Court File and Parties

COURT FILE NO.: CR-23-1106 DATE: 20240603

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - SALMAN JOGIYAT

Counsel: Carolyn Otter and Sam Scratch, for the Crown Hussein Aly and Humza Hussain, for the accused

HEARD: May 31, 2024

K.L. Campbell J.:

Reasons for Sentence

A. Overview

[1] The accused, Salman Jogiyat, was charged with the alleged first-degree murder of Nazirullah Abdulrashid, on April 5, 2020, in the area of Leaside Park in Toronto.

[2] That night, the deceased was shot to death, suffering multiple gunshot wounds, from close range, as he sat in the front passenger seat of a white Honda Civic. During that trial, the Crown had contended that the accused had planned and deliberated over the killing of the deceased, and that the accused had been involved in his killing, either as a principal or a party. The accused testified in his own defence, admitting that he had shot the deceased twice, in self-defence, when the deceased had unsuccessfully tried to shoot him, as the accused sat in the back seat, behind the driver’s seat, in the white Honda. The accused testified that he then ran away from the vehicle. The defence argued, with the evidentiary support of the pathologist, that these two shots (i.e. the only two shots that, directionally, the accused could have fired while he and deceased were both inside the white Honda) were not fatal injuries, but that the deceased was then shot to death by a third party, who stood just outside the vehicle and shot the deceased many times through the passenger side of the vehicle.

[3] During his trial testimony, the accused was predictably asked about the identities of the third party who allegedly killed the deceased, and about the identities of some of the other individuals who were involved in the circumstances surrounding the killing of the deceased. The accused candidly admitted that he knew the identities of all of these people, but he would not disclose them. While he had affirmed that he would tell the truth, the whole truth and nothing but the truth, when he entered the witness box, he nevertheless refused to outline the identities of any of these individuals.

[4] The accused repeatedly explained that he was afraid that someone would order a transcript of his testimony and send it to the jail where he was imprisoned, and that he would eventually be killed or badly hurt, for being a “rat.” The accused also suggested that he was worried about the safety of his family. The accused refused to disclose his reasons for this evidentiary position, or say whether he had been subject to any threats or assaults before beginning his testimony.

[5] When this began to happen, I permitted the accused to speak privately to his lawyer, and get his legal advice as to what he can or should do. I also told the accused that I was tentatively of the view that, if he continued to refuse to answer the proper questions posed to him by the Crown, I would (if asked) order him to answer those relevant questions and, if he continued to refuse to answer those questions, I would cite him for contempt of court for refusing to follow my order. Counsel for the Crown and for the accused uniformly agreed that this was the correct procedure to follow in such circumstances. See: R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280. In the result, that is what happened, on numerous occasions, during the rest of his trial testimony.

[6] More particularly, after obtaining the advice from counsel, the accused refused to answer any questions about the identities of these other individuals or implicate any of them in the circumstances surrounding the murder of the deceased. When the Crown asked me to order the accused to answer these questions, I did. I told the accused, in clear and unmistakable terms, that he was legally obliged to answer these relevant and probative questions and, if he continued to refuse to answer these questions, I would cite him for “contempt of court,” and we would deal with that issue at the conclusion of the jury trial. When the accused refused to abide by my direct order and, continued to refuse to answer the questions, I cited him for contempt of court, and told him that we would deal with that issue at the conclusion of the trial. This all took place, on numerous occasions, in the presence of the jury.

[7] Moreover, I ultimately instructed the jury, in some detail: (1) that they should consider the evidence of the accused like any other witness, and that they could believe some, all, or none of his testimony, applying the same considerations and factors that they did with respect to all of the other witnesses; (2) that they were required to apply the three-pronged test from R. v. D.W., [1991] 1 S.C.R. 742, to ensure that the Crown’s heavy burden of proof was applied correctly in a case where the accused has given evidence and denied his alleged involvement in the commission of the offence; (3) that they were entitled to take into account his refusal to answer questions in assessing his credibility and reliability as a witness – as when witnesses takes the witness box it is not for them to decide which questions they will answer and which ones they will simply refuse to answer; (4) that I had drawn no conclusions about the credibility and/or reliability of the accused as a witness, as that was their responsibility, not mine; (5) the accused was only cited for contempt of court, not convicted of contempt of court – that issue would not be resolved until the conclusion of the trial; (6) the jury should not speculate about what answers the accused might have provided to the questions that he refused to answer; and (7) the jury could not draw any inference as to the guilt or innocence of the accused in connection with the charge of murder from the contempt of court citation.

