Court File and Parties

Court File No.: CR-22-00000208-0000 Date: 2024-03-14 Ontario Superior Court of Justice

Between: His Majesty The King And: Sufyan Jogiyat, Salman Jogiyat, Trevell Greene and Mothusi Sebape

Counsel: Sam Scratch, for the Crown Peter Zaduk and Victoria Strugurescu, for Mr. Jogiyat

Heard: October 4, 2023; January 19 and March 6, 2024

Before: M. Forestell J.

Reasons for Sentence of Sufyan Jogiyat

Overview and Positions of the Parties

[1] Sufyan Jogiyat entered guilty pleas on October 4, 2023 to two charges: aggravated assault and possession of cocaine for the purpose of trafficking.

[2] The Crown seeks a sentence of imprisonment of 5 years for the aggravated assault and two years for the offence of possession of cocaine for the purpose of trafficking. Counsel for Mr. Jogiyat submits that sentences of 3 years for the aggravated assault and one year for the possession of cocaine for the purpose of trafficking are appropriate.

[3] In addition, the Crown seeks a forfeiture order for monies found in the apartment of Mr. Jogiyat and in two separate safety deposit boxes in the apartment. Part of the forfeiture order is contested. I have addressed this application in separate reasons and concluded that the balance of the funds in dispute must be forfeited R. v. Jogiyat, 2024 ONSC 1490.

Preliminary Issue

[4] This matter was scheduled for sentencing submissions on January 19, 2024. On that date the Crown sought to lead evidence of aggravating facts with respect to the offence of possession for the purpose of trafficking.

[5] The additional facts that the Crown sought to prove were that Mr. Jogiyat engaged in drug trafficking at the ounce level during a period of just over one month before the search and seizure at his residence. The position of the Crown was that this evidence was relevant as part of the circumstances of the offence. It was argued that it would place Mr. Jogiyat at the level of a mid-level trafficker who supplied to street level dealers. It would also establish that Mr. Jogiyat was engaged in a commercial operation.

[6] Mr. Jogiyat objected to the admission of the evidence, arguing that the evidence related to counts in the indictment to which he did not plead guilty and which he understood were not being pursued by the Crown. Mr. Jogiyat argued that there was insufficient connection between the cocaine found in the apartment and the evidence of previous involvement in trafficking to justify the admission of the evidence as ‘circumstances of the offence.’

[7] I ruled on January 19, 2024 that the evidence was not admissible and indicated that I would provide further reasons. These are those reasons.

[8] Section 725(1)(c) of the Criminal Code, R.S.C., 1985, c. C-46 states that a court,

may consider any facts forming the part of the circumstances of the offence that could constitute the basis for a separate charge. [emphasis added]

[9] The Supreme Court, in R. v. Larche, 2006 SCC 56, considered the scope of s. 725(1)(c). The Court held (at para. 55) that,

‘Facts’ (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct.

[10] As the Supreme Court held in Larche, even if the proposed facts to be proven bear a sufficiently close connection to the offence charged that they can be said to be part of the circumstances of the offence, the court retains a discretion to exclude them.

[11] In R. v. Edwards, 2001 ONCA 1000, 54 O.R. (3d) 737, at para. 64, Rosenberg J.A. set out a non-exhaustive list of factors for a trial judge to consider in deciding whether to exclude evidence of untried offences. These are:

(i) the nexus between the evidence and the offence for which the offender was convicted — the closer the connection the more likely the evidence will shed light on the circumstances of the charged offence;

(ii) the similarity between the evidence and the offence for which the offender was convicted;

(iii) the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence;

(iv) the danger that the sentence hearing will be unduly prolonged;

(v) the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence for the charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordance with s. 718.1;

(vi) whether… the offender has adduced evidence of good character; and

(vii) the cogency of the proposed evidence.

[12] In this case, I acknowledge that there is a nexus between the proposed facts and the circumstances of the offence. I also recognize that Mr. Jogiyat has adduced evidence of his good character. I have concluded that the evidence must nevertheless be excluded because it risks prolonging the sentencing and distracting from the purpose of the sentencing hearing. The facts are directed at supporting two propositions: that Mr. Jogiyat was engaged in a purely commercial operation and that he was engaged in trafficking at the multi-ounce level. These facts are not disputed and are established by the facts already admitted in these proceedings. the additional evidence is not sufficiently material to warrant the expenditure of time.

