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Reasons for Sentence – First Degree Murder (Youth)

Heard: September 23, 2024 and January 6, 2025
Oral decision given: January 7, 2025
Released: January 9, 2025

Counsel:
Matthew Geigen-Miller and Khorshid Rad, for the Crown
Michael Johnston, for the Accused

Presiding Judge: Rashid Somji

Overview

[1] The deceased, Omar Al-Khalidi, was sitting in the passenger side of a parked vehicle when the accused, A.D.S., brazenly fired a shot with a .50 calibre revolver at the vehicle, resulting in Omar Al-Khalidi’s death. The bullet went through the door, struck the deceased in the torso, and then travelled out the driver’s side door. The accused then ran and tossed the gun in a neighbouring yard. Surveillance footage captured the entire shooting, and the accused’s DNA was later found on the gun.

[2] Omar Al-Khalidi was 18 years of age at the time. His mother describes him as a beautiful and kind boy. He had his whole life ahead of him and planned to go to university and study economics. Omar Al-Khalidi was a beloved son to his father, Faris Al-Khalidi, and his mother, Manal El Nemer. He was a much-loved older brother to his three siblings, ages 11, 13, and 15. His murder, which was planned and deliberate, has devastated this family. His mother reports that when they go to his grave, his little sister digs the ground and places some chocolate or chips for Omar, a small and touching gesture in a little girl’s attempt to find comfort in a senseless and tragic death.

[3] The accused was two months shy of his 18th birthday at the time of the offence. He had no prior criminal record at the time of the offence. The accused has taken responsibility for his conduct and pled guilty to first degree murder. In this respect, he has at least spared the family the ordeal of a trial. The accused also indicated both in his pre-sentence report and in court that he is sorry for what he did. He states he is remorseful and that not a single day goes by when he does not think about his actions on that day. While I find the accused has failed to proffer any meaningful and logical explanation for why he did what he did either to the investigators or to this Court, I do accept that his apology is sincere and that he is remorseful for his conduct.

[4] Counsel for the accused and the Crown have presented a joint submission on sentence for the accused to serve the maximum sentence available under the Youth Criminal Justice Act, SC 2002, c 1 (“YCJA”), for first degree murder and that is a 10-year custody (6 years) and conditional supervision (4 years) order with some pre-trial credit. Crown and Defence also agree that the accused should not be entitled to the maximum amount of credit for pre-trial custody in these circumstances. Further details of the breakdown of the sentence are set out below.

[5] I note that should the Crown have opted and applied to have the accused sentenced as an adult, an option that was available given the accused’s age, he would have been facing life imprisonment in a federal penitentiary with no eligibility of parole for 25 years.

[6] There is no sentence that I impose that can compensate the deceased’s family for their loss. My task at this stage is to determine what is a fit and proportionate sentence for A.D.S., a young man himself. Having considered the accused’s early guilty plea, the absence of a prior criminal record, the accused’s expression of remorse, the circumstances of the offence and the offender, the principles of sentencing under the YCJA, and that this is a joint submission on sentence by the Crown and defence, I find the proposed maximum sentence of 10 years custody and conditional supervision with some, but not full, credit for pre-trial custody in the amount proposed is appropriate in the circumstances of this case.

Agreed Facts

[7] Pursuant to section 149(1) YCJA, the following facts are admitted by the accused:

1. On February 14, 2023, the young person A.D.S. intentionally shot and killed Omar Al-Khalidi. The killing was planned and deliberate.

2. At 5:38 pm, a Blueline Taxi was ordered by phone number 613-581-5922 to 1785 Russell Road, which is in the Russel Heights community housing complex. A taxi arrived at 5:46 pm. At 5:54 pm, A.D.S. entered the taxi. A.D.S.’s appearance was captured by the taxi’s onboard camera system. He was wearing a hoodie and a distinctive mask that covered the lower half of his face and was carrying a grey backpack. He was dropped off on Coronation Avenue near Station Boulevard, which is next to the north end of the Station Boulevard community housing complex. A.D.S. paid the taxi fare in cash.