[8] On the evening of May 30, 2024, the jury returned its verdict in this case, finding the accused not guilty of any offence in connection with the killing of Mr. Abdulrashid. The jury found him not guilty of the charged offence of first-degree murder, and they also found him not guilty of the various lesser and included offences they were also instructed to consider.

[9] The following day, on May 31, 2024, the accused, recognizing that he could have trial concerning his alleged contempt of court, effectively pled “guilty” to the contempt of court citation. Turning to the issue of sentence, the Crown sought the imposition of a four-year penitentiary term of imprisonment. Defence counsel suggested, however, the imposition of a somewhat shorter penitentiary term, one of approximately 24 to 30 months duration. Today is the day scheduled for the imposition of sentence.

B. The Personal Circumstances of the Accused

[10] During his testimony at his recently concluded jury trial, Mr. Jogiyat testified that he is 22 years old, and that his date of birth is December 6, 2001. He explained that he was just 18 years of age in April of 2020.

[11] Mr. Jogiyat testified that he grew up living at a residence on Thorncliffe Park Drive in Toronto, with his two parents and his three siblings, an older brother and sister, and a younger brother. The accused explained that he has lived at this residence virtually his entire life. He explained, however, that at one point, his family rented a house in Cambridge, so he also spent some time there.

[12] Mr. Jogiyat testified that he attended Thorncliffe Park Public School as a child. He explained that he has subsequently learned that he has a Mild Intellectual Disability (MID). Before learning of this “label,” however, the accused just knew he had some type of “learning disability” which affected his “memory and focus.” He explained that he was put into “special classes” in school, starting in grade one, and continuing the “whole time” he was in school. Mr. Jogiyat explained that other students would “make fun” of him and call him names for not being very good at school. Mr. Jogiyat testified that he only remained in school until grade nine, at which point he started getting “kicked out” of schools, and he ultimately “stopped going” to school, and started just “hanging around the neighbourhood, selling drugs.

[13] The accused was shot in his right leg, in 2019, when he was about 17 years old, while attending the “Taste of the Danforth” event, apparently due to some “neighbourhood” conflict, given that he was wearing a sweater representing a sports team from the Thorncliffe Park area.

[14] The Report about the accused, from “Step Stone Psychology,” prepared by Dr. Nina Vitopoulos and Dr. Shanelle Henry-Gordon, and dated January 9, 2024, confirmed that the accused has a “Mild Intellectual Disability.” Indeed, the testing performed upon Mr. Jogiyat confirmed his well-below average performance in intellectual testing – it suggested that he has “impaired” intellectual functioning and “very significant cognitive and learning difficulties.”

[15] The accused testified that, growing up, he played ice hockey for a couple of years, when a teacher worked to get him into the free sports program. However, he quit playing ice hockey when he was 15 or 16 years old, when the free program ended. Then, he started playing free ball hockey that was available in his neighbourhood.

[16] Mr. Jogiyat testified that he eventually got his high school diploma in “prison,” at the Toronto East Detention Centre, where he is now, and where he has been for some three or four years. The date on his diploma is September 28, 2022. Mr. Jogiyat explained that he was able to get this diploma with the assistance of extra one-on-one help from his teachers.

[17] With respect to his drug-selling activities, the accused testified that, at first, when he quit school, he started “selling weed” and that he used the money he received in connection with this activity to “buy shoes and food from the cafeteria.” He admitted that, later, he started selling “cocaine and crack.”

[18] The accused has a significant criminal record. More particularly:

• On October 5, 2018, the accused was convicted, under the Youth Criminal Justice Act, of the offences of Trafficking in a Schedule I Controlled Substance, Possession of a Schedule I Substance for the Purpose of Trafficking, Possession of Property Obtained by Crime, and Failing to Comply with a Recognizance – for which he was sentenced to an 18-month term of probation and a mandatory weapons prohibition order;
• On January 17, 2023, the accused was convicted, under the Criminal Code (as an adult), of the offences of Conspiracy to Unlawfully Confine another person, Possession of a loaded Prohibited Firearm, and Possession of a Firearm While Prohibited – for which he has not yet been sentenced.
• On October 3, 2023, the accused was convicted, under the Criminal Code (as an adult), of the offences of Robbery and Attempted Murder – for which he has not yet been sentenced.

