R. v Yousuf, 2023 ONSC 3348

Court File and Parties

Court File No.: CR-19-00007916 Date: 2023-06-05 Ontario Superior Court of Justice

Between: His Majesty The King And: Zakariye Yousuf, Defendant

Counsel: Mr. P. Westgate, for the Crown Ms. A. Dresser, for the Defendant

Heard: August 4, 2022, and April 5, 2023

Reasons for Sentence

M.K. FUERST J.:

Background

1Lisa 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 firms involved in litigation with tow truck companies, along with auto repair shops, that were charging exorbitant storage and other fees.

2As a result of that legal work, Ms. Carr became the target of repeated acts of violence.

3In 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.

4Ms. Carr continued to be engaged in litigation with many tow companies and auto repair shops, including SnowCity Roadside Assistance, and Preferred Shop. Both companies were owned by Abdalwahd “Alex” El-Taii.

5On August 14, 2019, Carr Law had a court appearance in a civil action in which Ms. Carr represented an insurance company against SnowCity Roadside Assistance.

6On August 23, 2019, a vehicle pulled up beside that of Ms. Carr. The male driver, T.S., 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. T.S. was charged with attempted murder of Ms. Carr.

7The 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.

8The gunman on both occasions was Qalid Abderezak. He was arrested the day after he sprayed Ms. Carr’s law office with bullets. He later pleaded guilty before me to intentional discharge of a restricted firearm at Carr Law office knowing or being reckless whether another person was present in the place, and robbery using a restricted firearm. I sentenced him to seven years and five years in jail consecutive, for a global sentence of 12 years in jail less credit for pre-sentence custody.

9Zakariye Yousuf pleaded guilty before me, in respect of the events on August 29, 2019, to one count of attempting while using a restricted firearm to induce Alycia Rose by threats to stop pursuing a legal action [extortion, count 1], and in respect of the events on September 6, 2019, to one count of intentional discharge of a restricted firearm at Carr Law office knowing or being reckless as to whether another person was present in the place [discharge firearm, count 4]. Mr. Yousuf was not present at Carr Law on either date, but he directed Mr. Abderezak to carry out the offences.

10Each offence to which Mr. Yousef pleaded guilty carries a mandatory minimum sentence of five years in jail.

11There has been delay in sentencing Mr. Yousuf because the defence requested an Enhanced Pre-Sentence Report (“EPSR”), which took many months to prepare.

The Circumstances of the Offences

12On March 8, 2019, Mr. Yousuf was released on bail with his mother as his surety, for an offence or offences not specified to me. He was bound by conditions including a nightly curfew to be in his residence on Bradham Path in Etobicoke. On the night of March 15, 2019, the police found that he was not at home as required. A warrant was issued for his arrest on a charge of fail to comply with recognizance. He turned himself in to police a few days later. Subsequently on September 15, 2020, he pleaded guilty to the fail to comply charge and received a conditional discharge.

13On April 18, 2019, Mr. Yousuf was released on a recognizance with two of his siblings named as his sureties. He was bound by conditions including that he reside at the Bradham Path address, house arrest, and that he not possess any weapons. These conditions remained in place in August and September 2019.

(a) August 29, 2019

14Shortly 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.

15Between 12:32 a.m. and 12:22 p.m. that day, Mr. Abderezak had eleven voice calls with Mr. Yousuf. Mr. Yousuf was using a phone that had a number stored in Mr. Abderezak’s contacts list under the name “Polo”. After the third call between them, Mr. Yousuf texted his address to Mr. Abderezak.

16At 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.

17Ms. Rose had her driver’s window down.

18Mr. Abderezak walked directly to that open window, pulled out a handgun that was a restricted firearm, 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.” The Agreed Statement of Facts states that he used the gun to strike her in the face and chest. However, I note that on Mr. Abderezak’s guilty pleas he admitted that the gun made contact with Ms. Rose, but denied that the contact was intentional, and Crown counsel in that proceeding did not take issue with his denial.

