Reasons for Sentence

Court File No.: CR-24-40000688-0000
Date: 2025-01-20
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Tafari Bezabeh and Justin Harker

Counsel:
Frank Schembri and Ovais Ahmad, Counsel for the Crown
Dirk Derstine and Jocelyn Heaton, Counsel for Tafari Bezabeh
Steven Stauffer and Kate Zadorozhnya, Counsel for Justin Harker

Heard: January 17, 2025
Released: January 20, 2025
Judge: M.A. Code

A. Overview and History of the Proceedings

[1] The two accused, Tafari Bezabeh and Justin Harker (hereinafter, Bezabeh and Harker) were charged with four offences in relation to two shooting incidents that occurred in Toronto on June 19, 2022. The first shooting took place on Amaranth Court. The victim, one David Joseph, was hit by three bullets and was seriously injured. However, he survived the shooting and was able to testify at trial. The second shooting took place on Lotherton Pathway, about ten minutes after the first shooting. The victim, one Jaron Williams, was hit by numerous bullets. He died at the scene due to multiple gunshot injuries.

[2] The Crown initially charged three offences in relation to the first shooting, namely, attempt murder, discharge a firearm with intent to wound, and aggravated assault. However, at the end of the trial and before charging the jury, the latter two counts were withdrawn. The one count of attempt murder was left to the jury. It was pleaded in a way that included the lesser offence of discharge a firearm with intent to wound. This included offence was also left to the jury. The second shooting was charged as first degree murder. The jury was also charged in relation to the lesser included offences of second degree murder and manslaughter. There were two main issues at trial: identity and party liability.

[3] The same stolen car, a Chevrolet Equinox, was used in both shootings. In the first shooting, on Amaranth Court, the car drove past the victim without stopping. Fifteen bullets were fired from one gun, which was pointed out the driver’s window. There were five occupants in the car at the time of the shooting, namely, a driver and four passengers (one passenger was in the front seat and three passengers were in the back seat). None of the five occupants emerged from the car during this first shooting. In the second shooting, on Lotherton Pathway, the driver stopped the car and three gunmen emerged (one from the front passenger door and two from the two rear passenger doors). Three different guns were used in this second shooting (including the gun used in the first shooting) and 28 shell casings were recovered from the scene.

[4] It was agreed that the Crown’s decision to join both shootings in a single Indictment was appropriate and there was no motion seeking severance of counts. In addition, by the end of the trial, it was agreed that evidence related to each shooting was relevant and admissible in relation to the other shooting, because the close connections in time, place, and circumstance between these two incidents inferred that the same perpetrators were likely involved. See: R. v. Simpson, 35 C.C.C. (2d) 337 at pp. 344-7 (Ont. C.A.); R. v. MRS, 2020 ONCA 667 at paras. 62-3.

[5] A number of pre-trial motions were heard in advance of the trial. Only two of these motions were contentious. One was brought by Bezabeh, challenging the sufficiency of the grounds for a search warrant. This motion was dismissed. See: R. v. Bezabeh, 2024 ONSC 6332. A second motion, brought by the Crown, sought the admission of certain extrinsic discreditable conduct evidence (mainly, digital images extracted from the accused’s cell phones depicting firearms possession before and after the two shootings). Some of this evidence was admitted and some was excluded on the basis of balancing probative worth and prejudicial effect. See: R. v. Bezabeh and Harker, 2024 ONSC 6597.

[6] Jury selection took place on November 19, 2024. It took one full day to select 14 jurors. The trial began the next day, on November 20, 2024. The Crown called 15 witnesses, including a great deal of video surveillance evidence depicting the two shootings and the relevant surrounding events, as well as the digital extraction evidence from the two accused’s cell phones. The Crown called its evidence over nine days and closed its case on December 2, 2024. All counsel are to be commended for the effective and efficient way in which this relatively complex body of evidence was presented to the jury. There were a significant number of admissions that shortened the Crown’s case. The cross-examinations were consistently focused on the two main issues. Counsel always communicated with each other in a professional manner. As a result, the trial proceeded smoothly and without interruption.

[7] The two accused called defence evidence from December 2nd to 5th, 2024, including two lengthy witnesses (the accused Harker and a co-accused, one A C-M, who had pleaded guilty to first degree murder and was awaiting sentence in Youth Justice Court). Once again, a number of admissions were negotiated between counsel and they significantly shortened the defence case.

[8] Counsel’s closing addresses were on December 9 and 10, 2024. I concluded the Charge to the Jury on the late morning of December 13, 2024. The jury deliberated for about one and a half days. On the late afternoon of December 14, 2024, the jury returned verdicts of guilty of attempt murder against both accused in relation to the Amaranth Court shooting and guilty of first degree murder against both accused in relation to the Lotherton Pathway shooting.

[9] Victim impact evidence and sentencing submissions were heard on January 17, 2025. I reserved judgement over the weekend and delivered these Reasons for Sentence on January 20, 2025.

B. Facts Relating to the Two Offences

[10] The evidence heard at trial is summarized at some length in the Charge to the Jury. This document was amended and finalized after input from counsel. Once the final amendments were made, a digital copy and written hard copies of the Charge were provided to the jury for use during their deliberations. There were no questions from the jury during their deliberations. That final version of the Charge was marked as an Exhibit and it is a public document. I adopt the more detailed summary of the trial evidence found in the written Charge (at pp. 150-234) for purposes of these Reasons for Sentence.

[11] I will briefly summarize the evidence at trial and the findings that were necessarily made by the jury in relation to the two convictions for attempt murder and first degree murder. I will also make any additional findings about the two offences on a standard of proof beyond reasonable doubt. See: R. v. Ferguson, 2008 SCC 6, 228 C.C.C. (3d) 385 (S.C.C.); R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79 at paras. 104-107 (Ont. C.A.); s. 724 of the Criminal Code.

