Court File and Parties
COURT FILE NO.: CR-21-50000019-0000 DATE: 20230331 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – SALMAN AHMED
Counsel: Paul Zambonini & Michael Townsend, for the Crown Ariel Herscovitch & Ashley Audet, for the Defence
Before: K. Byrne J.
Reasons for Sentence
[1] On April 20, 2022, Samir Adem and Salman Ahmed were both convicted of the second-degree murder of Jonathan Gayle. Samir Adem died in custody, subsequent to conviction, but before sentencing. Mr. Ahmed is to be sentenced today.
[2] A conviction for second degree murder carries with it a mandatory life sentence. The issue before me is one of parole ineligibility. As a general rule the period of parole ineligibility for second degree murder is 10 years (R. v. Shropshire, [1995] 2 S.C.R. 277, at para. 27). The trial judge may, after taking into account the factors set out in s. 745.4 of the Criminal Code, increase the number of years of parole ineligibility up to 25 years. The factors for consideration are as follows:
- The character of the offender;
- The nature of the offence and the circumstances surrounding the commission of the offence; and
- The jury’s recommendation.
[3] I am mindful as I navigate my way through this process that regardless of the number of years of parole ineligibly that I impose, Mr. Ahmed is still subject to a sentence of life imprisonment for the murder of Jonathan Gayle. Ultimately, it will be up to the parole authorities to decide whether Mr. Ahmed’s past and future behavior in custody warrants release.
[4] Crown counsel takes the position that 25 years of parole ineligibility is warranted and justified. The defence takes the position that parole ineligibility of 12 years is in line with the current jurisprudence for similar offences. Both parties have submitted numerous cases in support of their respective positions, which I have thoroughly reviewed. Although I am grateful for the guidance, the truth is no two cases are identical. Sentencing is a highly individual, fact-driven process, and at some point, the compare and contrast approach becomes counterproductive.
Jury Recommendations
[5] Turning first to the issue of the jury recommendations with respect to parole ineligibility. In this case, four members of the jury recommended ten years of parole ineligibility for the offender, Salman Ahmed. The remaining eight jurors made no recommendation at all. In determining how much weight to attach to this recommendation, I am mindful that aside from being told that the offender will be sentenced to life in prison and that parole ineligibility can be set anywhere between 10 and 25 years, jurors are given virtually no other information on how to formulate an appropriate sentence. They are not provided with any caselaw or victim impact statements. They were not given any background information about the offender, nor did they have the benefit of counsels’ submissions on sentence. In this case, the recommendation was made after days of sequestered deliberation and being told that the job of sentencing is strictly that of trial judge. They make the recommendation in a vacuum. I am not prepared to speculate as to why the majority chose not to make a recommendation at all. The bottom line is that under the circumstances attached to this case, I am not prepared to place much weight on the recommendation from the jury.
The Offence
[6] Turning now to the facts in this case. Although I do not have the benefit of knowing what findings of fact were made by the jury, many things in this case are not in dispute.
[7] On December 12, 2018, at approximately 6:00 p.m., Jonathan Gayle was driving on Islington Ave after a visit with his pastor when his car stopped on the roadway then slowly mounted the curb and rolled into a tree where it came to a stop. Mr. Gayle had been shot to death. The postmortem examination revealed three bullets to his torso, one of which went through his heart.
[8] Video surveillance captured two men exiting the vehicle and running away. There is no dispute that those men were Samir Adem and Salman Ahmed. The men can be seen running away from the vehicle immediately after it hit the tree, then running back to the vehicle, entering it and then running away again. One man on the video is noticeably taller than the other. The taller man has been identified as Salman Ahmed. I am satisfied that Mr. Ahmed was in the front passenger seat of Mr. Gayle’s vehicle and Mr. Adem was in the back seat.
[9] A short while later, both men were observed on video in an underground parking garage making numerous trips to a particular corner of the garage. Found in that corner was a firearm that was later identified as the murder weapon.
[10] The three fired cartridge cases found inside Mr. Gayle’s vehicle matched the three fired bullet fragments recovered from the autopsy of Mr. Gayle. Four unfired bullets were found inside Mr. Gayle’s car and one unfired bulled was found outside Mr. Gayle’s car. One of the unfired bullets had a firing pin strike on it, which could have been caused by a gun jamming according to the firearms expert.
[11] I am satisfied based on the statement that Mr. Zeno made to an undercover police officer that Mr. Adem and Mr. Ahmed were both armed with firearms when they entered Mr. Gayle’s vehicle on December 12, 2018 with the intention of stealing his car. In other words, a ‘carjacking’. I am satisfied that there was a struggle inside that car and that during the struggle, one of the men pointed their loaded firearm at Mr. Gayle’s head. I am satisfied that Mr. Gayle grabbed the muzzle of that firearm and forced the slide of that firearm back, releasing the unfired cartridges that were found in and around the vehicle. I am satisfied that during this struggle, the other man used his firearm and shot Mr. Gayle three times and that both men fled the vehicle, leaving Mr. Gayle to die.
