Court File and Parties

COURT FILE NO.: CR-21-30000592 DATE: 2023-11-20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and - SAHAND NOROUZ-ZADEH

Counsel: Tim Edwards and Anna Gilmer, for the Crown Ari Goldkind, for the accused

HEARD: June 5 and October 5, 2023

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

[1] On June 5, 2023, the accused, Sahand Norouz-Zadeh, pled guilty to the crime of manslaughter in the killing of Muhammad Waqar Alam, which took place on or about December 19, 2019, in Toronto. The accused had been originally charged with second degree murder, but the manslaughter plea was acceptable to the Crown.

[2] On October 5, 2023, the sentencing hearing in relation to this matter was conducted. The Crown sought the imposition of a 4-year penitentiary term of imprisonment, after the accused was given the appropriate credit for the time he has already served in custody, and for his lengthy time on the conditions of a strict judicial interim release order. However, defence counsel suggested that, once the accused was given the appropriate credit for his pre-sentence custody and his lengthy period on strict terms of bail, the accused should be given a conditional sentence of less than 2-years duration.

[3] Like many manslaughter cases, the imposition of a fit and appropriate sentence in this case is made more difficult by virtue of the fact that: (1) the deceased is dead, and his killing was unlawful, and no sentence can remove the pain and anguish which continues to be felt by his surviving family members; and (2) the accused is a young man with no prior criminal record, who appears to have acted precipitously and excessively in self-defence, but who is now filled with remorse and regret for his actions. Accordingly, trying to impose a fit sentence that fairly and appropriately considers both aspects of this case is an exceptionally difficult one. See: R. v. Hermiz, at paras. 10-13.

[4] Nevertheless, today is the day that has been selected for the imposition of sentence. So that is what will be done today.

B. The Facts of the Offence

[5] In support of the plea of guilty, the Crown alleged the following facts, which were fairly accepted as “exactly right and true” by the accused. Indeed, these facts were put before the court in writing in an agreed statement of facts.

[6] On Thursday, November 19, 2019, Muhammad Waqar Alam, in the company of his friend, Deepak Uppal, at the commercial plaza at the south-east corner of Birchmount Road and Bonis Avenue in the city of Toronto. The accused, Sahand Norouz-Zadeh and his friend, Aly Oudah, were also at the plaza. Mr. Uppal and Mr. Alam were outside a store at the plaza and the accused and Mr. Oudah exited the store and walked past them, toward Birchmount Road.

[7] Mr. Uppal recognized the accused as someone who owed him some money. As the accused and his friend walked away from the plaza, Mr. Uppal pursued them and demanded the money that he was owed by the accused. Mr. Alam followed Mr. Uppal.

[8] As Mr. Uppal and Mr. Alam approached, the accused and Mr. Oudah stopped on the sidewalk along Birchmount Road. Mr. Uppal and Mr. Alam caught up with them there.

[9] Mr. Alam confronted the accused and Mr. Oudah on the sidewalk. An argument quickly erupted and a physical fight quickly ensued. During this fight, Mr. Uppal stepped back and Mr. Alam used force towards both Mr. Oudah and the accused, and punches were thrown in both directions.

[10] Just a matter of seconds after the fight commenced, the accused pulled out a large hunting-style knife that he had on his person. The knife had a blade that was approximately seven inches long. The accused then used the knife to stab Mr. Alam twice in the abdomen.

[11] A surveillance video camera nearby captured this incident, from a distance, but it shows the remarkably short duration of the just seconds-long interaction between the two groups of young men on the sidewalk by Birchmount Road.

[12] When the fight quickly ended, Mr. Uppal left the sidewalk area and walked back toward the plaza. The accused and Mr. Oudah then continued walking southbound on the sidewalk next to Birchmount Road. Mr. Alam followed Mr. Uppal and walked back toward the plaza.

[13] Mr. Uppal and Mr. Alam entered the convenience store at the plaza. Mr. Alam began to look ill. It was at that point that the extent of Mr. Alam’s injuries was first discovered. Indeed, as a result of being stabbed by the accused, Mr. Alam suffered three wounds. First, he suffered two related superficial wounds – an entry wound and an exit wound – to the side of his abdomen. Second, he suffered one large stab wound to the front of his stomach, which had caused a portion of his internal organs to protrude from his abdomen.

[14] Emergency services were called, and Mr. Alam was rushed to the hospital. That day, Mr. Alam underwent emergency surgery, but he continued to experience complications from the stab wounds to his abdomen.

