Ontario Superior Court of Justice

Court File No.: CR-24-20
Date of Judgment: 2025-05-21

BETWEEN:
His Majesty the King
and
Hussein Harb, Defendant

Appearances:
Katherine Cinerari, for the Crown
Charles Shortt, for the Defendant

Heard: January 31, 2025

Reasons for Sentence
R.E. Charney

Introduction

[1] On September 11, 2024, Hussein Harb was found guilty by a jury of:

a. Kidnapping Mohammad Algunaid with intent to cause him to be confined against his will, contrary to s. 279(1.1)(b) of the Criminal Code.

b. Without reasonable justification or excuse and with intent to obtain money, attempting to extort Mohammad Algunaid, contrary to s. 346(1.1)(b) of the Criminal Code of Canada.

[2] These offences occurred on April 17, 2022.

[3] Mr. Harb was found not guilty of assaulting Mohammad Algunaid and not guilty of threatening to cause death to Mr. Algunaid.

Facts Relating to the Offence

[4] The complainant, Mohammad Algunaid, was friends with Mr. Harb and two other persons, Janu Gulati and Ross Kozak. Mr. Algunaid was 24 years of age in 2022.

[5] Mr. Algunaid began trading in foreign currency in 2019 or 2020, and invested money for his friends, including Mr. Harb, Mr. Kozak and Mr. Gulati. Approximately $2,000 for Mr. Harb, $40,000 for Mr. Kozak, and $30,000 for Mr. Gulati. Altogether, Mr. Algunaid traded currency for about 10 to 15 of his close friends. He received their money in cash.

[6] In fact, Mr. Algunaid was running a Ponzi scheme, promising his friends large returns if they invested with him. On April 16, 2022, he owed his investors approximately $340,000.

[7] Mr. Algunaid began receiving death threats from an unknown person. He changed his cell phone number, and on April 17, 2022, he went to Barrie.

[8] While in Barrie, Mr. Algunaid was contacted by Mr. Gulati, who suggested that they see a movie together. After the movie, they both went to the washroom. Mr. Gulati remained in the washroom for about 20 minutes, and when he came out, he told Mr. Algunaid that they should go to his car in the parking lot.

[9] Mr. Algunaid testified that, once they were in the parking lot, Mr. Kozak appeared “out of nowhere”, came from behind him, attacked him and took his handbag. Mr. Kozak hit him twice in the ribs, put him on the ground and yelled at Mr. Algunaid to get into the car. Mr. Algunaid refused, and Mr. Kozak opened the back door of the car, hit Mr. Algunaid on the right side with his fist and put Mr. Algunaid in the back seat. Mr. Kozak closed the car door and told Mr. Algunaid that he would break his leg if he tried to leave the car.

[10] Mr. Harb was standing by the car and told Mr. Algunaid to just get inside the car. Mr. Harb got into the driver’s seat. Mr. Gulati got into the rear seat beside Mr. Algunaid. Mr. Kozak got into the front passenger side in front of Mr. Algunaid and told Mr. Harb to drive.

[11] After they drove about 10 meters, Mr. Kozak told Mr. Gulati that he could leave. Mr. Gulati got out of the car and had no further involvement in the incident.

[12] Mr. Harb did not say anything but drove them to an empty plaza a couple of minutes from the movie theatre.

[13] At that point, Mr. Kozak got out of the car and got Mr. Algunaid out of the car. Mr. Kozak tried to hit Mr. Algunaid over the head with a baton. Mr. Algunaid blocked him, and Mr. Kozak hit him on the left thigh with the baton. Mr. Kozak kept telling Mr. Algunaid to give him his money.

[14] Mr. Harb was just watching and said to Mr. Algunaid: just give him the money and let’s get out of here.

[15] As a result of being hit on the thigh with the baton, Mr. Algunaid was bruised for about a week, and was limping.

[16] Mr. Kozak then put Mr. Algunaid into the front seat of the car, removed the headrest, and started punching Mr. Algunaid on his left ear.

[17] Mr. Harb remained in the driver’s seat and told Mr. Algunaid to give Mr. Kozak some money and to “Try to work with us so we can end this right now”.

[18] They then heard police sirens and Mr. Harb drove away from the plaza and headed north on Hwy 400. Mr. Kozak was sitting behind Mr. Algunaid and hit Mr. Algunaid about 20–30 times and threatened to kill him unless he gave them money.

[19] Mr. Algunaid testified that all of his injuries were caused by Mr. Kozak.

[20] Mr. Kozak then called a friend to find out if their cottage was empty. He told Mr. Algunaid that they would take him to the cottage, kill him and bury his body at the cottage.