[12] As explained above, the attempt murder of David Joseph on Amaranth Court was a “drive-by shooting”. There were undoubtedly five occupants in the stolen Chevrolet Equinox as it drove around the semi-circular cul de sac in the centre of an entirely residential social housing complex. David Joseph did not know the occupants of the car and they did not know him. He was simply a visitor in the neighbourhood, chatting outside with a female friend on a warm Father’s Day in June. The police seized 15 shell casings near the edge of the road, not far from where Joseph was standing and talking to his female friend. The video surveillance of the shooting shows that a gun was pointed out the driver’s window of the Chevrolet Equinox at this location where the shell casings were found. The 15 bullets were fired in rapid succession from an automatic handgun with a large over-capacity magazine. The video surveillance also shows that the Chevrolet Equinox had already driven into Amaranth Court once, circling the cul de sac where Joseph and his female friend were standing and talking. The vehicle then returned a second time, minutes later, and the shooting was carried out. In addition, the video surveillance shows that children and adult residents of the housing complex were walking on the sidewalks on this Sunday afternoon, shortly before the shooting. Finally, the forensic evidence collected by the police at the scene included bullets that struck the windows and doors of nearby homes and then entered a bedroom and a kitchen in these homes.

[13] The main issue at trial in relation to Bezabeh was identity, that is, whether he was one of the five occupants in the Chevrolet Equinox. Both Harker and A C-M testified that they had been with Bezabeh in both London and Toronto during the preceding days, and on the day of the shooting, but that Bezabeh had been dropped off somewhere in Toronto a few hours before the shooting. The jury’s verdict, finding Bezabeh guilty of attempt murder in relation to the shooting of David Joseph on Amaranth Court, necessarily means that the jury rejected this evidence. They must have been satisfied, based on the instructions they received and on the evidence at trial, that Bezabeh was one of the three passengers in the back seat of the vehicle and that he was aiding or abetting the gunman in the front seat “by being ready to assist if needed, or by attending in the vehicle with prior knowledge of a plan to carry out a shooting and thereby encouraging the principal by his knowing presence.” See: R. v. Dunlop and Sylvester, 47 C.C.C. (2d) 93 at pp. 106-110 (S.C.C.); R. v. Dixon, 122 C.C.C. (3d) 1 at paras. 40 and 49 (S.C.C.); R. v. Bezabeh and Harker, 2024 ONSC 6597 at paras. 37-39.

[14] The issues at trial in relation to Harker were somewhat more complicated. He admitted that he was the driver of the stolen Chevrolet Equinox, and there was compelling evidence to this effect relied on by the Crown. However, Harker denied that he was the gunman who fired at Joseph from the driver’s window of the vehicle. Both Harker and A C-M testified that the front seat passenger, one Jerry Lewis, was the gunman who leaned across in front of Harker and fired an automatic handgun out of the driver’s window. Both Harker and A C-M testified that Harker had no prior knowledge of a plan to carry out this shooting when he drove the Chevrolet Equinox back into Amaranth Court for the second time. The jury’s verdict necessarily means that they must have rejected the latter evidence concerning Harker’s lack of prior knowledge of the shooting. They must have been satisfied that Harker was either the principal who fired the handgun out the driver’s window, or that he knowingly aided Jerry Lewis by driving around the cul de sac for a second time while Lewis leaned across in front of Harker and fired the handgun out the driver’s window. There was evidence to support both of these versions of the events, they are both equally culpable (morally and legally), and I need not resolve the matter. See: R. v. Thatcher, 32 C.C.C. (3d) 481 (S.C.C.).

[15] Turning to the second shooting, now on Lotherton Pathway, the victim Jaron Williams was walking alone on the sidewalk. Once again, there was no suggestion that he knew any of the five occupants of the Chevrolet Equinox or that they knew him. The Chevrolet Equinox drove into this second nearby housing complex, about ten minutes after the Amaranth Court shooting, and came to a stop behind Jaron Williams. The three passenger doors opened as the vehicle slowed. Once it came to a stop, three passengers emerged from the three open doors. They were all armed with handguns, they all approached the victim, and they all fired at him from close range. Most of the 28 shell casings found at the scene were fired from the same automatic high capacity handgun used in the first shooting on Amaranth Court. It can be seen from the video surveillance of this shooting that the front seat passenger (allegedly Jerry Lewis, a federal parole violator who is still at large and who has not been arrested) fired a large number of bullets from an automatic handgun. The three gunmen returned to the Chevrolet Equinox after the shooting and the vehicle drove away at a high rate of speed.

[16] The main issue in relation to Bezabeh on this count of first degree murder was identity. Once again, Bezabeh’s position was that he was not present in the Chevrolet Equinox. The Crown alleged that Bezabeh was the armed passenger who emerged from the rear seat on the driver’s side and then fired a number of bullets at Jaron Williams. There was no dispute that the three gunmen were “acting in concert” and that they had the requisite intent for second degree murder. The jury’s verdict necessarily means that they were satisfied that Bezabeh was one of the three co-principals. A C-M was admittedly the gunman who also emerged from the rear seat but on the passenger side of the vehicle. As previously noted, he has pleaded guilty to first degree murder and is awaiting sentencing in Youth Justice Court.

[17] Harker’s position in relation to this second shooting was that he was a party to manslaughter but not to murder. His admission of manslaughter, made on his behalf during his counsel’s closing address, was based on the fact that Harker undoubtedly had knowledge of the shooting that had just occurred on Amaranth Court by the time he drove the Chevrolet Equinox to the scene of the second shooting some ten minutes later. In addition, he admitted in his testimony that he now knew that his front seat passenger (allegedly Jerry Lewis), was armed with a loaded handgun, that Lewis was telling him to drive to a second location, and that he was being told to stop behind a man walking alone on the sidewalk (all as explained in Harker’s testimony before the jury). However, he denied knowing that a second shooting was about to occur when he drove the Chevrolet Equinox to Lotherton Pathway and stopped behind Jaron Williams. In other words, he admitted that he knowingly aided a limited “unlawful act” that contributed to death, but without the requisite mental element for aiding murder. The jury’s verdict necessarily rejected Harker’s evidence on this point. The jurymust have been satisfied that Harker knowingly and intentionally aided one or all of the three co-principals in carrying out the murder of Jaron Williams on Lotherton Pathway when he drove them to the scene of this second shooting, slowed and stopped to let them out, waited until the murder had been carried out, and then drove them away from the scene.

