those particular comments.
The Positions of the Parties
[55] On behalf of the Crown, Ms. Rumble submits that although Mr. Abderezak is a first offender, the nature of the offences is such that the objectives of protection of the public, denunciation, and general and specific deterrence must take precedence over rehabilitation. Both incidents were crimes of intimidation against victims who were targeted because they were doing their jobs in the civil justice system. Ms. Rumble seeks a total sentence of 16 years in jail, less pre-trial custody credited at one and a half to one, comprised of six years on count 2, nine years consecutive on count 4, five years concurrent on count 5, and one year consecutive on count 6. She states that this sentence takes into account the mitigating factors including the guilty pleas, Mr. Abderezak’s status as a first offender, and the harsh conditions of his pre-sentence custody. It also takes into account the totality principle. Ms. Rumble seeks DNA orders, s. 109 prohibition orders for life, forfeiture of all items seized, and a s. 743.21 order.
[56] Ms. Rumble emphasizes that the offences were planned and premeditated. They involved the brazen daylight use of a handgun in a busy public place. Mr. Abderezak was on bail and bound by a specific condition that he not possess a restricted weapon. Yet he twice transported a handgun in a vehicle, and then twice used the handgun he transported. He used a handgun to threaten Ms. Rose when she was alone and vulnerable in her parked car. He used a handgun a second time, to shoot up the front of Ms. Carr’s law office, which was clearly labelled as a law office, during business hours, firing seven shots into the office when she and others were inside and various other individuals were in proximity outside. Someone could have been injured or killed. The terrorizing impact on the victims of the incidents can be inferred. Ms. Rumble also points out the prevalence of gun crimes in York Region, as indicated in the statistical information filed.
[57] On behalf of Mr. Abderezak, Mr. Haskell seeks a total sentence of six and a half years in jail, arguing that concurrent sentences should be imposed for the two incidents, but submits in the alternative that if there must be consecutive sentences, the total sentence should be ten years. Pre-sentence custody should then be deducted on the basis of one and a half to one, and there should be an additional deduction of one day for each day of lockdown. Mr. Haskell makes no submissions about the ancillary orders sought by the Crown.
[58] Mr. Haskell agrees that these offences were an attack on the administration of justice. But, he submits that this is not a case for an exemplary sentence. He emphasizes the mitigating factors. Mr. Abderezak pleaded guilty, albeit after a preliminary hearing. His pleas saved some six weeks of court time, and spared the victims from having to testify at a trial. He has no criminal record. Although he was on bail when he committed these offences, the charges for which he was on release were withdrawn. He is relatively youthful, with little life experience. He was raised in disadvantaged circumstances in an under-privileged community. He has strong familial support, which will be an important source of encouragement to him to participate in rehabilitative programming in the penitentiary. He took the courses that were available to him at the detention centre. The over-incarceration of young Black men is recognized as a problem. The principle of restraint means that Mr. Abderezak should not be subject to a long sentence that could curtail his rehabilitation.
The Principles of Sentencing
[59] The Criminal Code sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.
[60] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.
[61] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the chief organizing principle in determining a fit sentence: see, R. v. Parranto, 2021 SCC 46, at para. 10.
[62] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that where consecutive sentences are imposed the combined sentence not be unduly long or harsh, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders.
[63] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge: see, R. v. Lacasse, 2015 SCC 64, at paras. 58 and 143.
Analysis
(a) Sentencing Parameters
[64] The most serious of the offences of which Mr. Abderezak was convicted carry a mandatory minimum sentence.
[65] The offence of robbery where a restricted firearm is used carries a mandatory minimum sentence of five years in jail for a first offence, and a maximum sentence of imprisonment for life.
[66] The offence of intentional discharge of a restricted firearm knowing or being reckless whether a person was in the place (“reckless discharge”) carries a mandatory minimum punishment of five years in jail for a first offence, and a maximum punishment of 14 years in jail. In R. v. Dhaliwal, 2019 ONCA 398, at para. 2, this five year minimum sentence was described as “a serious minimum”. It indicates Parliament’s view of the gravity of the offence.