[21] At that point, Mr. Algunaid told Mr. Kozak and Mr. Harb that he had cash at his parents’ condominium in Mississauga. Mr. Harb told Mr. Kozak that they should go to the parents’ condominium to see if they could get the money they were owed.

[22] They got off the highway and went to an Esso station, where they parked the car for about 15 minutes. Mr. Kozak got out of the car to buy some juice for Mr. Algunaid, and then he bought some ice. Mr. Algunaid testified that the ice was for the swelling on his ear because Mr. Kozak did not want Mr. Algunaid’s ear to be swollen when they went to his parents’ condo.

[23] They left the Esso gas station and started driving south on Hwy 400. During the drive, Mr. Kozak was sitting behind Mr. Algunaid. He pulled out a pocketknife and threatened Mr. Algunaid with the knife. Mr. Kozak told Mr. Algunaid that he had been in prison for two years and was going to kill him.

[24] They stopped briefly at another gas station in Mississauga to get gas. Mr. Harb told Mr. Algunaid to give him money for the gas. Mr. Algunaid gave Mr. Harb $100 cash for the gas, Mr. Harb filled up the car, paid for the gas, returned to the car and gave Mr. Algunaid $30–40 dollars change.

[25] They then drove to Mr. Algunaid’s parents’ condo building. Before they entered the building, Mr. Kozak gave Mr. Algunaid back his handbag. Mr. Algunaid testified that Mr. Kozak told him to send his father a text message to come downstairs to meet them outside. But when the door opened Mr. Algunaid went inside, so Mr. Kozak and Mr. Harb followed him into the building.

[26] After they came into the lobby, they sat with Mr. Algunaid’s father on the couch in the lobby. Mr. Algunaid’s mother joined them a few minutes later. Mr. Kozak explained to Mr. Algunaid’s parents that they had made a contract with their son, their son owed them money, and that they came to collect the money. Mr. Harb showed the parents a copy of the contract on his iPhone. There is a video of their meeting in the lobby. At one point, Mr. Algunaid’s father appears to hit Mr. Algunaid on the back of the head. At another point, Mr. Algunaid’s mother appears to try to kick Mr. Algunaid’s feet. After about 30 minutes, Mr. Algunaid’s mother called the police, and Mr. Kozak and Mr. Harb left. They were not paid any money.

Position of the Parties

[27] The Crown seeks a custodial sentence of three years, less credit for pre-sentence custody. Mr. Harb was arrested on April 29, 2022, and released to house arrest on consent of the Crown on May 4, 2022, for a total of 4 days in custody. Mr. Harb is therefore entitled to pre-trial custody credit of 6 days.

[28] The Crown notes that the sentencing objectives of protection of the public, denunciation, and deterrence must be paramount when sentencing kidnappers. Three years is at the lower end of the range for kidnapping, which generally falls between 6 to 10 years for violent kidnapping, particularly if a firearm is involved: R. v. Freedland, 2019 ONSC 4324; R. v. Jazei, 2024 ONCJ 338, para 23, and cases reviewed at paras. 26–37. Sentences of less than two years are exceptional and generally reserved for persons with a minimal role in the kidnapping: R. v. Levy, 2024 ONSC 1454, para 33.

[29] The Defence submits that the total sentence should be an 18 month conditional sentence, taking into account Downes credit for house arrest. This position is based primarily on the parity principle, with reference to Mr. Kozak’s sentence for this offence.

Principles of Sentencing

[30] The objectives of sentencing have been codified in s. 718 of the Criminal Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and, promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[31] Section 718.1 provides that 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. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances. In reaching a fair and fit sentence I must consider the principles of totality and parity.

[32] The Courts have identified the following factors to consider the gravity of the offence of kidnapping:

a) the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim;
b) the extent to which there is planning and premeditation;
c) the length and conditions of the confinement;
d) the extent to which there is violence, torture or significant physical injuries;
e) whether third parties are threatened;
f) whether guns are used;
g) whether there is gang involvement;
h) whether the kidnapping occurs in the course of the commission of another offence; and
i) the circumstances in which the kidnapping ends.

(R. v. Brar, 2014 BCCA 175, at para. 23)

Mitigating Factors

[33] Mr. Harb is 38 years of age. He is a Canadian citizen and has no criminal record. He obtained his gas fitting licence in 2010, and has worked in that field until his arrest in April 2022. He has also worked in his family’s restaurant.

[34] Upon his release from pre-trial custody, he remained under strict house arrest for eight months. During this time, he was unable to work. After eight months, the terms were amended and he was permitted to travel directly to and from worksites, but confined to his residence at all other times. There is no suggestion that Mr. Harb violated these bail terms at any time.