[18] The verdict also necessarily indicates that the jury was satisfied of “planning and deliberation” because they convicted both Bezabeh and Harker of first degree murder in relation to the shooting of Jaron Williams. “Planning and deliberation” was the only basis for first degree murder that was left to the jury. In my view, the evidence of “planning and deliberation” in this case was strong. Indeed, it could be described as overwhelming evidence of “planning and deliberation”. That evidence related to events during the period before and after the June 19, 2022 murder. It was set out in ten bullet points in the written Charge to the Jury (at pp. 123-125). I would summarize it as follows:

• During the days leading up to June 18, 2022, Bezabeh, Harker, and A C-M (as well as a fourth co-accused, Jalen Campbell-Brown, who I severed on the eve of the present trial after he had discharged his lawyer) were all associating at a townhouse residence in London, Ontario. Video images from Bezabeh’s and Harker’s cell phones show that these four co-accused were in possession of a number of loaded handguns which they openly displayed and posed with in the videos;
• On June 18, 2022, the day before the two shootings, the above four-co-accused all left the London townhouse and travelled to Toronto in a black Ford Escape driven by Harker. This vehicle was properly registered and licensed;
• Once the four co-accused arrived in Toronto on the evening of June 18, 2022, they stayed together at an apartment on Jane Street. The next day, on June 19, 2022, they met up with a fifth co-perpetrator (allegedly Jerry Lewis) and arrangements were made to obtain a stolen vehicle that was parked at premises on Mulock Avenue;
• A number of steps were taken to obtain license plates by buying a socket set from a Dollarama store, by stealing license plates from a BMW parked behind the Dollarama store, and by putting these stolen license plates on the stolen Chevrolet Equinox parked at the premises on Mulock Avenue. The group of five young men now had two cars. The two cars drove away in tandem from Mulock Avenue with Harker driving the Chevrolet Equinox and Campbell-Brown driving the Ford Escape;
• After driving the two cars to a plaza on St. Clair Avenue West, the properly registered and licensed Ford Escape was left parked at the plaza and all five young men got into the stolen Chevrolet Equinox, with stolen license plates now affixed. This vehicle was then driven away from the plaza by Harker;
• The Chevrolet Equinox was driven into the housing complex on Amaranth Court. It circled the cul de sac, where David Joseph was standing and talking with his female friend, and the vehicle then exited the housing complex. After parking nearby for a few moments, Harker drove the Chevrolet Equinox back into the housing complex and circled the cul de sac for a second time. This is when the first shooting occurred. None of the five occupants got out of the vehicle during this shooting;
• The five occupants of the Chevrolet Equinox then proceeded to a second nearby housing complex. The vehicle arrived on Lotherton Pathway about ten minutes after the first shooting. Jaron Williams was walking alone on the sidewalk. This time the vehicle slowed and stopped as it approached Jaron Williams from behind. Three gunmen emerged from the vehicle at the same time and they all fired together at Jaron Williams from close range. They returned to the waiting Chevrolet Equinox and Harker drove the vehicle away at a high rate of speed;
• The five occupants of the Chevrolet Equinox all wore long-sleeved hoodies with hoods up. They were also wearing Covid masks. Gloves and additional clothing worn underneath their hoodies or pants could be seen in some cases. It was a warm day in mid-June 2022;
• After the second shooting, Harker drove the Chevrolet Equinox back to a side street near the plaza on St. Clair Avenue West. Campbell-Brown got out of the Chevrolet Equinox, walked to the Ford Escape parked at the plaza, and then drove the Ford Escape back to the side street where the Chevrolet Equinox was waiting. There were now four occupants in the Chevrolet Equinox and one occupant (the driver) in the Ford Escape. The two cars drove in tandem to a nearby residential street (Norval Street). The cars were then parked opposite each other on Norval Street by Harker and Campbell-Brown. Harker removed the stolen license plates and removed certain evidence from the Chevrolet Equinox. All four occupants of the Chevrolet Equinox joined Campbell-Brown in the Ford Escape. It was driven back to the London townhouse;
• Digital images from the two cell phones indicated that Bezabeh, Harker, and Campbell-Brown continued their apparently friendly ongoing relationship in London for a period of time after the two shootings, which could infer that they thought nothing had gone wrong during the two shootings. See: R. v. MacKinnon and Crooks; R. v. Poitras; R. v. Bezabeh and Harker, 2024 ONSC 6597 at para. 40.

[19] It can be seen that the above body of evidence inferring “planning and deliberation” relates to both shootings. I am satisfied beyond reasonable doubt that the two shootings were closely connected in time, place and circumstance, that they were committed by the same five co-perpetrators, and that they were the result of a single carefully planned operation. There was obviously a reason (or motive) for these two shootings. They were planned with a certain amount of professional preparation, by bringing in a number of gunmen from outside Toronto, by obtaining a stolen car and stolen license plates for the gunmen, by trying to protect or not expose the gunmen’s own “clean” car, and by abandoning the stolen car and hiding or destroying evidence before the gunmen fled Toronto in their own car. Although the Crown did not call any direct evidence of motive, it could be inferred as a matter of common sense that the reason for the two shootings related to some kind of grievance against the two housing complexes and their occupants.

[20] In this regard, I should mention that A C-M gave direct evidence of a reason (or motive) for the two shootings, when he testified during the defence case. There were many serious problems with A C-M’s credibility and reliability and much of his evidence about Harker’s and Bezabeh’s lack of involvement and lack of knowledge concerning the shootings was clearly rejected by the jury. Nevertheless, he testified that the grievance against the two housing complexes and their occupants related to the prior shooting of a close friend (one “BG”) on June 17, 2022. According to this account, A C-M (and Jerry Lewis) believed that the two housing complexes were “affiliated” with the killers who had shot “BG”. Shooting innocent persons in these two neighbourhoods was a form of “retaliation,” according to A C-M. There was also an admission that one Bryan Bernard was shot and killed in a certain Toronto neighbourhood on June 17, 2022, consistent with A C-M’s evidence on this point. The jury’s verdict of first degree murder in relation to the second shooting, on Lotherton Pathway, combined with my findings at para. 19 above, necessarily means that both accused had joined in a plan to carry out the shootings at the two housing complexes.