19Mr. Abderezak demanded Ms. Rose’s wallet. She handed it over. It contained various identification cards.

20Mr. 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.

21At 12:49 p.m. Mr. Yousuf called Mr. Abderezak’s cell phone, but the call went unanswered. From 1:02 to 10:27 p.m. there were 10 calls between the two men.

22Mr. Yousuf admits that, at the direction of another person, he directed Mr. Abderezak to induce Ms. Carr, by way of threat with a firearm, to stop pursuing a legal action. It is his position, and Crown counsel has not taken issue with the assertion or established otherwise, that he did not direct Mr. Abderezak to assault or rob or steal anything from Ms. Carr or any of her employees.

(b) September 6, 2019

23On August 30, 2019, there were ten calls and one text message between Mr. Yousuf and Mr. Abderezak. On August 31, 2019, Mr. Yousuf texted Mr. Abderezak, “Stay out of trouble don’t do that shit fam I got a big job Coming up For u.” Mr. Abderezak texted Mr. Yousuf that he needed money.

24Carr Law continued to appear in court in tow truck related litigation in early September 2019.

25On the evening of September 5, 2019, Mr. Yousuf texted Mr. Abderezak, “Live upti I been sick n bare shit happen but yo got a next job ur wit it or nah?” Mr. Abderezak replied, “And what about what you owe me”.

[26] On the morning of September 6, 2019, between 11:32 and 11:53 a.m., 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” [meaning “Say no more”]. Mr. Yousuf: “Next big job but we have to go spry up the place cuz we didn’t get the right one. Delete this msg after you read it upti plz”. Mr. Abderezak: “Snm”.

27Additionally, at 11:51 a.m. Mr. Yousuf texted Mr. Abderezak, “Call tt Call tt”.

28It is admitted that the reference to “spry up the place” was a direction by Mr. Yousuf to Mr. Abderezak to shoot at the Carr Law office building. His comment “we didn’t get the right one” was a reference to the August 29 robbery of Ms. Rose. It was an acknowledgement by Mr. Yousuf that the August offence directed by him at the direction of another person, had intended to target Ms. Carr.

29From 11:57 a.m. to 5:06 p.m., there were 27 calls between Mr. Abderezak’s cell phone and a number stored in his contacts list as “TYTy”. While some of them were missed and some of them lasted zero seconds, there were connected calls.

30At 12:10 p.m. Mr. Yousuf texted Mr. Abderezak, “6 Eva Rd Call me when ur at the side door right where you pull in”.

31At 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.” It is admitted that Mr. Yousuf was asking Mr. Abderezak if he had carried out the shooting yet, and acknowledging that this “job” was being directed by another person.

32Three phone calls from Mr. Yousuf to Mr. Abderezak followed. The last one was at 3:56 p.m.

33At 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.

34Around 4:30 p.m. a representative from Preferred Shop attended at Carr Law and dropped off a Purolator package that had been served on them by Carr Law one month earlier.

35At 5:06 p.m. Mr. Abderezak drove the Volvo into the plaza where Carr Law was located. He parked directly in front of the main 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.

36Mr. 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.

37From 5:09 to 5:47 p.m. there were three connected calls between Mr. Abderezak and the number for “TYTy”.

38Security video captured the shooting, as well as the activity in the parking lot immediately before and after the shooting.

39The 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.

40Three 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 on the couch. 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.

41The police found seven bullet casings in the area where Mr. Abderezak had parked.

42Mr. 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.

43Mr. Yousuf was arrested on April 23, 2020, after he was identified as the user of the “Polo” phone.

Victim Impact Information

44No Victim Impact Statements were provided.

Firearm Crime Statistics

45Statistics provided by York Regional Police show that in each of 2020 and 2021, the police service laid more than 130 charges of possession of restricted or prohibited firearms, either loaded or with readily accessible ammunition. By mid-July 2022, 98 such charges had been laid.

The Circumstances of Mr. Yousuf

46Mr. Yousuf is 24 years old. He turned 21 years old just before the September 2019 offence. He is single and has no dependents.