[15] Subsequently, on December 21, 2019, the accused turned himself in to the police, and provided them with the knife that he had used to stab Mr. Alam. The accused was arrested and held in custody for a “show cause” hearing. Ultimately, the accused was released from custody on bail on December 23, 2019.

[16] On December 31, 2019, Mr. Alam was confirmed to be deceased by neurologic criteria as a result of his injuries. On January 2, 2020, after communication with Mr. Alam’s family, organ support (ventilation) was stopped, and his life was ended.

[17] The accused was re-arrested on January 4, 2020, on elevated charges, and he was, again, released on bail on February 10, 2020.

[18] A photograph of the large hunting-style knife that was used by the accused to stab Mr. Alam, and ultimately end his life, was filed with the court as part of the agreed statement of facts in this case.

C. The Circumstances of the Offender

[19] The accused is now 23 years old. He was just 19 years old at the time of the offence. He has no criminal record. He is single and has no dependants.

[20] The accused was born in Iraq, but came to Canada in 2011 after his parents were divorced, and after he lived in Turkey for a year with his sister. The accused experienced a difficult and traumatic childhood as his parent’s marriage was “frought with conflict,” his father was often abusive, both physically and mentally, and the accused was “raised in a dysfunctional family environment where arguments and abuse were regular occurrences.” The accused and his sisters were witnesses to the violence by their father, and occasionally were the victims of the violence.

[21] The accused kept in touch with his father for a few years after coming to Canada, but that “gradually petered out,” to the point where no one in their family has had any contact with him in a long time, and they have no idea as to his current whereabouts, or even if he is still alive.

[22] The accused now resides with his mother and his sister, and he enjoys supportive relationships with them both. His mother’s boyfriend does not live with them, but the accused thinks of him as his “step-father.” He is actively involved in the accused’s life and they enjoy a “very close relationship.” The accused is not employed and is financially supported by his family.

[23] Family members report that the accused is “polite, quiet and kind of an introvert” and has “never displayed any anger management issues at home.” They also describe him as a “very kind and compassionate young man”. The accused may even be seen as “too relaxed and obedient” as he “rarely shows excitement or agitation.” His family was shocked to learn of the offence given his “gentle and timid” nature.

[24] The accused does not consume alcohol (except for perhaps a couple of times a year), or use any “hard drugs” recreationally. Apparently, the accused now smokes marihuana on occasion, but this has never been problematic for him. There are no physical or mental health concerns regarding the accused.

[25] The accused faced many challenges in high school after coming to Canada. He was frequently “teased and bullied” at school due to his inability to speak English, and because he was “overweight.” Additionally, he had a difficult time making friends at school given his “shy” nature. He was simply unable to “keep up with the work” academically given this language issue. This led to “confidence and self-esteem” issues, which led to him “skipping” classes at school and incurring many “unsanctioned absences.” This caused a serious problem at home, and the Children’s Aid Society monitored the family for a short period of time following this truancy issue. Indeed, at one point, the Youth Court ordered the accused to attend school regularly, and the accused was assigned a social worker to ensure compliance. In the result, the accused went back to school on a regular basis, but he still quit school as soon as he was legally entitled to do so, at the end of grade 11. The accused denied any” physical confrontations with other students during his school years.”

[26] The accused has a “very limited employment history.” After leaving high school, the accused worked at a mechanic shop doing “bodywork” for a couple of months. Then he worked in another body shop for a couple of months more doing “tire changes.” He left that job when he injured his knee at work. After recovering from that injury, the accused has been unsuccessful in obtaining any further employment. The accused now thinks that leaving school was a “bad decision” given the difficulties he has experienced finding employment.

[27] Apparently, since this offence in late 2019, the accused has been on bail and has not looked for any employment opportunities.

[28] The accused’s mother maintains that just a few days before the offence, the deceased beat up the accused, hitting him in the face and leaving the accused painfully unable to open his mouth. She also maintains that the accused did not kill the deceased in an act of “revenge” as the accused was “really scared” of the deceased. However, none of the accused’s family know why the accused was carrying a large knife with him at the time of the offence.

[29] The accused is “very remorseful” for his actions, that led to the death of the deceased, and that he “feels terrible” for what happened. According to his mother, the accused “cries a lot and cannot sleep at night.”

[30] To the author of the Pre-Sentence Report, the accused presented himself as “cooperative and mild-maner,” who was “soft-spoken” and genuinely “anxious” and “worried” about his pending court matters. He “takes responsibility” for his “offending behaviour” and is “remorseful for his actions.” The accused mentioned that, prior to this incident, he had never been involved in any type of physical confrontation.” The accused indicated that he “always thinks about the victim and his family” and “feels remorse for what occurred.” The accused indicated that he pled guilty to the offence as he “wanted to take responsibility for his actions” – he knew that what he did was “wrong” and he “wanted to make things easier for the victim’s family.”