[21] The Crown filed a Victim Impact Statement from David Joseph. I can do no better than quote his own words as follows:

“I have been given a life sentence that I did not ask for. I have to live with the thought that I was almost killed that day, and I live with that memory every single day . . .

Physically I live with pain and discomfort every single day . . . I am operating at 40% or 50% compared to the person I was before, which was a healthy man . . .

The bullet went through the side of my face and my jawbone was broken . . . it is still very difficult for me to eat because I cannot open my mouth the way I used to be able to. My mouth had to be wired shut for a long time, and I was in the hospital for approximately three months . . . There was a gunshot to my left shoulder, and during the night I really feel the pain . . . I don’t sleep well anymore … I can no longer lift anything heavy . . .

When my physiotherapy finished, I had to pay for it along with my dentistry work and therapy. And I have been massively financially impacted due to having to pay out of pocket for dentistry and therapy. In total, I have had four or five surgeries . . . My life will never be the same, thanks to these individuals and the others who participated in this act of violence. We have a right to feel safe in cities and you stole that sense of safety from me that day.”

[22] Five Victim Impact Statements were filed from the family and friends of Jaron Williams. It is clear that he was a much loved and very positive member of his family and his community. His mother’s statement is particularly poignant, stating the following:

“Your horrendous and brutal attack on my son has destroyed me and has devastated his family and friends . . . Jaron was adored by everyone: his joyful spirit touched the lives of all he encountered with his genuine kindness, humour, and loving nature.

. . . I am not myself . . . inside I am completely shattered. The tremendous grief, the hurt, the pain, the sadness consumes me. My son Jaron was a shining light that lit up my world from the first day I laid eyes on him and held him in my arms. I promised to love him, I promised to guide him, I promised to always protect him, but now I feel like I failed him . . .

This overwhelming sense of guilt has taken over me, I feel so humiliated as a mother, that I wasn’t able to protect him as I promised to do . . . I just want my son back, I miss him so much . . . Jaron’s death has left me vulnerable and scared to face my life going forward. The constant fear to go outside to run a simple errand, the uneasiness, watching over my shoulder thinking could I be targeted, the fear and anxious feeling I get when cars are slowly driving by.”

C. Facts Relating to the Two Offenders

[23] Harker testified in his own defence and so a certain amount of evidence emerged at trial about his antecedents. It was summarized as follows in the Charge to the Jury (at p. 218):

Justin Harker is 23 years old. He was 20 at the time of the present offences. He has no criminal record. He grew up in Regent Park in Toronto. The last grade he completed in school was grade 8. He was given accommodations because of learning disabilities. He was rebellious and left home after grade 9. He did odd jobs and sold drugs in order to support himself. He moved around a lot but Toronto is still his home. It is where most of his family lives.

[24] At the sentencing hearing, two letters were filed from Harker’s parents and his cousin. The letters state that the Harker extended family is close, that his parents and cousin remain supportive of Harker, and that the present offences are out of character. The letter from his parents also confirms that Harker struggled in school. In this regard, he has been taking high school courses while in custody. He had no high school credits when he started but he has now completed 28 credits and is just two credits short of receiving his High School Diploma. His teacher describes him as a “very pleasant and motivated student.” He received high marks in his courses in 2024. He also completed a number of programs offered at the South Detention Centre. During submissions, counsel advised that Harker has a long-term girlfriend. She and her mother both attended court and both state that the present offences are out of character.

[25] Bezabeh did not testify at trial and no materials were filed on his behalf at the sentencing hearing. However, Ms. Heaton provided a detailed summary of Bezabeh’s antecedents during her sentencing submissions, based on her interviews with her client and his parents. She stated that Bezabeh was 19 at the time of the present offences. He is now 21. He has ongoing support from his parents and his sister, who visit him in jail every weekend and talk to him frequently on the phone. His father is from Ethiopia and his mother is from Kenya. They immigrated to the U.S.A., where Bezabeh was born. Shortly after his birth, his mother returned to Kenya where they lived until Bezabeh was age three. At that point, the family immigrated to Canada. At age six, a sister was born (Bezabeh’s only sibling). The four family members are all Canadian citizens. Bezabeh’s parents both work. His mother has a Master’s degree and she works in the Ontario civil service. His father has a college diploma and he works for a pharmaceutical company. Neither parent provided a letter or a written statement to the Court about their son, and they did not attend court, apparently due to their work.

[26] Counsel stated that Bezabeh was often alone at home, while he was growing up, because both parents worked. He struggled in school, particularly with reading. He loved playing soccer but his academic challenges made it difficult to pursue soccer at a competitive level. At age 15, he started to use drugs, both marijuana and Percocet. This further damaged his difficulties in school. When the pandemic arrived in 2020, Bezabeh was in grade 11. His school lessons went online and he dropped out without ever finishing high school. He also left home at this point and adopted a transient lifestyle, living with friends in Thunder Bay and Alberta. He became involved in the rap music community and he hoped to pursue a career in music. He also became exposed to guns through the gangster culture associated with certain kinds of rap music. There was considerable evidence at trial, including from Bezabeh’s own cell phone, about this interest in guns and rap music. Since his arrest, Bezabeh has had time to reflect and he has indicated that he wants to change.

[27] Neither accused made any statement to the Court at the end of the sentencing hearing.

D. The Positions of the Parties

[28] The Crown submits that the maximum sentence for attempt murder is appropriate in this case, namely, life imprisonment. In this regard, the Crown stresses the aggravating circumstances in the case. The Crown also seeks three ancillary Orders, namely, a s. 109 Order for life, a DNA Order, and an Order prohibiting communication with the families of the two victims. Finally, the Crown seeks the mandatory sentence for first degree murder, namely, life imprisonment with no parole eligibility for 25 years.

[29] Counsel for Bezabeh and Harker submit that the appropriate range of sentence in this case for attempt murder is 10 to 16 years and that this case falls towards the lower end of the range because of certain mitigating circumstances. Counsel for Bezabeh specifically submitted that 12 years was the appropriate sentence. Counsel do not oppose the three ancillary Orders or the mandatory sentence for first degree murder.

E. Analysis

[30] The principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s. 718.1.