3. At 6:02 pm, A.D.S. was captured on surveillance camera walking through the north parking lot of the Station Boulevard housing complex. A security camera captured his appearance. A.D.S. was wearing the same hoodie and distinctive mask, and carrying the same backpack. Still images from the security camera that captured A.D.S. walking through the north end of the Station Boulevard community housing complex at 6:05 pm were filed as part of the exhibit.

4. A.D.S. appeared on camera between 6:02 pm and 6:27 pm walking around the housing complex parking lot. He did not stop at a unit in the housing complex, visit, or communicate with anyone in the housing complex. He briefly left the Station Boulevard housing complex and walked along nearby Lindsay Street. During that time, at 6:18 pm, he was captured on door camera video at 365 Lindsay Street. A.D.S. walked up Lindsay Street and did not stop or visit with anyone on the street.

5. At around 6:27 pm, Omar Al-Khalidi arrived at the south parking lot of the Station Boulevard community housing complex. He was driven to the parking lot by a friend. Omar and another passenger exited the vehicle they arrived in, and that vehicle drove away. The other passenger walked away from the parking lot. Omar walked to a white Honda Civic that was parked in a visitor parking space. The white Honda Civic was driven by Hosea Semere. Mr. Semere drove the white Honda Civic to the parking lot at 6:25 pm and was sitting in the driver’s seat. Omar joined Mr. Semere and sat in the front passenger seat.

6. At 6:34 pm, A.D.S. approached the white Honda Civic from the passenger side, pointed a revolver, and fired a single shot at Mr. Al-Khalidi. The shooting was captured by a surveillance camera. The footage of the shooting was played in court and filed as an exhibit.

7. Hosea Semere immediately drove to the Ottawa General Hospital and brought Omar to the emergency department. Medical staff at the Ottawa General Hospital attempted but failed to save Omar’s life. The cause of death was a perforated gunshot wound of the torso. The mechanism of death was severe blood loss.

8. Immediately following the shooting, A.D.S. fled on foot toward Lindsay Street. He left the grey backpack in the parking lot. Residents of houses on Lindsay Street saw A.D.S. running up the street and into a backyard. One of those residents saw a gun in A.D.S.’s hand. He entered the backyard of a residential home, and he dropped his gun on the other side of a backyard fence (just inside the backyard of 333 Knox Crescent), and then fled back in the direction from which he came.

9. On February 20, 2023, A.D.S. returned to that same neighbourhood. He was seen by residents walking up and down Lindsay Street, searching for the handgun. He was unable to locate it. On that same day, he was arrested by members of the Ottawa Police Service with respect to the first degree murder of Omar Al-Khalidi.

10. Later that evening, a search team from the Ottawa Police Service located a Smith and Wesson .50 calibre revolver in the backyard of 333 Knox Crescent, which is where A.D.S. was seen on the night of the shooting. The handgun was located under some snow.

11. Photographs of the weapon were taken by forensic identification officer Deschamps and depict the handgun in the backyard of 333 Knox Crescent. The photos form part of the trial exhibits.

12. The handgun was swabbed by Forensic Identification Officer Barahona and the swab was submitted to the Centre of Forensic Sciences for DNA analysis. Forensic DNA analysis of the swab revealed that the handgun contained a DNA mixture that had three contributors, including at least one male.

13. Ottawa Police Service applied for and obtained a DNA warrant to take a DNA sample from A.D.S. The sample was submitted to the Centre of Forensic Sciences for DNA analysis. Forensic DNA analysis identified A.D.S. as one of the contributors to the DNA found on the handgun. The DNA results are estimated to be greater than one trillion times more likely if they originate from A.D.S. and two unknown people than if they originate from three unknown people unrelated to A.D.S.

14. A.D.S.’s birthday is on April 21, 2005. The shooting occurred approximately two months before his 18th birthday.

Principles of Sentencing under the Youth Criminal Justice Act

[8] The principles of sentencing governing youth are set out in s. 38 YCJA. I highlight some of the key principles set out in the legislation:

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[9] There are multiple aggravating factors in the circumstances of this case that I find warrant the proposed maximum sentence under the YCJA.