47The EPSR prepared at the request of the defence provided information about Mr. Yousuf’s background, and the influence of systemic issues on his experiences as a young Black man.

48Mr. Yousuf’s parents are Somalian. They are of the Muslim faith. They came to Canada around 1991. Mr. Yousuf is the fourth of their five children. Mr. Yousuf’s father left the family in 2004, when Mr. Yousuf was seven years old. His father’s departure was upsetting to him. He and his father are not close.

49Mr. Yousuf’s mother raised the children as a single parent. Mr. Yousuf had a close relationship with her and with his siblings. His older brothers tried to serve as father figures to him, and to enforce their mother’s rules, but Mr. Yousuf was not always responsive to them.

50The family lived in an apartment and later a townhouse in south Etobicoke, both of which were cooperative units where rent is based on income. The area was inhabited primarily by white residents. Mr. Yousuf’s mother worked long hours in a factory to provide for the family, at first on the day shift and later on an evening shift. She often worked six days a week. Mr. Yousuf described the family as being neither wealthy nor poor, but he and his brothers realized that they did not have the same clothing and other things as their friends. His older brother described the family’s financial situation as challenging.

51Mr. Yousuf found school difficult. Unlike his siblings who did well academically, he struggled to learn, did not meet Ontario curriculum expectations, and had excessive latenesses and absences. He found it difficult to behave in the classroom and was disruptive, in part because of frustration with his learning challenges. The family felt that teachers at the school were less supportive of racialized students than white students and that this contributed to Mr. Yousuf’s lack of self-confidence. Mr. Yousuf was moved ahead from one grade to the next in elementary school, despite his lack of actual achievement.

52Mr. Yousuf completed grades 7 and 8 at a private Islamic school. He did better there, but his mother could not afford the fees, so he returned to a public school for high school.

53Because Mr. Yousuf’s mother worked evenings, Mr. Yousuf had freedom to be out of the home. He became involved with negative peers and older individuals involved in criminality who used him to do things they could not get away with.

54By about 2016, the neighbourhood changed. Substance use became more prevalent, along with some measure of gun violence. Mr. Yousuf and his brothers described being stopped and harassed by police officers working in the neighbourhood as part of the Toronto Anti-Violence Intervention Strategy, which involved “carding”.

55Mr. Yousuf told the EPSR author that he began taking Percocets when he was 18 or 19 years old, and it became a daily habit. When he was 20 years old, he added Lean. He also used marijuana.

56Eventually he was dismissed from high school as a bad influence. He registered at City Adult Learning Centre for grade 12, but did not complete his credits. This led to conflict with his mother. She asked him to leave home. He rented a place with some friends. The EPSR states that he earned enough money to purchase a car and clothing, although it is not clear how he did so.

57Mr. Yousuf told the EPSR author that he fell into debt to his best friend, and was obligated to repay the money. He said that he accepted an offer from a friend to earn money from “random jobs”, apparently of a criminal nature. He intended his involvement in the criminal activity to be short-lived, but got caught up by the idea of making easy money.

58Mr. Yousuf expressed remorse to the author of the EPSR for the harm he caused the victim of his offences.

59The author of the EPSR suggests that Mr. Yousuf’s involvement in crime is rooted in his experience of family breakdown, poverty, and disconnection from the education system. Feeling that he did not belong anywhere, he found community with peers involved in crime. She refers to him becoming involved in a cycle of arrest and incarceration, although the details of that cycle are not clear from the report. She describes his motivation for criminal activity as economic gain.

60The EPSR author points to Mr. Yousuf’s family as a source of strength that can facilitate positive change for him. His brothers have been successful. They and their mother remain supportive of him. The author suggests that Mr. Yousuf needs the opportunity to learn a skill so that he can support himself in the future and avoid repeat offending. He has an interest in learning a trade, and moving to a new city on his release from jail.

61Mr. Yousuf expressed his remorse for his offences through his lawyer, Ms. Dresser.