[31] The accused does not belong to any organized groups or activities. He does not engage in any volunteer work, or attend any place of worship. As to his “future goals” the accused says that he wants to go back to high school to continue his education, and then go to college to study “autobody repairs.” He seems “extremely motivated” to “return to school to learn a trade.” Thankfully, he continues to enjoy the “unwavering support” of his family.

[32] Detective Sergeant Terry Browne, of the Toronto Police Service (Homicide Squad) candidly explained to the author of the Pre-Sentence Report that the accused “did everything right after the fact,” in that the accused turned himself in to the police, was cooperative with the police, accepted responsibility in killing the deceased, showed his remorse, and provided the police with the knife he used to stab the deceased. Detective Sergeant Browne aptly noted that the most disturbing part of this offence, apart from the tragic death of the deceased, was that the accused “was carrying and used a big knife.”

D. The Victim Impact Evidence

[33] The deceased was a big part of his family. His absence and loss has, no doubt, been felt by all of his family members. While I will not be able to fully and accurately reflect all of their genuine feelings for this tragic loss, I have carefully considered all of the victim impact evidence in this case. However, nothing that I say or do now will restore the life of the deceased. The family of the deceased will simply have to carry on with their lives, as best as they can, however difficult that may seem at this moment.

[34] The deceased was a “bright student” in school and attended Centennial College in Toronto where he graduated with a Mechanical Engineering Diploma in an industrial program. His surviving family members described him as “very nice, well-mannered, kind, loving and very strong” and as “very honest, smart, sensible, humble and pure-hearted.” He often sought to help his mother, both emotionally and financially, and also tried to help his younger extended family members. When he was killed by the deceased, he was in the midst of planning his wedding and honeymoon with his fiancée.

[35] The killing of the deceased has been a great trauma for his mother, who has suffered emotionally and physically (with an ulcer and Post-Traumatic Stress Disorder), and on his father, who suffers from “extreme anxiety.” That is not meant to in any way diminish the tremendous grief and sorrow felt by the other members of his family.

E. The General Sentencing Principles

[36] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing 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 and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[37] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[38] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

F. Analysis

1. Custodial Credits Due to the Accused – Enhanced Credit for Pre-Sentence Custody

[39] The accused turned himself in to the police on December 21, 2019, and he was held in custody for a short time until his release on bail on December 23, 2019. That is three days in pre-sentence custody.

[40] The accused was subsequently re-arrested on January 4, 2020, on elevated charges, following the death of the deceased, and he remained in custody until his subsequent release on bail on February 10, 2020. That is another 38 days in pre-sentence custody.

[41] Accordingly, by my calculations, the accused has already spent a total of 41 days in pre-sentence custody.

[42] The Crown fairly accepts that the accused must be given the maximum statutory enhanced credit for this pre-sentence custody. I agree. In my view, there is no reason why the accused should not be given 1.5 days credit for each day of his pre-sentence detention, pursuant to s. 719(3.1) of the Criminal Code. See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147, 114 O.R. (3d) 641.

[43] Accordingly, in order to fairly credit the accused with this time in custody, the sentence that would otherwise have been imposed upon the accused will be reduced by approximately 62 days, or just over two months.

2. Additional Credit for Strict Bail Conditions

[44] The accused has been on the strict terms of judicial interim release (including house arrest) since February 10, 2020. According to my calculations, that means that the accused has been subject to these strict terms of judicial interim release for a total of approximately three years and 9 ½ months.

[45] In R. v. Downes (2006), 79 O.R. (3d) 321, at para. 37, the Court of Appeal for Ontario held that, where an accused is the subject of “stringent pre-trial bail conditions” including time spent effectively under “house arrest,” this mitigating circumstance must be given some weight in the sentencing of the accused. Rosenberg J.A., for the Court, held more specifically that, in the circumstances, the accused was entitled to five months credit in relation to the 18 months he was on bail and subject to a condition of “house arrest” requiring him to remain in his residence “except in the company of his surety.”

[46] The accused in the present case has been subject to these similarly strict terms of judicial interim release for a much longer period of time. In my view, in all of the circumstances of this case, a fair custodial credit for the accused in relation to the pre-sentence restrictions that were placed on his liberty is at least a year. Accordingly, the sentence that would otherwise have been imposed upon the accused will also be reduced by slightly more than a year, in order to give him fair and appropriate credit for the duration and strict terms of his bail conditions. See also: R. v. Green, 2023 ONCA 317, at paras. 1-4, 11-17; R. v. Nicholls, 2015 ONSC 8136, at paras. 77-94, 113.