[67] Crown and defence counsel relied on a number of cases in support of their respective positions. The indices to their casebooks were made Exhibits “A” and “B” respectively to the sentencing proceedings. I have reviewed all of those decisions, although I will refer to only some of them.
[68] Both Crown and defence counsel referenced R. v. Bellissimo, 2009 ONCA 49. There the accused fired several shots in a restaurant at the primary victim, significantly injuring him, and causing minor injury to a second victim while narrowly missing killing a third victim. The Court of Appeal increased the global sentence for the unspecified, gun related offences from five years to ten years in jail. The Court said, at para. 3, “We agree that the range of sentence for these kinds of serious gun related offences is between seven and eleven years.”
[69] In R. v. Jama, 2021 ONSC 4871, at para. 44, Schreck J. commented that the Bellissimo range has most often been applied by sentencing judges in cases of intentional shootings where someone was injured or the accused attempted to injure someone. He suggested that the range of sentence for discharging a restricted or prohibited firearm where others are present but not physically harmed is five to seven years in jail.
[70] Jama involved two accused who were convicted after a jury trial of reckless discharge of a firearm. They drove to the parking lot of an apartment complex, where Jama as the driver stopped behind a parked car occupied by two men. The co-accused Farrah fired a handgun three times at the car, then Jama drove away as did the car. There was no evidence that anyone was injured or that the car was damaged. Jama, who was in his mid-20s, was on bail at the time. Farah, who was 19 years old, had no criminal record. Schreck J. sentenced both offenders to five years in jail for the offence of reckless discharge.
[71] In Dhaliwal, the accused was convicted after a trial of reckless discharge of a firearm and related offences. There was animosity between him and the complainant as a result of a previous incident. He went to the plaza where the complainant had an apartment, and confronted him. The complainant was able to get into the entranceway to the building stairwell. The accused tried unsuccessfully to open the entrance door and then fired a shot through a gap. It hit the ceiling. No-one was injured. The accused was in his early twenties, had a lengthy criminal record, and was bound by three probation orders at the time. The Court of Appeal reduced the sentence from seven years to six years in jail.
[72] Sentencing ranges are primarily guidelines, and not hard and fast rules: Lacasse, at para. 60. While I acknowledge the range identified by Schreck J. as generally applicable for the offence of reckless discharge, seven years is not an absolute ceiling. Sufficiently aggravating factors may move the top end of the range higher.
(b) The Objectives of Sentencing
[73] The objectives of denunciation, general deterrence, and protection of the public are paramount in sentencing for firearms offences, particularly those involving the unlawful possession of loaded handguns in public places: see, R. v. Morris, 2021 ONCA 680, at para. 71; R. v. Marshall, 2015 ONCA 692, at para. 49.
[74] Specific deterrence and rehabilitation must also be considered where a youthful offender is being sentenced to a first penitentiary sentence: see, R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at paras. 36-37.
[75] There will be cases where even though the offender is relatively young and has no criminal record, a substantial jail term is warranted. See, for example, R. v. Mansingh, 2017 ONCA 68, at para. 24; Borde, at para. 39.
(c) Aggravating and Mitigating Factors
[76] This case features a number of aggravating factors, some that are common to the offences, and some that apply to one incident or the other.
[77] I turn first to those that are common to the offences. Chief among them is that these were targeted crimes of violence, committed in order to intimidate Lisa Carr to abandon her work as a lawyer on behalf of clients who were exercising their legal rights to sue others civilly. She, Alycia Rose, and those who worked at Carr Law became victims of violence because of, and solely because of, their work in the civil justice system.
[78] Further, they were exposed to potential physical harm while going about their daily business at their workplace, and in the case of Ms. Rose, while in her private vehicle parked just outside the law office.
[79] There are additional aggravating factors that are common to the offences. They include the following:
• While I accept that Mr. Abderezak was not the mastermind behind the incidents, on both occasions his actions were planned and deliberate. This was not impulsive, spur-of-the-moment conduct by him.
• On both occasions he carried a handgun that was a restricted firearm around in his car, and brought it into the public parking lot of a busy plaza during commercial business hours.
• He was bound at the time by a release order that prohibited him from possessing firearms.
• The firearm or firearms he used were not recovered by the police. There is an ongoing risk to public safety, in that it or they potentially became available to others to use.