[10] First, the accused was solely responsible for killing the deceased and his conduct was planned and deliberate. As set out in the Agreed Statement of Facts, the accused was dressed wearing a mask covering his face and hoodie when he set out in a taxi toward the housing complex where the murder occurred. Upon arrival, he walked around the housing complex with his mask on and without any apparent purpose of visiting a friend or family member. About 30 minutes after his arrival in the area, the accused approached the parked car where the deceased was seated and fired a single shot from the revolver at an estimated distance of six feet from the vehicle. The accused did not shoot at the tires or the hood of the car, but directly at the passenger side of the vehicle which clearly demonstrates a targeted attack on the person inside the vehicle.

[11] Second, the accused has failed to proffer any meaningful explanation for his conduct. There is nothing in the Agreed Statement of Facts wherein the accused explains why he did what he did. The accused had no prior relationship with the deceased. I ordered a pre-sentence report (“PSR”) in this matter. During his interview, the accused told the probation officer that he was on intoxicants, that a car had pulled up to him earlier and a person had made a comment to him, and that later when he saw the car, he thought it was waiting for him. The accused suggests no one put him up to the killing and failed to explain how and why he had a gun. The only portion of his explanation I find even remotely reliable is that he was possibly under the influence of drugs at the time. The rest of his narrative does not accord with the facts agreed upon by him and supported by the surveillance footage filed.

[12] While I accept that the accused has pled guilty and is remorseful for his conduct, I find the absence of any meaningful explanation from him undermines his accountability and raises concerns about his level of insight into his own conduct. Having said this, I am also mindful that his mother identified concerns about the accused’s affiliation with gangs and discreditable people within the neighbourhood and that she, herself, has moved to Windsor, Ontario, to keep herself and the accused’s siblings safe from harm. In these circumstances, I am left to speculate whether the accused does not actually recall what transpired on the day of the murder because of the intoxicants he consumed or because he fears reprisal from gangs in the Ottawa community should he say more as to how he came to have a gun and why he targeted the deceased.

[13] Third, the accused’s conduct has resulted in the loss of life and immeasurable loss to the deceased’s family members. The deceased’s mother filed a victim impact statement about how the loss of the deceased impacted her and their family. She describes how grief has deteriorated her mental health, that she has been unable to maintain a job, and that her physical health has worsened because she stopped caring about anything including herself. She attached a beautiful picture of the deceased with his younger siblings that was taken at a birthday party and noted how difficult it has been for the family to adjust without him in their lives. She had planned a visit to Jordan with the deceased and the children in April 2023 to see family, but that trip did not materialize after his senseless killing.

[14] In sentencing the accused, I must also consider the personal circumstances of the offender, and as per the principles of the YCJA, and ensure that the sentence imposed on this youth will promote a sense of responsibility within him and serve to rehabilitate and reintegrate him into society.

[15] The accused was born in New York City on April 21, 2005. He later moved to Canada in 2011 when his parents separated. While he has maintained some contact with his father and the paternal family over the years, he was raised primarily by his mother in Canada. His mother explains that she did her best to raise him and his siblings as a single mother. When the accused was 15 years of age, his mother became concerned about his negative peer associations, defiance, and struggles at school. She sent the accused to Niger for 11 months to reside with his uncle and grandparents hoping it would assist him in reforming some of his behaviours, but things did not improve upon his return to Ottawa.

[16] The accused comes before the court as a first time criminal offender. While he did commit mischief and has since received a conditional discharge with one-day probation in the Ontario Court of Justice, he did not have a criminal record at the time of the offence.

[17] It is also clear from reviewing the PSR, that the accused was struggling with substance abuse starting in his early teens. The accused admitted that he had started experimenting with cannabis at the age of 13 and by the age of 15, he resorted to other drugs such as Molly, Xanax, cocaine, and Percocet’s. By the age of 16, he was consuming these drugs daily. He also stated to the probation officer preparing the PSR that he was under the influence of cocaine and Xanax at the time of the offence. In light of his drug history, the accused would benefit from substance abuse treatment and counselling.

[18] The PSR also reveals that the accused has been previously diagnosed with attention deficit hyperactivity disorder when he was in grade four or five. His school report card is mixed suggesting he was able to do well in school in some years and in some classes, but failed various other classes. On the other hand, since his detention in February 2023, the accused has completed high school, taken on additional course work (i.e. a high school accounting course), and demonstrated an eagerness to pursue post-secondary education.

