R. v. Hassan, 2023 BCSC 1876

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hassan, 2023 BCSC 1876 Date: 20231004 Docket: 32055-1; 32055-10 Registry: Vancouver Rex v. Duncan Howard Bailey, Liban Hassan and Ahmed Ismail Before: The Honourable Mr. Justice Crossin Oral Reasons for Sentence Re Accused Liban Hassan and Ahmed Ismail Counsel for the Crown: K. Andani, K.C. L. Pearce Counsel for the Accused, Liban Hassan: A. Willox Counsel for the Accused, Ahmed Ismail: C. Johnson, K.C. T. Armstrong Place and Date of Hearing: Vancouver, B.C. October 3, 2023 Place and Date of Judgment: Vancouver, B.C.

October 4, 2023 [ 1 ] THE COURT: The accused have both pled guilty to one count of attempted murder. In particular, that on or about October 6, 2020, in Vancouver, B.C., both accused, using a firearm, did attempt to commit the murder of Mir Aali Hussain, contrary to s. 239(1) (a.1) of the Criminal Code , R.S.C. 1985, c. C-46 . [ 2 ] The Crown and defence have made a joint submission regarding a fit and appropriate sentence in this matter. It is proposed a term of incarceration be imposed of 10 years, less credit for the time that both offenders have spent in custody.

In addition certain ancillary orders of both a discretionary and mandatory nature are proposed. [ 3 ] A joint submission, of course, triggers the guidance provided by the Supreme Court of Canada in the seminal case of R. v. Anthony-Cook , 2016 SCC 43 .

In that case, Justice Moldaver for the court set out the approach to be taken by a trial court in hearing and considering a joint submission, and in that regard, the court commented as follows: [32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean?

Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. [33] In Druken , at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”.

And, as stated by the same court … when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”. And finally: [40] In addition to the many benefits that joint submissions offer to participants in the criminal justice system, they play a vital role in contributing to the administration of justice at large. The prospect of a joint submission that carries with it a high degree of certainty encourages accused persons to enter a plea of guilty.

And guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventually collapse under its own weight. [ 4 ] I approach the task at hand with these comments in mind. [ 5 ] The circumstances of the offence at bar are, in a word, horrific. Mr. Hassan and Mr.

Ismail were contracted by others to travel to Vancouver to kill or kidnap the victim in this case, Mr. Hussain. It appears from the agreed statement of facts filed by the parties in this matter that the moving force behind the plot to kill or kidnap Mr. Hussain is now deceased.

[ 6 ] The planning and deliberation targeting Mr. Hussain was conveniently memorialized in exquisite detail, by all participants in the scheme, in hundreds of text messages retrieved from phones during the investigation. [ 7 ] The victim appeared to be targeted as a consequence of some kind of turf war between rival gangs in the Lower Mainland in relation to the drug trade. [ 8 ] Mr. Hassan and Mr. Ismail were to be paid $150,000 for the task. They both arrived in Vancouver a week or two before the attempted murder. The offenders secured masks and other paraphernalia.

They secured a getaway vehicle, a Jeep Cherokee, and two firearms: 1) a .45 Glock Model 30 semiautomatic pistol armed Mr. Ismail; and 2) a 9mm polymer 80 semiautomatic pistol, was provided to Mr. Hassan. [ 9 ] Eventually the participants, having tracked the comings and goings of the victim and his family, settled on killing Mr. Hussain as he left a restaurant near the intersection of West 29th Avenue and Dunbar Street in Vancouver at approximately 6:00 p.m. There is video evidence of Mr. Hussain walking west on 29th Avenue after dinner. He is carrying his six-month-old baby in a car seat.

Slightly behind, his wife follows with their three-year-old child. The video depicts a busy neighbourhood with cars coming and going and persons riding bicycles on West 29th Avenue. It is in the vicinity of the usual neighbourhood fixtures, including commercial and residential housing and a daycare centre, all in the location of the shooting. [ 10 ] The video does not depict the shooting, but shortly after the victim and his family leave the frame of the video, shots ring out, nine in all, in rapid succession. Mr. Ismail and Mr. Hassan had apparently alighted from their vehicle dressed in black and masked.

It appears, from the submissions, the victim began to flee. He was hit twice: once in the hip, once in the leg. Mr. Ismail fired eight shots. Mr. Hassan managed to get off one shot before his gun jammed. [ 11 ] The shooters then attempted to escape the scene. Mr. Ismail took the wheel of the Jeep. Mr. Hassan was in the passenger seat, but almost immediately fell out onto the street and then attempted to escape on foot. Mr. Ismail carried on and soon ran the Jeep into a parked car.