[31] The mandatory minimum sentence for first degree murder, pursuant to s. 745(a), is life imprisonment with no parole eligibility for 25 years. Accordingly, the sentence for the Count One first degree murder convictions of both Bezabeh and Harker, relating to the Lotherton Pathway shooting, is life imprisonment with no parole eligibility for 25 years. Any sentence imposed for the Count Two attempt murder convictions of both Bezabeh and Harker, relating to the Amaranth Court shooting, must be concurrent to the Count One sentence. That is because s. 718.3, which permits consecutive sentences in some circumstances, has been interpreted (both before and after the Charter) as not applying to a life sentence. See: R. v. Sinclair, 6 C.C.C. (2d) 523 (Ont. C.A.); R. v. Bissonette, 2022 SCC 23, 414 C.C.C. (3d) 1 (S.C.C.).

[32] In my view, the mitigating circumstances relating to the Count Two attempt murder convictions include the following:

• First, Bezabeh and Harker are both young, that is, they were 19 and 21 years old at the time of the offence;
• Second, Bezabeh and Harker are both first offenders;
• Third, there is evidence that they both have some degree of family support;
• Fourth, there are some social context circumstances that relate to both moral culpability and rehabilitative prospects. Both Bezabeh and Harker struggled in school and dropped out. In Harker’s case, to his credit, he has been taking educational courses while in custody and has almost completed his High School Diploma. In Bezabeh’s case, he was a young Black male who was influenced by the gun culture that is prevalent in certain kinds of rap music and he has now given some indication that he wants to change;
• Fifth, they have both been in pre-trial custody in Toronto at a time when staffing shortages have led to lockdowns and harsh custodial conditions at the Toronto South and East Detention Centres.

[33] On the other hand, the aggravating circumstances in this case include the following:

• First, there was significant planning and deliberation that preceded both shootings. As set out above, the two shootings were a single closely connected ongoing transaction. The second shooting, at Lotherton Pathway, was a coordinated killing of Jaron Williams. It informs the earlier shooting at Amaranth Court, which almost killed David Joseph, and vice versa. Both shootings were an organized and relatively professional execution of a plan that was conceived by five parties, who were clearly acting “in concert” throughout;
• Second, the victim David Joseph was an entirely innocent visitor who was simply chatting with a female friend, outdoors in Amaranth Court on a warm Father’s Day. None of the five perpetrators knew him or had any prior interaction with him. He was targeted solely because of the time and place where he happened to be, that is, he was in a neighbourhood or housing complex that the five perpetrators had a grievance against and they saw him while they drove through. It is this kind of arbitrary attack on anyone and everyone in an entire community that particularly strikes at the public’s sense of safety;
• Third, the time and place of the shooting put others at risk. It was a Sunday afternoon in an entirely residential cul de sac. There were children and adults walking about on the street and the sidewalk and residents were in their homes. David Joseph’s female friend was standing beside him. She was directly in the line of fire and it is miraculous that she was not hit. Bullets struck some of the windows and doors of nearby houses and these bullets entered a bedroom and a kitchen. In other words, there was a complete disregard for public safety and other innocent lives were put at risk. See: R. v. Stojanovski, 2022 ONCA 63, 412 C.C.C. (3d) 62 at paras. 105-109 (Ont. C.A.);
• Fourth, a fully automatic handgun with a large overcapacity magazine was used in the shooting. Fifteen bullets were fired from this frightening weapon, apparently after only one or two pulls of the trigger. Access to this kind of weapon relates to the relative sophistication of this criminal enterprise. The use of this kind of unusually dangerous and completely illegal weapon significantly exacerbated the risk to the public and to the victim David Joseph;
• Fifth, the victim suffered permanent life altering injuries. As David Joseph explained in his trial testimony (where his ongoing challenges were apparent), and in his Victim Impact Statement at the time of sentencing, he was hit by three bullets. One bullet struck his shoulder and it still causes pain that interferes with his sleep at night and with his ability to work and exercise during the day. A second bullet went into his face and broke his jaw, which still interferes with his ability to eat and talk (as was apparent when he testified). And a third bullet left fragments in his head which cannot be removed because it would be too dangerous to operate in the area where they are located. He was hospitalized for three months. He had his jaw wired shut, he has had four or five surgeries, and he may have to have more surgeries. In addition, he no longer feels safe. He aptly described the totality of these consequences as a “life sentence” that has left him at 40% or 50% of his former self.

[34] Some of the above five mitigating circumstances are not strong. In particular, I cannot assess the degree or effectiveness of the family support because of the form and extent of this evidence. In any event, family support will become most relevant in twenty-five years time and it will have to be assessed by the Parole Board at that time. The social context evidence is also not strong, although Harker’s efforts to obtain his High School Diploma are commendable. In any event, these factors relating to rehabilitative potential and moral culpability carry little weight in serious cases like this, where denunciation, deterrence, and protection of the public are the most important sentencing values. See, e.g. R. v. Abdulle, 2023 ONCA 36, 422 C.C.C. (3d) 360 at paras. 36-40 (Ont. C.A.). Finally, the lockdown data and its specific effect in this case is difficult to assess. No evidence relating to this issue was called or filed by Bezabeh. Jail records were filed by Harker. They relate to the period from July 2022 until December 2024, a period that was well after the pandemic. More importantly, they indicate that the great majority of lockdowns relating to Harker were “partial” and there was no triple bunking. I am satisfied that jail conditions in Toronto have some mitigating effect in this case but, once again, it is not a strong factor. See: R. v. Marshall, 2021 ONCA 344; R. v. Shaikh and Tanoli, 2024 ONSC 774 at paras. 73-84.

[35] In the result, the only significant mitigating circumstances in this case are that Bezabeh and Harker are young first offenders. On the other hand, the five aggravating circumstances set out above are all strong and significant. It will be seen, when I turn to the case law relating to attempt murder sentencing, that these five aggravating factors are critically important in situating this case in the applicable range of sentence. I will now turn to that part of the analysis.