The Pre-Sentence Custody

62Since his arrest, Mr. Yousuf has spent 1,138 days in custody, which at one and a half to one is 1,707 days, or 57 months. He has been held at three detention centres: Central East Correctional Centre, Central North Correctional Centre, and Toronto South Detention Centre.

63His pre-trial detention spanned the course of the COVID-19 pandemic. He contracted the virus more than once.

64Institutional records show that Mr. Yousuf was locked down for all or part of a day because of staffing shortages at those institutions, on over 400 occasions. Often the lockdowns were for successive days. Mr. Yousuf described in an affidavit the negative emotional impact on him of the lockdowns and related conditions.

The Positions of the Parties

65On behalf of the Crown, Mr. Westgate seeks a total sentence of 14 years in jail, comprised of six years in jail on the count of extortion and eight years in jail consecutive on the count of discharge a restricted firearm, less pre-sentence custody credited at one and a half to one. He says that this takes into account totality, as well as the mitigating factors including the harsh conditions of the pre-sentence custody. The offences are serious. They involved the targeting of Ms. Carr and her employee Ms. Rose because of their work in the civil justice system. The objectives of denunciation, protection of the public and deterrence are paramount. Mr. Westgate emphasizes the significant aggravating factors, including that both offences were planned and premeditated; they involved the terrorizing of Ms. Carr and Ms. Rose; once it was realized that Mr. Abderezak had threatened the wrong person, Mr. Yousuf directed him to spray Carr Law office with bullets, which Mr. Abderezak did in broad daylight with a risk of harm to many people; and Mr. Yousuf was on bail at the time and prohibited from possessing firearms. Mr. Westgate contends that consecutive sentences are appropriate because these were two separate incidents.

66The Crown seeks DNA orders, s. 109 weapons prohibition orders, and a non-communication order.

67On behalf of Mr. Yousuf, Ms. Dresser asks that I impose concurrent sentences of seven years in jail on the count of discharge a restricted firearm, and five years in jail on the count of extortion. She contends that the two offences were part of the same transaction, and that it is clear from the text messages that Mr. Yousuf intended that only one offence be committed, in respect of Ms. Carr. If I disagree, Ms. Dresser asks that I impose consecutive sentences of five years in jail on each count, for a total sentence of 10 years' imprisonment. The sentence sought by the Crown would be crushing for Mr. Yousuf. She emphasizes the mitigating factors, including that Mr. Yousuf pleaded guilty notwithstanding there were triable issues; his difficult background that involved experiences of racism at school and in the community; the economic motivation for his offences; his remorse; and his strong family support. Ms. Dresser suggests that Mr. Yousuf has incredible rehabilitative potential.

68Ms. Dresser made no submissions about the ancillary orders sought by the Crown.

The Principles of Sentencing

69The Criminal Code sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.

70Section 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.

71Section 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.

72Section 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.

73In 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

74The offences to which Mr. Yousuf pleaded guilty both carry a mandatory minimum sentence, reflecting Parliament’s view of their seriousness. The offence of extortion 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. 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”.

75Crown and defence counsel relied on a number of cases in support of their respective positions. The index to Crown counsel’s casebook was made Exhibit “A” to the sentencing proceedings, and the index to the cases relied on by defence counsel, Exhibit “B”. I have reviewed all of those decisions, although I will refer to only some.

76In R. v. Bellissimo, 2009 ONCA 49, 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.”

77In 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.

78Jama 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.

79In 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.

80Sentencing ranges are primarily guidelines, and not hard and fast rules. See, 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

81The 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.

82Specific deterrence and rehabilitation must also be considered where a youthful offender is being sentenced to a first penitentiary sentence. See, R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at paras. 36-37.

83There 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

84There are important aggravating factors that are common to Mr. Yousuf’s offences. 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, her associate 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. Further, they were exposed to potential physical harm while going about their daily business at their workplace.