Aggravating Factors

[35] The Crown points out that this was a case of “vigilante justice”. It was premeditated – Mr. Harb, Mr. Kozak and Mr. Gulati clearly planned to confront Mr. Algunaid in the movie theater parking lot, forcibly confine him, threaten him, and demand their money from him.

[36] The Crown points out that a knife was used by Mr. Kozak, and that Mr. Kozak threatened, assaulted and injured Mr. Algunaid during the offence.

[37] This kind of vigilante justice demands denunciation and a custodial sentence to act as a general deterrence to others who might want to take the law into their own hands.

Gravity of the Offence

[38] While not mitigating factors, but the absence of aggravating factors found in more serious kidnapping cases, I note that the length of confinement was short, the victim was released without police intervention, no firearm was used, the victim did not suffer any serious injury, and the kidnapping was not gang related.

[39] Also significant in considering the appropriate sentence in this case, Mr. Harb was found not guilty of assaulting Mr. Algunaid and not guilty of threatening to cause death to Mr. Algunaid.

Principle of Parity

[40] The most compelling argument for the defence is the principle of parity.

[41] Mr. Kozak pled guilty to assault, forcible confinement and uttering threats to cause death. He was sentenced, after a joint submission, to 15 months conditional sentence followed by 18 months probation, concurrent on all three offences. The terms of the house arrest were house arrest for the first 5 months, curfew for the next 5 months, and keep the peace for the last five months.

[42] Mr. Kozak also had no criminal record and had spent approximately one year under strict house arrest prior to his trial. Like Mr. Harb, Mr. Kozak was employed and, given the circumstances of this offence, is not likely to reoffend.

[43] In making the joint submission at Mr. Kozak’s sentencing, the Crown noted that the victim had “no significant injuries…which basically amounted to a number of bumps, bruises and abrasions”.

[44] As indicated above, all the injuries to Mr. Algunaid were caused by Mr. Kozak, none were caused by Mr. Harb.

[45] In accepting the joint submission, the Court stated:

I am going to go along with the joint submission. It has to be a sentence that sends a message, a general deterrence message and a denunciatory message given the gravity of this conduct, but I take into account the presentence custody of 9 days, which I am going to treat as equivalent of a 14-day jail sentence. I consider also and I place weight on the fact that you are on what I have been told is a house arrest bail for 11 months. In effect you have had your liberty restricted prior to today and that is a factor that I can and do consider. I find that taking that into account, I am able to find that the joint submission is within an appropriate range of sentence, even if it may be at the lower end.

[46] Mr. Gulati pled guilty to simple assault as a party and was given an absolute discharge (not a joint submission).

[47] In both cases the Crown elected to proceed summarily and prosecute the charge as a summary conviction offence.

[48] In both cases, the Court was heavily influenced by the guilty pleas and the expressions of remorse made by each accused, mitigating factors that are not present in this case.

Relative Culpability

[49] It is a fundamental sentencing principle that an offender should be given a sentence “similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”: R. v. Downes, 2015 ONCA 674. Accordingly, the sentences imposed on the other parties to the same criminal events will afford considerable guidance in determining the appropriate sentence for Mr. Harb.

[50] The parity principle “does not require that all co-accused be subject to the same sentence, or even that they be treated similarly for sentencing purposes… disparate sentences for different offenders, for the same offence, do not violate the parity principle so long as they are warranted by all the circumstances.”: R. v. Courtney, 2012 ONCA 478, at para. 12.

[51] In R. v. Brar, the British Columbia Court of Appeal stated, at paras. 30–31:

It is clearly not an error in principle to impose disparate sentences in kidnapping cases where the culpability of one offender differs from the culpability of another…

It is open to sentencing judges to view the actions of one accused as qualitatively different, and more or less egregious than the actions of co-accused engaged in the same common enterprise. It is for the trial judge to assess the relative culpability of the offenders…

[52] While Mr. Harb was complicit in and present throughout the entire offence, he played a subordinate role, and his level of culpability is much lower than Mr. Kozak’s. Mr. Harb was found not guilty of assault and not guilty of threatening Mr. Algunaid. The evidence at trial – from Mr. Algunaid – was that it was Mr. Kozak who assaulted him, injured him, and threatened to kill him. Mr. Harb was the driver and was primarily present to help Mr. Kozak retrieve his money.

[53] Indeed, Mr. Algunaid’s victim impact statement focuses primarily on the injuries caused by Mr. Kozak and the psychological affect of Mr. Kozak’s threats.