[36] The Crown relies on the following line of authority in support of its position that life imprisonment is the appropriate sentence. I will summarize the cases in chronological order:

• In R. v. Varga, 159 C.C.C. (3d) 502 at paras. 93-6 (Ont. C.A.), the Court upheld a sentence of life imprisonment for attempt murder imposed at trial by Blair J., as he then was. Doherty J.A. (Goudge and Simmons JJ.A. concurring) made two points that apply equally to the present case. In terms of Varga’s moral culpability, Doherty J.A. stated that, “He stands convicted of attempted murder rather than murder by pure luck. His culpability is hardly distinguishable from that of a murderer.” The same point was made in R. v. Logan, [1990] 2 SCR 731 at p. 743 where Lamer C.J.C. stated, “The attempted murderer is no less a killer than a murderer: he may be lucky . . . but he still has the same killer instinct . . . The usual penalty is very severe.” Also see: R. v. Forcillo, 2018 ONCA 402 at paras. 129-132. The second relevant point that emerges from Varga is that the attempt murder in that case was of a female bystander who was merely present during an altercation. She was shot immediately after Varga had shot two males, when a drug transaction at an apartment was going badly. Doherty J.A. stated the following: “the fact that the attempted murder arose out of the commission of other serious offences is a significantly aggravating factor.” Varga was a mature “professional criminal” who had just been released from the penitentiary. He was undoubtedly a worse offender than Bezabeh or Harker. However, the offence in Varga – a sudden collateral consequence of a dispute arising out of a drug deal – was much less serious than the offence in the present case because there was no planning and it did not deliberately target an entire neighbourhood or housing complex;

• In R. v. Jordan, [2005] O.J. No. 6487, the Court of Appeal upheld a life sentence for two counts of attempt murder imposed at trial by Nordheimer J. (as he then was). The Court of Appeal stressed that the offence was a “planned and deliberate act.” The facts of the case are set out in the trial judgement, R. v. Jordan, [2003] O.J. No. 6380. The accused was in the back seat of a car in a shopping mall parking lot. An acquaintance of his was in the front seat. When the driver got in, Jordan shot both of the other two occupants of the car. He then “walked calmly away from the scene”. The reason or motive for the shooting was not revealed. Both victims survived the shootings. Jordan was 21 years old at the time. He had two prior sets of convictions for “much less serious offences” that did not involve violence. Nordheimer J. stressed three aggravating factors that apply equally in the present case: Jordan fired “multiple times” using an “automatic handgun”; the shooting occurred “in the parking lot of a shopping plaza on a Friday evening” with “many other people” nearby who could have been hit by stray bullets; and finally, “the shootings were planned and deliberate acts.” Nordheimer J. concluded by emphasizing the need for “severe” sentences that “serve as a clear deterrent” in this kind of case. His concluding statement of principle applies equally in the present case (at para. 19):

The citizens of our community must be protected from individuals who choose to illegally possess weapons and, even more importantly, who choose to use those weapons, especially in such a premeditated and merciless manner. Individuals who choose to engage in such behaviour must be given the strongest possible message that such conduct simply will not be tolerated and, if it is committed, it will attract the severest of consequences. Severe consequences are also necessary to serve as a clear deterrent to others who might be inclined to engage in such conduct given the manifest danger that it poses for the lives and safety of other people. [Emphasis added].

• In R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264 (C.A.), the Court of Appeal upheld a life sentence for attempt murder that was also imposed at trial by Nordheimer J. (as he then was). The victim “was shot six times at point blank range in a parking lot in Scarborough” and was rendered a paraplegic. The accused knew the victim but the motive or reason for the shooting was unclear. It was described as “sudden, unprovoked, and unpredictable.” The accused Brown was a young first offender, like the two accused in the present case. The Court (O’Connor A.C.J.O, Cronk, and MacPherson JJ.A.) concluded their Reasons by emphasizing the need to protect the public from this kind of shooting and the need to deter “growing gun violence in Toronto”. In my view, this conclusion (at para. 33 O.A.C.) applies equally in the present case:

Finally, we reject the appellant’s claim that the sentence imposed was outside the applicable range of sentence for similar offences and offenders. The attempted murder in this case involved the use of a gun without warning in a public place where other citizens, including children, were present and at potential risk, in apparent retaliation for some minor slight. As this court has repeatedly said, the use of guns in public places in Toronto cries out for lengthy sentences. The trial judge took the serious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration. [Emphasis added].

• In R. v. Deeb, 2019 ONCA 101, 159 W.C.B. (2d) 292 (Ont. C.A.), the Court of Appeal upheld a life sentence imposed by Kelly J. at trial. The accused shot the victim three times at close range shortly after they got off a TTC bus “at a busy intersection in Toronto.” In her Reasons at trial (R. v. Deeb, 2013 ONSC 7870), Kelly J. stated that there had been an “altercation” between the accused and the victim in their neighbourhood five years prior to the shooting. This past grievance was the apparent reason for the shooting, which rendered the victim a quadriplegic. The accused Deeb was 21 years old. He had a prior Y.C.J.A. record for robbery, assault, and carrying a concealed weapon, resulting in short sentences. He was on bail at the time of the attempt murder. Kelly J. relied heavily on Jordan and Brown and stressed two aggravating factors that apply equally in the present case: first, “there were a number of people in the area . . . innocent persons could have been injured or killed”; and second, “the shooting was planned”. She concluded by stating: “Gun violence is rampant in the City of Toronto and such violence continues to escalate . . . The public must be protected from Mr. Deeb and it must be demonstrated to other like-minded individuals that resorting to the use of firearms in broad daylight in a Toronto city street will not be tolerated. Such violence to innocent Torontonians must be stopped.” On appeal, the Court (Feldman, Trotter, and Zarnett JJ.A.) upheld the sentence and expressly reaffirmed the principle in Brown in the following terms (at para. 17):

As was the case in R. v. Brown (2009), 2009 ONCA 563, 251 O.A.C. 264 (Ont. C.A.), at para. 30, in which a life sentence was imposed, this was an unprovoked attempted murder involving the use of a gun in a busy, public place, drastically altering Mr. Kay’s life which the appellant intended to end. As noted in Brown, the serious concern of growing gun violence in Toronto is a legitimate consideration, and one the trial judge properly took into account. Accordingly, we grant leave to appeal sentence but dismiss the sentence appeal. [Emphasis added].