[19] There are also various positive reports from correctional staff at the detention centre that: the accused has engaged in counselling and mental health services including anger management; that he has participated in sports; that he has engaged with both Muslim and Christian religious services; and that he has immersed himself in a host of other activities offered at the various detention centres where he has been residing. While there have been reports of his involvement in a few incidents and altercations involving other youths, there are also reports that he has presented himself as a leader and role model of his unit in other instances. On balance, I find the accused has demonstrated that he is motivated and responsive to getting help for himself.

[20] In addition, I have considered the letter dated October 10, 2024, from the Centre for Resilience and Social Development, a community based non-profit organization in the City of Ottawa that provides culturally responsive and holistic prevention services to immigrants, refugees, and marginalized youth and their families. The accused met with two outreach workers from this organization while in detention and he is presently enrolled in their skills-based group programs at the detention facility. The Centre reports that the accused has consistently demonstrated a positive attitude and a genuine commitment to self-improvement and to building a brighter future for himself. The Centre is prepared to continue working with the accused through the RAJO project.

[21] Notwithstanding the accused’s efforts at rehabilitation, given his past diagnoses, his mixed school record, his drug history, and the absence of a meaningful explanation for why he did what he did, I find the accused would benefit from a forensic psychiatric assessment which could prove beneficial in formulating a more precise rehabilitative plan for him as well as release conditions for the future. Such an assessment was not ordered in this case, but I understand that it could be available to him while in secure custody.

[22] Upon consideration of the circumstances of the offence and the offender, the aggravating and mitigating factors, and the sentencing principles of the YCJA which emphasize rehabilitation and reintegration of youth, I find that the proposed joint submission constitutes a fit and appropriate sentence in the circumstances of this case.

Order

[23] A.D.S., please stand up. You are ordered to serve a 10 year (3,650 days) custody and conditional supervision order pursuant to s. 42(2)(q)(i) YCJA with some credit for pre-trial custody. This would generally be a sentence of six years in custody followed by four years of conditional supervision in the community.

[24] Pre-trial custody under the YCJA is discretionary. An accused may receive up to 1:1 credit or no credit at all. In this case, I agree with your counsel and the Crown that to accord you full credit would result in a sentence that is of insufficient length to hold you fully accountable for your conduct. Consequently, I have given you credit for time you have spent in pre-trial custody since February 23, 2023, in the amount of 280 days as proposed by counsel and the Crown. This means that you are ordered to serve 3,370 days of secure custody and conditional supervision. When I apportion your pre-trial custody of 280 days against both the custodial portion (2/3) and supervisory portion (1/3) of your total sentence, it means that you are ordered to serve 2,022 days in secure custody (approximately 5.53 years) and 1,348 days (approximately 3.7 years) under conditional supervision within the community.

[25] In addition, as you have heard during the submissions in court, you will return before me or another judge of this Court at the end of the custodial portion of your sentence to determine what your conditions of supervision will be upon release into the community. Those release conditions will be influenced by the programming and rehabilitation work that you undertake while in secure custody and the recommendations of the correctional authorities as to what conditions are required to keep the community safe and to keep you on a rehabilitative path.

[26] In addition, you will be subject to the following ancillary orders:

a. a lifetime weapons prohibition pursuant to s. 51 YCJA;
b. a mandatory DNA Order pursuant to s. 487.051(1) of the Criminal Code;
c. an order prohibiting you to contact Manal Al Nemer, Faris Al-Khalidi, and any other member of Omar Al-Khalidi’s family pursuant to s. 743.21 of the Criminal Code; and
d. a forfeiture order pursuant to s. 42(2)(j) of the YCJA with respect to the firearm involved in this offence.

[27] Finally, I understand that you will be turning 20 in April 2025. As your counsel has advised you and as you have heard during submissions, at that time the Director may recommend that you be transferred from a youth facility to an adult institution. If such a recommendation is made, the Director may bring an application to this Court for determination of whether you should attend an adult provincial correctional institution or a federal penitentiary.

[28] The correctional authorities will receive a copy of my written decision and the exhibits filed in these proceedings so they can have an understanding of the circumstances of the offence and the offender as well as my reasons for sentence and any recommendations I have made.

[29] Should there be any discrepancy between my oral and written decision, the written decision will prevail.

Rashid Somji
Released: January 9, 2025