[54] Mr. Harb’s participation was still significant and it demands denunciation. Mr. Kozak pled guilty, and was able to negotiate a sentence at the lower end of the range. Mr. Harb does not have the significant mitigating factor of a guilty plea, and this will result in a somewhat higher sentence, notwithstanding his lesser role in the commission of the offence. But, in my view, the principle of parity does not permit me to sentence Mr. Harb to three years in the penitentiary while Mr. Kozak – the principal offender – received a 15 month conditional sentence.

Conditional Sentence

[55] Section 742.1 of the Criminal Code provides for a conditional sentence. The test has several elements: (1) the term of imprisonment must be less than two years; (2) service of the sentence in the community must not endanger the safety of the community; and (3) it must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[56] Denunciation and deterrence are paramount sentencing objectives in kidnapping cases. However, conditional sentences have both a denunciatory and deterrent effect, even where those objectives are paramount: R. v. Proulx, 2000 SCC 5, at paras. 41, 67; R. v. Wells, 2000 SCC 10, at para. 35; R. v. Ali, 2022 ONCA 736, at para. 27:

Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations.

[57] I am satisfied that the safety of the community would not be endangered by Mr. Harb serving his sentence in the community. He has been under some form of house arrest since his initial arrest in April 2022, and has complied with his bail conditions without incident. He has no prior criminal record, and given the circumstances of this offence, is not likely to reoffend.

Downes Credit

[58] In R. v. Downes, the Ontario Court of Appeal recognized that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance on sentence. While the amount of credit to be given for time spent on bail is within the discretion of the sentencing judge, a number of factors must be considered in the assessment. The Court did not adopt a rigid formula because there can be a wide variation in bail conditions.

[59] When an offender seeks credit for stringent bail conditions, the focus of the inquiry is on the impact of the conditions on the offender and whether they were punitive enough to be akin to punishment: R. v. Joseph, 2020 ONCA 733, at paras. 107–108; R. v. Schlaepfer, 2022 ONCA 566, at paras. 13, 20–21. The amount of credit to give is within the sentencing judge’s discretion.

[60] There is no mathematical way to calculate Downes “credit”, which is properly understood as a mitigating factor on sentence because stringent bail conditions are punitive and thus akin to custody. In assessing the appropriate weight of the mitigation to be given, factors to be considered include the amount of time spent on the bail conditions, the stringency of the conditions, their impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity: Joseph, at para. 108; R. v. Place, 2020 ONCA 546, at para. 2.

[61] A credit for any such time is not automatic and the cases recognize the reality that bail is not jail: R. v. Ijam, 2007 ONCA 597, at paras. 36 and 37. That said, in cases where a person suffers a significant restriction of liberty due to onerous bail conditions, some credit is appropriate. Again, the courts have been clear that there is no rigid or mathematical formula fixed for making this determination.

[62] In the present case, I have taken Mr. Harb’s eight months of strict house arrest into account in arriving at the length of his sentence. Mr. Harb has provided an affidavit describing the impact of house arrest, which prevented him from performing his job as a gas fitter which requires him to travel to different worksites across the province. He was also unable to assist his mother in running the family restaurant business. These restrictions were amended after eight months, and he was permitted to travel directly to and from work, but was confined to his residence for the rest of his time.

Conclusion

[63] Mr. Harb, please rise:

[64] I am satisfied that a strict and lengthy conditional sentence followed by a period of probation can meet the objectives of denunciation and deterrence and is appropriate in your case.

[65] I will therefore impose a conditional sentence of 18 months for both counts – kidnapping and extortion – to run concurrently. You will be given six days credit for the four days that you spent in custody before trial. Your conditional sentence will be followed by 18 months of probation.

[66] The terms of the conditional sentence shall be the following:

a. You are required to remain on house arrest for the first 9 months of the sentence, so you have to remain in your residence at all times, except for medical emergencies. Your six days credit will be deducted from this 9 month period, so the total house arrest period will be 8 months and 24 days.

b. Following that 8 month and 24 day period, there will be an exception for employment between the hours of 6:00 a.m. and 8:00 p.m. for the remaining 9 months.

[67] In addition, I impose the following ancillary orders:

a. Section 743.21 Order – no direct or indirect communication with Mr. Algunaid during the period of the conditional sentence.

b. DNA Order (primary on both kidnapping and extortion).

c. Section 109 weapons prohibition for five years.

[68] Following this conditional sentence will be an 18 month period of probation with the following conditions:

a. No contact with Mr. Algunaid.

b. Take such counselling as recommended and sign all consent forms so that your probation officer can supervise and monitor your progress.

c. Not to possess any substance prohibited or regulated by the Controlled Drugs and Substances Act unless it is prescribed by a medical practitioner.

d. Not to possess any weapons as defined by the Criminal Code.

Justice R.E. Charney
Released: May 21, 2025