[12] I am unable to say which of the two men fired the fatal shots that killed Mr. Gayle. But it matters not. I am satisfied that both men entered Mr. Gayle’s car with loaded firearms with the intention of taking Mr. Gayle’s car. I am satisfied that both men dominated and forcibly confined Mr. Gayle before shooting him to death. After a thorough review of the evidence, I am satisfied that Mr. Adem and Mr. Ahmed were co-principals and equally responsible for the shooting death of Jonathan Gayle.
The Offender
[13] Salman Ahmed comes before this court as a youthful first-time offender. He was 18 years old at the time of this offence and is now 22 years old. Growing up, Mr. Ahmed had the benefit of a loving, stable, and supportive family. Mr. Ahmed’s mother and father were both born in Somalia. His father came to Canada in 1989 as a refugee fleeing the civil war in Somalia. His mother came to Canada in 1995. Today they are both Canadian citizens. Mr. Ahmed’s mother is a full-time caregiver to Mr. Ahmed’s younger brother, who is autistic. Mr. Ahmed’s father supports the family as a taxi driver. After Mr. Ahmed was born, his parents moved to Toronto and settled in Dixon, a neighborhood with a vibrant Somali Canadian population. Up until his arrest for this offence, Mr. Ahmed lived with both his parents and younger brother in Dixon. Mr. Ahmed attended the local elementary and middle school. By all accounts, he was a good-natured child. He was described as positive and friendly towards teachers and students alike. Mr. Ahmed began working during the summer at the age of 16. He successfully completed high school in June 2018. After graduation, he completed his first semester of the electrical engineering program at Humber College. Due to his arrest for this offence, Mr. Ahmed was unable to complete this three-year program. I am told that he remains eager to continue his schooling while incarcerated.
[14] I have also received a number of letters of support for Mr. Ahmed from family, friends and community leaders, all of whom describe him as a young man deeply committed to his family and community.
[15] Mr. Ahmed, through his young life, has had the benefit and support of a loving family and community around him. His young life, however, has not been without its challenges. I am told Dixon is a dense, poor, high-crime neighborhood. This type of information usually comes packaged in a ‘Morris’ report. One was ordered in this case but nothing to date has been filed with the court. Notwithstanding, I accept that Mr. Ahmed was exposed to crime growing up in Dixon. I accept that the violence and personal loss he experienced impacted and influenced the decisions he made leading up to the shooting death of Mr. Gayle.
[16] I want to be clear. Mr. Ahmed’s life circumstances do not amount an excuse for the murder of Mr. Gayle. They do however provide some limited insight or understanding for how it is that Mr. Ahmed, coming from such a good family and community, made the choices he did that resulted in the murder of Mr. Gayle.
[17] Mr. Ahmed has been incarcerated since his arrest on February 20, 2019. He has not been a model prisoner during that time. Quite the opposite. He has been charged with numerous misconducts, some of which have been admitted. He has also been charged with a number of criminal offences. Those details are contained in an agreed statement of fact marked as exhibit 2 on this sentencing hearing. I also acknowledge and take into account the fact that Mr. Ahmed has been subjected to lengthy lockdowns and difficult conditions since being incarcerated.
Victim Impact
[18] Every murder, without question, is a tragedy of epic proportion. The tragedy of this murder, however, is exacerbated by the fact that Jonathan Gayle was a completely innocent victim. Much of the time, victims, due to their participation in criminal activity, are, in part, the author of their own misfortune. That was not case for Jonathan Gayle. Quite the opposite. He was simply driving home after visiting his pastor. Knowing what I now know about Jonathan, he was probably thinking about the opportunities that were waiting for him and how grateful and blessed he was. I received 24 victim impacts statements from Jonathan Gayle’s family and friends. From those, I have learned some things about the big life of Jonathan Gayle. He was clearly an extraordinary human being whose murder has left this wake of devastation for all of those who were lucky enough to know him. All speak of the profound grief they have experienced as result of Jonathan’s murder. The senseless and violent nature of Jonathan’s death continues to haunt his friends and family. They struggle to make sense of something that will never make sense. Their grief is profound. Their sadness, overwhelming. They do, however, share one other thing in common that gives me hope. And that is their love for Jonathan and each other. This is your common ground. It is my hope that the deep love you have expressed for Jonathan and each other will guide you to a place of peace.
Conclusion
[19] I am ever mindful that Mr. Ahmed is a youthful first-time offender and of the obstacles and challenges in his life that have landed him here before me. In my view, however, given the violent circumstances of this murder, the principles of deterrence and denunciation must dominate. The use of firearms combined with the forcible confinement element of this murder justify the imposition of an elevated period of parole ineligibility.
[20] After a thorough review of the caselaw, submissions of counsel and the unique facts that attach to this case, I am satisfied that the mandatory life sentence with an increase in parole ineligibility to 18 years is warranted.