The Circumstances of the Offences

[13] Mr. Jogiyat’s plea to aggravated assault was based on his participation as a party to an aggravated assault committed in July of 2020.

[14] In the early morning hours of July 26, 2020 three individuals went to the apartment of Wahidullah Wahidullah. The three individuals forced their way into the residence. They forced Mr. Wahidullah’s wife into the bedroom and then two the individuals shot Mr. Wahidullah and Syed Alam. At some point one of the individuals asked Mr. Wahidullah’s wife for the location of money.

[15] Mr. Wahidullah was shot multiple times and suffered significant, life-threatening injuries. He was hospitalized for three weeks and if not for medical intervention he would have died. Syed Alam was also shot multiple times – once to the left chest, once to the lower right flank and once to his hand.

[16] Prior to these events, Mr. Jogiyat assisted another person to locate and place a tracker on a car belonging to Tamim Tarzi who was a surety for, and lived with, Mr. Wahidullah.

[17] Mr. Jogiyat also gave information to one of the individuals who participated in the shooting about who was likely to be in the apartment of Mr. Tarzi. Mr. Jogiyat reported to that person, saying “mainly just his girl and that fat ass” (referring to Mr. Wahidullah and his wife).

[18] Mr. Jogiyat also helped that other person to get a new phone that was used by the person when he travelled to and from the apartment of Mr. Wahidullah.

[19] Just over two hours after the shooting the three individuals who were involved in the shooting met with Sufyan Jogiyat in the driveway of the building where he lived.

[20] Mr. Jogiyat’s intention when he assisted the other person was to help that person rob Mr. Wahidulla. Mr. Jogiyat knew that violence would be used in the robbery, but he did not know that firearms would be used. Mr. Jogiyat knew that one of the individuals who participated in the shooting held an animus for Mr. Wahidullah.

[21] Mr. Jogiyat’s plea to the count of possession of cocaine for the purpose of trafficking arises from the execution of a search warrant on September 3rd, 2020 on the residence of Mr. Jogiyat. Police found and seized 218 grams of cocaine from the bedroom. Mr. Jogiyat, in the agreed facts on his plea of guilty, admits that the cocaine belonged to him and that he possessed it for the purpose of selling it.

[22] The police also located and seized $6,680 in cash from the closet of the bedroom in which the cocaine had been found. Mr. Jogiyat did not contest the forfeiture of that money as proceeds.

Circumstances of Sufyan Jogiyat

[23] Mr. Jogiyat is a 28-year-old first offender. He resides with his aunt and uncle in Cambridge Ontario. He grew up in Toronto and lived with his parents all of his life until his recent move to live with his aunt and uncle. His parents emigrated from India before he was born. His father owns a produce business, and his mother is supported by a disability programme. He grew up in a supportive family although they faced financial struggles. He remains extremely close with his parents and siblings. Mr. Jogiyat completed high school and obtained a two-year diploma in community and justice services.

[24] Mr. Jogiyat is currently unemployed but has previously worked in a grocery store and gas station. He is bound by a condition of bail that he wear a GPS monitor, and this has hindered his ability to obtain employment. His friend, Noorahmed Popal, has offered Mr. Jogiyat employment in the towing industry when Mr. Jogiyat is released from serving his sentence.

[25] Mr. Jogiyat has a broad network of support in the community. In addition to letters from friends and family, I have been provided with letters of support from community members who know Mr. Jogiyat from his involvement in sports, from the mosque and from Mr. Jogiyat’s involvement in the Youth Council in his community.

[26] Mr. Jogiyat was in custody following his arrest on September 3rd 2020 for 43 days. He was subject to lockdown conditions for 13 of those 43 days. All of the 43 days of custody were during a time when COVID-19 restrictions were in place at the detention center. It is well established that the COVID-19 pandemic resulted in unusually harsh conditions in the Toronto area detention centers. The conditions included cancelling or curtailing visits and programmes.