3. Conclusion on Custodial Credits

[47] In the result, fairly adding these custodial credits together, means that the accused is entitled to a total credit of approximately 14 months imprisonment. Accordingly, the sentence that would otherwise have been imposed upon the accused will be reduced by that total credit.

4. The Sentence to be Imposed Upon the Accused Offender

[48] The Crown argues that, before the accused is given any custodial credit for the time he has already spent in pre-sentence custody and the time he has spent on strict bail conditions, the accused should receive a penitentiary sentence of four years imprisonment.

[49] The aggravating features of this case, as alleged by the Crown, are primarily: (1) the accused was walking around, in public, with a large knife in his pocket, which was quite capable of causing serious injury and death; (2) the accused was quick to employ the knife in his very brief physical encounter with the deceased; and (3) the death of the deceased has had a predictably profound impact on the family of the deceased, who cared for him deeply.

[50] There are, however, many important mitigating features of this case. More particularly, as defence counsel has outlined them: (1) the accused is a young man with no criminal record; (2) the background and personality of the accused contain no hint of the violence that was necessary to commit this offence; (3) accused pled guilty to the offence of manslaughter, thereby avoiding a trial in this matter, and he accepted responsibility for his actions; (4) the accused has clearly demonstrated his great remorse and regret over his actions that led to the death of the deceased; (5) the accused attended at the hospital when he realized the dire condition of the deceased, and he subsequently turned himself (and his knife) into the police, and was subsequently cooperative with their investigation; and (6) the accused is someone who can be quickly rehabilitated into a productive and contributing member of society.

[51] Defence counsel has argued that the accused should be given a “conditional sentence” in this case, as there is simply nothing to be gained by having him step back into custody to serve a jail sentence. I must reject this submission as, in my view, it does not fully and fairly take into account the fact that the accused took to carrying with him, in public, a large and lethal knife, and the great speed that he employed that knife, in using it to stab the deceased to death. A conditional sentence, simply requiring the accused to remain at home in the community would, in my view, fail to reflect the gravity of this crime, its aggravating circumstances, and the tragic death of the deceased.

[52] Ultimately, in my view, the accused should be given a penitentiary sentence of four years imprisonment for this offence, as the Crown has suggested.

[53] Such a sentence would, perhaps most importantly, reflect the “fundamental principle” of sentencing, that a sentence must “be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[54] Such a sentence is outside the legislative scope of a conditional sentence, but I would not have imposed a conditional sentence in this case in any event. While such a sentence can certainly serve a denunciatory and deterrent element, such a sentence simply cannot provide the necessary degree of denunciation and general deterrence required in the circumstances of this case.

[55] Further, a sentence of four years imprisonment would appropriately contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by the imposition of a “just sanction” that seeks to: (a) “denounce unlawful conduct” and reflect the permanent and irreparable “harm done” to the deceased, his surviving family, and the community at large that has been caused by the accused’s unlawful conduct; (b) deter the accused offender and others from the commission of such spontaneous violence against others; (c) assist in the rehabilitation of the accused; and (d) promote a sense of responsibility in the accused, and provide the appropriate acknowledgment of the harm done to the deceased, his family and the community more generally. See: R v. Corbett, 2015 ONSC 6118, at paras. 26-33; R. v. Iozzo, at paras. 58-99; R. v. Sor, 2023 BCSC 642, at paras. 3, 17.

[56] However, as I have already indicated, the accused must fairly be given credit for having already served approximately 14 months imprisonment. Once the accused receives this credit, the sentence left for me to impose upon him is a penitentiary sentence of 34 months duration. That is the sentence that I now impose upon him.

G. Ancillary Sentencing Orders

[57] In all of the circumstances of this case, I am compelled to also make the following ancillary sentencing orders. I understand from the submissions of the parties that these orders are not controversial.

[58] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order, in form 5.03, requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The crime of “manslaughter” committed by the accused is a “primary designated offence” as defined in s. 487.04 (a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

[59] Second, pursuant to ss. 109 of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, crossbow, restricted weapon, ammunition and explosive substance for ten years.

[60] Third, pursuant to s. 491 of the Criminal Code, I order the forfeiture of the knife that was used by the accused to stab the deceased.

H. Conclusion

[61] In conclusion, the accused is now sentenced to 34 months imprisonment. He is also subject to the various ancillary sentencing orders made today.

Kenneth L. Campbell J.

Released: November 20, 2023