• The statistics filed by Crown counsel show the prevalence of illegal firearms in York Region.
• Even in the absence of Victim Impact Statements, it is a reasonable inference and one that I draw that the events of August 29 and September 6, 2019, were terrifying for Ms. Carr, Ms. Rose, and Ms. Carr’s employees. Although Mr. Abderezak cannot be held responsible for the earlier arsons and the attempted shooting of Ms. Carr, I have no doubt that his actions contributed to her decision to shut down her law office, effectively annihilating all that she had achieved through the hard work and considerable expense entailed to become a lawyer and build a law practice.
[80] There are aggravating factors that are specific to the separate occurrences. With respect to the robbery of Ms. Rose, they include:
• She was alone in her vehicle and so particularly vulnerable when Mr. Abderezak suddenly pointed a handgun through her open window.
• Mr. Abderezak used the firearm to intimidate and threaten Ms. Rose.
• Although I cannot find beyond a reasonable doubt that it was intentional, Mr. Abderezak handled the firearm in such a way that it made contact with Ms. Rose’s cheek and her breast. This enhanced for her the intimidating and degrading impact of his conduct.
• Mr. Abderezak threatened her with death, suggesting that she would not “grow old” if she continued to sue his “friend”.
[81] There was no evidence that the handgun was loaded. This is the absence of an aggravating factor. It is not a mitigating factor.
[82] With respect to the shooting of the law office, the specific aggravating factors include:
• Mr. Abderezak fired not just one, but multiple shots into the law office.
• He fired off the handgun around the close of business hours, a time when it was likely that people would still be in the law office, or coming and going from it and adjacent businesses, or moving about in the busy plaza. The video footage illustrates that there were in fact individuals in the immediate area shortly before he discharged the gun. Ms. Carr and employees were still in the law office. The fired bullets penetrated into the reception area and into the back of the law office.
[83] I must also take into account the mitigating factors. They include:
• Mr. Abderezak pleaded guilty. This was not an early guilty plea. Nonetheless, it is a sign of his remorse and willingness to take responsibility for his wrongdoing. He expressed remorse in his remarks at the conclusion of the sentencing hearing. Although he has a co-accused, that person also pleaded guilty, and so court time has been saved and witnesses have been spared from testifying at a trial.
• Mr. Abderezak is a first offender.
• He was not a teenager when he committed the offences, but at the age of 24 he was a younger adult.
• He is a Black man, who comes from a somewhat disadvantaged background. I note, however, that he did have the benefit of some positive connections in the community, as indicated in the letter of Mr. Ainanshe of The Eastmall Steering Committee.
• Mr. Abderezak has shown rehabilitative potential. He completed several short courses while in pre-trial custody. He wants to complete his high school education. He has familial support, which will assist in his reintegration into the community on his release from jail.
• While in pre-trial custody, Mr. Abderezak experienced harsher than usual conditions, including frequent lockdowns due to staffing shortages, and restrictions because of the COVID-19 pandemic. This has made his detention more stressful.
Decision
[84] On two occasions, Mr. Abderezak armed himself with a firearm, which he ultimately did not hesitate to discharge multiple times in a public place. That no-one was injured or killed was a matter of pure luck.
[85] For years, judges have spoken out about the presence of illegal firearms in the community. In 2010, the Court of Appeal for Ontario in R. v. Brown, 2010 ONCA 745, at para. 14, referred to handguns as “an all too prevalent menace in the Greater Toronto Area.” Statistics compiled by York Regional Police and filed in these proceedings confirm that the proliferation of handguns, and the associated threat to public safety, continues to plague York Region. This case is an example of the serious risk posed to law-abiding members of the public by illegal firearms in the hands of those who have no good reason to possess them.
[86] The gravity of Mr. Abderezak’s offences is enhanced because of their targeted nature. He knowingly and deliberately victimized a member of the legal profession and her employees. He did so solely because of the lawyer’s legitimate pursuit of a legal remedy on behalf of a client opposed in interest to that of his “friend”. Intimidation by violence of a member of the legal profession because of the work they do, and through them of clients seeking to assert their legal rights, is abhorrent. It is antithetical to the values on which our society is built. Such criminal conduct requires an exemplary sentence.