• Finally, the Crown noted two recent decisions where 18 year sentences for attempt murder were imposed by members of this Court. In both cases, the significant aggravating factors of “planning and deliberation” and deliberate targeting of an entire neighbourhood, that exist in the present case, were absent. In R. v. Stojanovski, 2022 ONCA 63, 412 C.C.C. (3d) 62, the Court of Appeal upheld an 18 year sentence imposed at trial by Dunnet J. (2018 ONSC 4243). The shooting in that case arose out of a drug transaction that led to a “verbal altercation [that] turned into a physical fight” and that finally escalated into a shooting. In these circumstances, there was no suggestion of organized planning and premeditation or of targeting anyone present in a certain neighbourhood. Many of the other aggravating factors in the present case also existed in Stojanovski (see paras. 105-109) and the Court of Appeal reaffirmed (at para. 114) the need “to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms, particularly in the Toronto area”, citing R. v. Danvers, 199 C.C.C. (3d) 490 at paras. 77-8 (Ont. C.A.) and R. v. Brown, supra. In the second case, R. v. Kerr et al, 2023 ONSC 3892, Schreck J. imposed an 18 year sentence for attempt murder. The facts were very different from the present case but Schreck J. noted that a life sentence could have been justified if there had been “planning and deliberation” relating to the attempt murder in Kerr. He stated (at para. 56):

The facts of this case bear significant similarity to the facts in Pan, where, in upholding a life sentence for attempted murder, the court noted at para. 150 that the circumstances included “a crime of terrifying violence,” a “murder for hire,” an offence facilitated by a person the victim trusted and which took place in the family home and where the victim’s survival was pure chance. All of those circumstances exist in this case. The only difference is that the unsuccessful murder of the victim in Pan was planned and deliberate while the attempted murder in this case was not. Planning and deliberation is, of course, a significant aggravating factor, which is evident from the different sentences imposed for first and second degree murder. [Emphasis added].

The 18 year sentences in Stojanovski and Kerr suggest that a longer sentence should be imposed in the present case where the aggravating factors of significant planning and premeditation and targeting an entire neighbourhood both exist.

[37] The defence, on the other hand, relies on a competing line of authority where sentences in the range of 10 to 16 years have been imposed. The main cases in that line of authorities can be summarized as follows:

• In R. v. Tan, 2008 ONCA 574, the Court upheld a 15 year sentence for attempt murder after a defence appeal. The case bears no resemblance to the present case. The accused entered an early guilty plea in the Ontario Court of Justice, and so the victim never had to testify. The accused was a first offender and he expressed remorse in a written statement to the Court on sentencing. The Crown sought a 15 year sentence and the defence did not oppose this length of sentence. The accused and the victim knew each other. When he asked to become her boyfriend she rejected his proposal. This made him angry and led to the attempt murder, which involved stabbing her twice with a knife and leaving her to die in a remote location. The offence was extremely serious, involving “elements of planning and deliberation” and “serious physical and psychological injuries” that were “likely permanent,” as Laskin J.A. put it. However, the mitigating circumstances were also strong, in particular, the early guilty plea and the apparently genuine remorse by a first offender. In my view, the sentence in Tan suggests that the sentence in the present case should be longer than 15 years;

• R. v. Small, 2023 ONSC 6841 bears some superficial resemblance to the present case because it was a “brazen shooting in a public place”, namely, a shopping mall. An unintended victim was hit by one bullet when the accused fired five shots from his car. This victim died and his shooting led to a charge of first degree murder. However, in this case of transferred intent in relation to an unintended victim who was killed by a single shot, the jury returned a verdict of second degree murder. The intended target of the shooting, who was not hit by any of the five bullets, provided the basis for the attempt murder conviction. When it came to sentencing, the Crown’s theory of “planning and deliberation” had clearly been rejected as the jury found that Small was not guilty of first degree murder. The trial judge also declined to make any finding of “planning” alone. Equally importantly, the target of this apparently spontaneous shooting suffered no injuries, he was armed with a handgun, he was an admitted gang member, and the accused had good reason to fear him because of a number of prior shootings. Finally, the accused had a prior criminal record but he entered partial guilty pleas on arraignment, he had a reasonable educational and employment background, and he was described as a “good father” who had been a “respected member of the community” prior to the shooting. In all these circumstances, Schreck J. imposed a sentence of 12 years for attempt murder, concurrent to the life sentence for second degree murder. In my view, the sentence in the present case must be longer than the 12 year sentence in Small;

• In R. v. Guedez-Infante, 2009 ONCA 739, the Court of Appeal upheld a 10 year sentence for attempt murder, after a defence appeal. It is a short two page endorsement, with one paragraph addressing and dismissing the sentence appeal. As a result, the facts of the case are only set out briefly. It appears that the shooting took place in a bar after a dispute of some kind. It also appears that a single shot was fired at the victim’s abdomen. The victim testified that he was “unsure whether the shooter intended to kill him or whether the shooting was accidental.” There was some evidence of intoxication and the accused was a young first offender. In my view, Guedez-Infante is of no assistance in the present case;

• R. v. Thompson, 2009 ONCA 243, 95 O.R. (3d) 469 (C.A.) is another case where the Reasons briefly address and dismiss a defence sentence appeal in one paragraph. The Court of Appeal upheld a 12 year sentence imposed at trial. It appears that the victim and the accused were friends. They arranged to meet in the parking lot of a plaza, apparently in relation to a drug transaction. The accused shot the victim twice. The Court did not call on the Crown on the sentence appeal, describing the attempt murder as “a very serious shooting, with a handgun, planned in advance and committed in a public place by an individual with a lengthy criminal record.” In my view, the facts of the case bear little or no resemblance to the present case and it is of no assistance;