85Additional aggravating factors common to the offences include the following:

1. While I accept that Mr. Yousuf was not the mastermind behind the incidents, and gave direction to Mr. Abderezak at the direction of another person, on both occasions he did so deliberately. As the numerous texts and telephone contacts between them indicate, this was not impulsive, spur-of-the-moment conduct by Mr. Yousuf.
2. On both occasions, he knew that a firearm would be involved in the offence he directed. By giving the directions he did, Mr. Yousuf took the risk that someone could be physically harmed.
3. He was on bail at the time of his involvement in both offences.
4. One of his bail conditions prohibited him from possessing weapons. It is not admitted, nor did the Crown otherwise prove, that Mr. Yousuf was in possession of the firearm or firearms used by Mr. Abderezak. But, directing someone else to commit crimes using a firearm was contrary to the spirit of the prohibition that bound him.
5. The firearm or firearms Mr. Abderezak 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.
6. The statistics filed by Crown counsel show the prevalence of illegal firearms in York Region.
7. 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. The photographs showing the state of the law office after the shooting are horrifying. I have no doubt that the two offences in which Mr. Yousuf was involved made it abundantly clear to Ms. Carr and to her law firm employees that they were at very real risk of physical harm because of her work as a lawyer and their work for her.

86There are additional aggravating factors with respect to the shooting of the law office. They include:

1. The knowledge that they had victimized the wrong woman (“we didn’t get the right one”), did not stop Mr. Yousuf. Instead, he directed and encouraged the commission of a second offence that could not fail to intimidate Ms. Carr and her employees: the shooting up of their workplace.
2. Mr. Yousuf did not simply tell Mr. Abderezak to fire a shot at the premises. He told him to “spry up the place”, in other words to discharge the gun at the law office multiple times. It was patently obvious that multiple discharges would enhance the risk of harm to anyone in or around the place.
3. Mr. Yousuf fully expected that Mr. Abderezak would carry out the shooting during business hours, when people could be expected to be at and around the law office. I say this because at 1:46 p.m. he pressed Mr. Abderezak about whether he had carried out the shooting, and reminded him that the next “job” depended on Mr. Abderezak acting “quickazzz”.

87There are mitigating factors, including:

1. Mr. Yousuf pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his wrongdoing.
2. He pleaded guilty despite there being triable issues in his case.
3. He expressed remorse to the EPSR author, and in court through his lawyer.
4. He is a first offender, and although an adult and not a young person, he was youthful at the time he committed the offences.
5. He grew up in disadvantaged circumstances, in a low income family and without a father figure once his parents’ marriage broke down. Learning issues made it difficult for him to achieve success in school, unlike his older siblings. This created low self-esteem and disconnection from the school system, ultimately leading him to leave high school without obtaining all his credits. Anti-Black racism in school and in the community where the family lived contributed to his lack of a sense of belonging. These experiences as a whole made him more vulnerable to involvement in criminal activity, even though his mother and older brothers are pro-social.
6. The conditions of his pre-sentence detention, much of it during the COVID pandemic, have been harsher than usual. In particular, he was locked down and confined to his cell on hundreds of occasions because of staffing shortages.
7. Mr. Yousuf has rehabilitative potential. He has shown some insight into steps he needs to take to avoid recidivism, including learning a trade. His mother and siblings remain supportive of him, which will be important on his release from jail.

88Mr. Yousuf’s desire to make easy money to pay the debt he had accrued, along with his substance use, provide context to his criminality, although I do not treat them as separate mitigating factors in the circumstances of this case.

Decision

89The principles of denunciation, protection of the public, and general deterrence are of primary importance in sentencing Mr. Yousuf. Because he is a young first offender, specific deterrence and rehabilitation cannot be ignored.

90Both offences to which Mr. Yousuf pleaded guilty are serious. Each, to Mr. Yousuf’s knowledge, involved the use of a firearm. As the Court of Appeal for Ontario observed years ago, firearms and handguns in particular are a menace in the greater Toronto area. See, R. v. Brown, 2010 ONCA 745, at para. 14. The statistics compiled by York Regional Police and filed in these proceedings confirm that the proliferation of handguns, and the associated threat to public safety, continue to plague York Region.