C. The General Sentencing Principles

[19] 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.

[20] 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.”

[21] 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;
• When 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.

[22] In the circumstances of the present case, the main sentencing principles must be, in my opinion, deterrence and denunciation. The accused was not subpoenaed to testify and, therefore, had no choice but to testify. Rather, the accused simply elected to testify in his own defence. He did not have to testify – he chose to testify. But, having elected to testify, and having affirmed to tell the truth, the whole truth and nothing but the truth, it was not for him to personally determine which questions he would answer, and which questions he would refuse to answer. I directed him to answer the proper questions that were posed to him, yet he steadfastly refused to answer them. By refusing to follow my direct orders about questions properly put to him, he was clearly guilty of contempt of court. Indeed, his refusal to follow those orders strikes at the very heart of the justice system, and now compels the imposition of a significant penitentiary term of imprisonment for his blatant contempt of court.

D. Analysis – The Term of Imprisonment in This Case

[23] In my view, the accused should now be sentenced to three years of penitentiary imprisonment for his contempt of court.

[24] I accept that Molloy J. accurately concluded that the governing range of sentence for this type of crime is somewhere between two years and four years imprisonment, and that the actual sentence imposed upon any individual accused is dependent upon the factual circumstances of each case, and the various mitigating and aggravating features therein present. However, I see no significant difference in the present case that would justify a significant sentencing difference in this case, from the three-year term of imprisonment that was imposed by Molloy J. in that case. See: R. v. Omar, 2017 ONSC 1833, [2017] O.J. No. 1630, at paras. 21-26, 28-31, 33, 34-36, 43-47, 49-50, 51-59, affirmed: 2018 ONCA 599, [2018] O.J. No. 3528, at paras. 23-26, leave to appeal denied: [2018] S.C.C.A. No. 398. I must also note that this particular sentence (i.e. three years imprisonment) has also been consistently imposed by trial courts, or upheld by appellate courts, dealing with very similar factual circumstances. See also: R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, at paras. 1, 13; R. v. Elenezi, 2021 ONCA 834, [2021] O.J. No. 6504.

[25] This sentence of three years imprisonment is clearly within the appropriate range of sentence. Further, it is proportionate to the contempt of court committed by the accused, for deliberately refusing to follow my direct court orders, and it provides an effective measure of deterrence and denunciation.

[26] I decline to impose the somewhat longer term of imprisonment proposed by the Crown. The young accused has not yet committed himself to a life of crime, and his potential rehabilitation cannot now simply be jettisoned. He can still turn his life around, and he can become a positive, contributing member of society. In the future, once he is eventually released from custody, the accused can secure a meaningful job, earn an honest living, abandon his drug-dealing past, and enjoy a pro-social life as a husband and father. I am confident that he will continue to have the unwavering support of his family in this regard. The accused will have to realize, however, that if he continues his life on its present trajectory, committing serious criminal offences, he will simply spend the rest of his life in jail, effectively serving a life sentence on the instalment plan. Mr. Jogiyat must view the jury’s acquittal of him in the present case, as a second-chance opportunity to become a better man.

[27] I have not forgotten that the accused has yet to be sentenced for other serious criminal conduct, and has personally engaged in violent misconduct at least once while in jail at the Toronto East Detention Centre. But, those other offences cannot now be properly used to artificially inflate the sentence that would otherwise be appropriate for his contempt of court. The accused must realize that this kind of unlawful behaviour on his part must cease.

[28] I also decline to impose the somewhat shorter term of imprisonment proposed by defence counsel. While the accused has been in jail for a significant period of time, he has served no period of pre-sentence custody in connection this this citation for contempt of court, so his sentence cannot now be reduced to account for any potential jail time he has already served in connection with some other offence. Defence counsel has not suggested otherwise. Further, I cannot properly reduce the sentence to be imposed upon the accused in any way that might suggest that his contempt of court was justified – it was not. Indeed, in my view, a three-year term of imprisonment is required, in the interests of denunciation and deterrence, and to make it clear that his contempt of court was in no way justified. Again, defence counsel has not suggested otherwise.

E. Conclusion

[29] In the result, the accused is hereby sentenced to a three-year term of penitentiary imprisonment for his offence of contempt of court.

Kenneth L. Campbell J.

Released: June 3, 2024