• In R. v. Hernandez-Viera, 2022 ONSC 3776, Schreck J. imposed an 11 year sentence for attempt murder (before deducting various credits). The accused was in possession of a loaded handgun and he waited for and then shot the victim in the parking lot of an apartment building. The reasons for the shooting were unknown. However, the shooting was “clearly planned”. The accused and the victim “had been friends but had fallen out a few months prior to the shooting.” The victim was struck in the abdomen and foot, resulting in nerve damage and PTSD. The accused was 22 years old at the time. He had a difficult upbringing that included exposure to violence and some experience of anti-Hispanic systemic racism. He had a criminal record with two entries, for robbery and possession of a firearm and for use of an imitation firearm. He was on probation for these offences at the time of the attempt murder. There was evidence before the trial judge that provided a “glimmer of hope” for the accused’s rehabilitative potential. However, the trial judge also concluded that the accused “poses a significant and increasing threat to public safety.” In concluding that 11 years was the appropriate sentence (at paras. 27-32), the trial judge made no reference to and conducted no analysis of the line of authority relied on by the Crown in the present case (set out above). I assume that these authorities were not brought to the trial judge’s attention. In addition, the trial judge stated (at para. 23) that, “It is important not to treat the sentencing objective of rehabilitation as something that benefits only the offender and which is therefore of less importance in cases involving serious offences, where the objectives of denunciation and deterrence are paramount” [Emphasis added]. I do not believe this is a correct statement of law, as rehabilitation is “of less importance” in serious cases of violence like this one. See: R. v. Tan, supra at paras. 30-32; R. v. Priest, 110 C.C.C. (3d) 289 at 294-5 (Ont. C.A.); R. v. Hamilton, 186 C.C.C. (3d) 129 at paras. 139-140 (Ont. C.A.); R. v. Abdulle, supra at paras. 39-40. In my view, Hernandez-Viera is a different case from the present one. In particular, it lacks the element of arbitrarily threatening the safety of an entire neighbourhood. For all the reasons set out above, it is of little or no assistance in the present case;

• Finally, in R. v. Abdullahi, 2022 ONSC 543, Forestell J. imposed a 14 year sentence for attempt murder. This was a very serious shooting that put the public at risk on a downtown street in Toronto. However, the case is clearly distinguishable from the present case. The accused was a 23 year old first offender at the time. He pleaded guilty. He expressed remorse in a thorough enhanced PSR and in a statement to the Court. As a Black male immigrant child growing up in the Jane Street neighbourhood of Toronto he was exposed to criminal activity, which became “normalized”, and to systemic racism. He was diagnosed with epilepsy and began having seizures. He regularly used alcohol and Percocet. The offence arose suddenly from a dispute between two groups of strangers who encountered each other on the street. It began with shoving and slapping and then escalated into the shooting. There may have been some elements of fear and self-defence present. It can be seen that the case lacks any of the evidence of planning and premeditation and of arbitrarily attacking an entire neighbourhood, as in the present case. Most importantly, it is well known that those accused on the backlogged long trial list, who negotiate guilty pleas before the Criminal Trial Team Leaders, like Justice Forestell, are granted significant mitigation, especially where the guilty plea appears to be accompanied by sincere remorse. In my view, the 14 year sentence in Abdullahi indicates that a longer sentence is justified in the present case.

[38] There was one additional issue, raised by the defence, that I should address. It was submitted that Bezabeh and Harker were aiders or abettors in the attempt murder on Amaranth Court, and not principals, and that their moral culpability was reduced in comparison to a principal like Jerry Lewis. A closely related submission was that Jerry Lewis was the older more sophisticated leader of the group and that Bezabeh and Harker were just followers.

[39] I agree that aiders or abettors are sometimes treated as less morally culpable than principals. Similarly, followers are sometimes treated as less morally culpable than leaders. However, there are a number of impediments to this submission in the present case. Most importantly, the jury concluded that “planning and deliberation” had been proved. It is conceded that I can find that the evidence of “planning and deliberation” applies to both shootings and that they were a single ongoing transaction. I have made those findings beyond reasonable doubt. As a result, Bezabeh and Harker adhered to the plan to carry out these two shootings, they were involved in the course of planning and preparation that led up to the shootings, and they were acting “in concert” with the others throughout. As a result, the law is clear that “the act of one is the act of all of them.” See: R. v. Mena, 34 C.C.C. (3d) 304 at 313-317 (Ont. C.A.); R. v. McMaster, 105 C.C.C. (3d) 193 at para. 33 (S.C.C.); R. v. Pickton, 2010 SCC 32, 257 C.C.C. (3d) 296 at paras. 63-69 (S.C.C.); R. v. Ball, 2011 BCCA 11, 267 C.C.C. (3d) 532 at paras. 21-30 (B.C.C.A). Significantly, Bezabeh was found by the jury to be a principal in the murder on Lotherton Pathway, which occurred ten minutes after the attempt murder on Amaranth Court. This circumstance gives rise to a strong inference about his moral culpability throughout and about his adherence to the plan to act “in concert” with the others in relation to the shootings. Finally, the submission that Jerry Lewis was the fifth member of the group and that he was the leader, depends heavily on the evidence of Harker and A C-M. Their evidence was clearly rejected by the jury in relation to the central issue of Bezabeh’s and Harker’s involvement in the two shootings and their knowledge of the plan to carry out the two shootings. I am not prepared to make findings on the present trial record, even on a balance of probabilities, that Jerry Lewis was the fifth member of the group and that he was the leader.

[40] In conclusion, I am satisfied that the line of authority relied on by the Crown (summarized above) sets out a persuasive basis for imposing a life sentence for attempt murder in this case. The authorities relied on by the defence that suggest a shorter sentence are easily distinguishable (as summarized above). In my view, the five strong aggravating factors in this case require a life sentence for the attempt murder on Amaranth Court. The need to deter and denounce this kind of extraordinary dangerous shooting, that puts the public at risk of arbitrary execution simply for being present in a certain neighbourhood, requires the maximum sentence. The Court of Appeal upheld this principle in Brown, even for a young first offender, and the Court has reiterated the principle in subsequent cases like Deeb. In my view, exemplary sentences are required to deter and denounce, and to protect the public from, the dangerous rise of gun violence in public places in Toronto.

F. Conclusion

[41] For all these reasons, the sentence imposed on Count One is life imprisonment with no eligibility for parole until 25 years of the sentence has been served. The sentence imposed on Count Two is life imprisonment, concurrent to the sentence on Count One.

[42] I would like to thank all counsel for their excellent work throughout these proceedings.

M.A. Code
Released: January 20, 2025