91The gravity of the offences is enhanced because they involved calculated and deliberate attempts to intimidate a member of the legal profession from doing what she was educated, trained, and licensed to do: represent to the best of her ability clients seeking to assert their legal rights in a court of law. The work of lawyers is fundamental to maintaining the rule of law on which our society is based. Efforts to intimidate a member of the legal profession are not just attacks on the individual lawyer, they are attacks on the legal profession, and on core values that anchor our civilized society. Offences of this kind cannot be condoned. When proven, they warrant exemplary sentences.

92The determination of the appropriate sentence for Mr. Yousuf requires consideration of the sentence already imposed on Mr. Abderezak. Both men pleaded guilty to offences arising from the events of August 29 and September 6, 2019. The backgrounds and personal circumstances of the two have similarities. However, Ms. Dresser suggests that I can and should treat Mr. Yousuf differently than Mr. Abderezak in that I should impose concurrent rather than consecutive sentences on Mr. Yousuf. She contends that I should do so because the offences to which Mr. Yousuf pleaded guilty were part of the same transaction given that he did not plead guilty to the robbery of Ms. Rose. She also asserts that Mr. Yousuf is less morally blameworthy than Mr. Abderezak, and so he need not receive consecutive sentences that would necessarily total more than seven years.

93While the offences to which Mr. Yousuf pleaded guilty had a common goal, the intimidation of Ms. Carr to the point that she would abandon her representation of certain clients in ongoing civil proceedings, they were separate and distinct offences with different essential elements. They were committed on different occasions several days apart. Mr. Yousuf participated in the second offence after his participation in the first offence was completed. I am unable to agree that the offences to which Mr. Yousuf pleaded guilty are part of a single transaction such that they should be served concurrently. Moreover, these offences aimed at a member of the legal profession struck at the heart of the justice system. They warrant consecutive penitentiary sentences, with totality taken into account.

94In assessing Mr. Yousuf’s degree of responsibility, his role in the offences is relevant. He was not the architect of the tactics intended to intimidate Ms. Carr, nor was it established that he was the source of any restricted firearm and ammunition that Mr. Abderezak used, nor was he present with Mr. Abderezak when the latter robbed Ms. Rose believing her to be Ms. Carr or when he discharged seven gunshots into Carr Law office. Mr. Yousuf’s role was that of the middleman who gave directions to Mr. Abderezak on behalf of someone else. That said, Mr. Yousuf directed the commission of two extremely serious offences, communicating with Mr. Abderezak numerous times. He directed Mr. Abderezak knowing that a lawyer was the intended target, knowing that a firearm would be used, and on the second occasion knowing that it would be discharged more than once with a risk that someone would be physically harmed. His moral blameworthiness is high.

95Crown counsel seeks a global sentence for Mr. Yousuf that is longer than that I imposed on Mr. Abderezak. I am unable to agree that that is justified, because of their respective roles and because a sentence of 14 years in jail would be crushing for Mr. Yousuf, who is somewhat younger than Mr. Abderezak.

96Balancing the aggravating and mitigating factors, and having regard to the principles and objectives of sentencing including totality, I conclude that Mr. Youseuf should receive a sentence somewhat lower than that imposed on Mr. Abderezak.

Conclusion

97Mr. Yousuf, please stand.

98On count 1 I sentence you to five years in jail, and on count 4 to five years in jail consecutive. Your pre-sentence custody of 57 months is credited against the sentence on count 1, leaving three months to serve on that count, followed by the consecutive sentence on count 4, for a total sentence remaining to be served of five years and three months.

99There is a DNA order, a s. 109(2)(a) order for 10 years, and a s. 109(2)(b) order for life on both counts. A s. 743.21 non-communication order is imposed in respect of the persons previously named by Crown counsel.

Justice M.K. Fuerst

Released: June 5, 2023

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.