[87] However, I appreciate that I am sentencing Mr. Abderezak as a first offender, who, while not a teenager, is still in his twenties. This requires some measure of restraint.
[88] I also acknowledge the striking number of times he has been locked down for part or all of a day because of staffing shortages at TSDC. Regrettably, “staffing shortages” has become the standard justification for lockdowns at detention centres in Toronto and the Greater Toronto Area. It is not an acceptable explanation as we emerge from the pandemic. A detention centre is not a retail store or a manufacturing plant or a community centre. Inmates held within its walls have no choice but to be there. Their liberty interests are necessarily impacted because they are detained, but to deny them all but the most minimal time outside their cells, sometimes for days at a time, on the basis of “staffing shortages” is inhumane.
[89] In R. v. Marshall, 2021 ONCA 344, the Court said at para. 52, “Particularly punitive pre-trial 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”. The Court made it clear that “credit” for punitive conditions of pre-trial incarceration, such as lockdowns, is not a deduction from the otherwise appropriate sentence. I therefore decline defence counsel’s invitation to grant a specific deduction from the sentence I will impose, as a credit for the difficult conditions of Mr. Abderezak’s detention. As I indicated above, I have taken the pre-trial detention conditions into account as a mitigating factor that I weigh along with all the other mitigating and aggravating factors. I note that, as the Court pointed out in Marshall, punitive pre-trial custody conditions cannot justify the imposition of a sentence that is inappropriate.
[90] I am satisfied that the global sentence of 16 years in jail proposed by Crown counsel would be excessive for a first offender. It would not give effect to the sentencing objective of rehabilitation, or to the comments of the Court of Appeal for Ontario about the need for restraint in sentencing more youthful offenders to first penitentiary sentences. Equally, I am satisfied that a global sentence as low as six and a half years in jail proposed by defence counsel fails to recognize the gravity of the offences and Mr. Abderezak’s moral blameworthiness.
[91] Balancing the aggravating and mitigating factors, and having regard to the principles and objectives of sentencing, I conclude that the appropriate sentence for reckless discharge of a firearm is seven years in jail. The appropriate sentence for robbery is five years in jail. Credit will be given for pre-trial custody calculated at one and a half to one.
[92] These sentences should be served consecutively. The offences arise from separate incidents, days apart. They are different delicts. The offences are each very serious, and each deserves a significant penitentiary term. I have taken into account the totality principle in my final determination of the appropriate sentence for each of these two offences.
[93] The sentence for unauthorized possession of a restricted firearm is three years in jail, to run concurrently in light of the totality principle.
[94] The sentence for breach of the bail condition prohibiting Mr. Abderezak from possessing firearms is one year in jail, to run concurrently in light of the totality principle and because I took it into account as an aggravating factor with respect to the other offences.
[95] The global sentence is therefore one of 12 years in jail, less pre-trial custody credited at one and a half to one.
Conclusion
[96] Mr. Abderezak, please stand.
[97] I sentence you:
• On count 4, reckless discharge of a firearm, to seven years in jail, less pre-trial custody calculated on the basis of one and a half to one as four years, ten months and six days in jail;
• On count 2, robbery using a restricted firearm, to five years in jail, consecutive;
• On count 5, unauthorized possession of a restricted firearm, to three years in jail, concurrent to the sentence on count 4;
• On count 6, possession of a restricted weapon while prohibited by a release order, to one year in jail, concurrent to the sentence on count 4.
[98] The total sentence is 12 years in jail, less four years, ten months and six days for pre-trial custody. That leaves a sentence to be served of seven years, one month and 24 days in the penitentiary.
[99] On each count there is a DNA order, a s. 109(2)(a) order for 10 years, and a s. 109(2)(b) order for life. There is also a s. 743.21 non-communication order in respect of Lisa Carr, Alycia Rose, Zakariye Yousuf, and Salloum Jassem.
[100] Forfeiture is ordered as requested by Crown counsel.
Justice M.K. Fuerst
Released: November 30, 2022
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
QALID ABDEREZAK
Defendant
REASONS FOR SENTENCE
Justice M.K. Fuerst
Released: November 30, 2022