[27] Mr. Jogiyat was released on bail on October 16, 2020 and until June 23, 2023 was subject to a 10 pm curfew and a condition that he could not use cellular devices or the internet except in the presence of a surety. From June 22, 2023 until January 19, 2024 Mr. Jogiyat was on a strict house arrest bail with ankle monitoring.

Analysis

[28] In considering the appropriate sentences to be imposed I have considered the general purposes, principles and objectives of sentencing, as set out in the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”). The fundamental principle of sentencing set out in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29] Section 718 of the Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society and the rehabilitation of the offender.

[30] I have also considered s. 718.2 of the Code which requires that I take into account other principles, including that a sentence be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[31] The most significant aggravating factors with respect to the aggravated assault is the serious impact on the victims and the fact that the offence involved the invasion of the victims’ home. Other aggravating factors are that Mr. Jogiyat played a role in the planning of the home invasion and Mr. Jogiyat was aware of the presence of others in the residence.

[32] Aggravating factors with respect to the possession of cocaine for the purpose of trafficking are the quantity of cocaine and the purely commercial nature of Mr. Jogiyat’s involvement.

[33] Mitigating factors are Mr. Jogiyat’s guilty pleas, his remorse, his family and community support and the fact that he is a fairly youthful first offender. Other mitigating factors are the conditions of his presentence detention and his strict bail.

[34] The aggravated assault in this case “…constitutes a home invasion because it was characterized by the invaders' forced entry into the victims' home for purposes of committing a theft or robbery, knowing that … the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.” R. v. Wright (2006), 2006 ONCA 840

[35] As was noted in R. v. S.(J.), (2006), 2006 ONCA 490, at para. 34, home invasions "are very serious because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals".

[36] In R. v. Wright, the Court of Appeal identified a broad range of sentence for home invasions from four to 13 years depending on a myriad of circumstances including the nature and severity of the criminal acts perpetrated in the course of the home invasion, and the situation of the individual offender.

[37] In the case of R. v. Wang, 2001 ONCA 400, the Ontario Court of Appeal reduced a ten year sentence to five years for a 19 year old first offender who played a peripheral role in three home invasion robberies. The offender was a look-out for two of the three robberies. He carried a sword and entered the home in one robbery although he had no contact with the victims. He played no part in the planning of the robberies. He had been on house arrest bail for four years pending the appeal.

[38] Mr. Jogiyat, although he did not attend the home invasion, played an integral role in the planning of invasion of the home of the victim. The seriousness of the offence and the impact on the victim call for a denunciatory sentence. I have considered Mr. Jogiyat’s youthfulness and the fact that he has no criminal record. I have considered the principle of restraint and the need to impose the lowest sentence possible that meets the objectives of denunciation and deterrence.

[39] I find that the appropriate sentence would be 4.5 years’ imprisonment before consideration of harsh conditions of pre-sentence custody and house arrest bail. Considering these additional factors in mitigation, I would reduce the sentence by two months to four years and 4 months.

[40] With respect to the offence of possession of cocaine for the purpose of trafficking, the range of sentence for a “mid-level trafficker” is approximately 2-5 years R. v. Woolcock, [2002] O.J. No. 4927 at para.15.

[41] The amount of cocaine supports the inference that Mr. Jogiyat was engaged in a commercial enterprise supplying ounce amounts to street level traffickers. Having considered that Mr. Jogiyat is a youthful first offender with good prospects for rehabilitation and with family support, his sentence should fall at the lower end of the range. I would impose a sentence of 18 months for the offence of possession of cocaine for the purpose of trafficking.

[42] The offences are separate criminal ventures and should be consecutive. I have considered totality and concluded that a global sentence of 5 years and ten months is not unduly long and harsh.

Conclusion

[43] I therefore sentence Mr. Jogiyat to 4 years and 4 months imprisonment on the charge of aggravated assault and 18 months consecutive for the offence of possession of cocaine for the purpose of trafficking. The global sentence before credit for actual time in custody is five years and 10 months. Mr. Jogiyat spent 43 days in presentence custody. Credited at 1.5 to 1 he is entitled to 65 days credit. This will leave a sentence of five years, 7 months and 28 days left to serve.

[44] There will also be a s.109 order for life and a DNA order.

Released: March 14, 2024 M. Forestell J.