Adding to this haplessness, as it happens, two unmarked police vehicles were in the immediate location responding to an unrelated matter. Mr. Ismail and Mr. Hassan were quickly captured, leaving a trail of incriminating evidence in their wake. [ 12 ] It was determined that aside from hitting the victim twice, bullets were found in the wall of the public library, a number of vehicles parked on the street, and a fence of a residence in the neighbourhood. Perhaps not surprisingly, given these circumstances, both Mr. Ismail and Mr.

Hassan gave early indications that a resolution short of a trial was entirely realistic. [ 13 ] Mr. Ismail is currently 27 years of age. He was born in Somalia, the eldest of six children. His family fled war-torn Somalia and arrived in Eastern Canada when Mr. Ismail was six years of age. While Mr. Ismail was part of a family that faced adversity in arriving in Canada, Mr. Ismail did very well in school and in fact began attendance in post-secondary education on a basketball scholarship.

Unfortunately, while his future looked perhaps brighter than he might have imagined, it quickly dissipated into a life of drugs and alcohol. He abandoned education. He was charged and convicted for an attempted robbery that was committed in 2015. He was then 19. That said, this is the extent of his criminal record. [ 14 ] The delay in dealing with this case was due in large

part in order to accommodate the preparation of an assessment addressing the impact of race and culture concerning these individuals and the matters before the court. The assessment was indeed prepared on behalf of Mr. Ismail, but it is not before the court. This is the choice of Mr. Ismail. I am told his parents, that would surely be the most fertile source of information, refused to participate, citing extreme discomfort in disclosing what no doubt would be sensitive information, intruding on the privacy of their family history and dynamic. [ 15 ] Certain information, however, was disclosed to the court.

It paints the picture of a young man that was, and perhaps is, navigating life infused with conscious or unconscious racism. In this context, for many years the courts in this country have been in the position to take judicial notice of the toxic aftermath of our residential school system and the emotional and physical generational human wreckage it has left in its wake concerning the Indigenous citizens in this province. I have not had the benefit of the assessment, but I cannot but conclude Mr. Ismail has been impacted by seen and unseen cultural toxicity.

However, an individualized assessment of this issue is of course not now possible. In any event, the fact remains, he was an honour student with a basketball scholarship and now, only a few years later, this. [ 16 ] Mr. Hassan shares a background of some similarity to Mr. Ismail. Mr. Hassan is older, now 38 years of age. Mr. Hassan was born in Saudi Arabia of Somalian parents who had also fled Somalia. The family arrived in North America when Mr. Hassan was a child, living in various locations in the U.S., finally settling in Ottawa in the early 1990s. They arrived in poverty with refugee status.

There is little information concerning the life of Mr. Hassan that has led him to this point. His family life was not particularly nurturing, his employment sporadic and his drug use and criminal activity defined him for a period. He has a more extensive record than Mr. Ismail, although like Mr. Ismail, not a criminal background that would signal graduating to agreeing to commit first-degree murder. [ 17 ] He, as well, has in hand an assessment. It is not before me. Why it is not before me is not entirely clear, at least to me. What is clear, however, is that Mr.

Hassan maintains the support and hopes of his family, his parents, cousin, and siblings. They speak highly of a man that still mystifies them as to why he took this turn. [ 18 ] The aggravating features are many, the mitigating features few. It is agreed the aggravating features are common to both. The crime was planned and deliberate and carried out for financial gain. Numerous shots were fired in circumstances where innocent bystanders, including small children, were clearly in harm's way.

They were both masked and using firearms that were restricted and prohibited, and in circumstances where both offenders were prohibited from possessing firearms. Both had criminal records, although the more aggravating record was that of Mr. Hassan. Indeed, Mr. Hassan was under the terms of a bail order when he committed these offences. [ 19 ] The backgrounds of both accused mitigate the circumstances somewhat, as does the early indication of guilty pleas. This can be seen, and I find is seen in this case, as an indication of remorse and acceptance of responsibility.

This in turn reveals some light on a rehabilitative path. I am bolstered in this view by what I conclude was a genuine expression of remorse in statements made to the court.

This is further supported by the efforts Mr. Hassan has made while in custody that is consistent with turning things around. This includes seeking out extensive psychological counselling and courses furthering his education. [ 20 ] There are no victim impact statements filed by the family of the victim. Mr.

Hussain was eventually murdered in any event and his family wants no part of exposing themselves to whatever potential threat might still be extant. [ 21 ] A victim impact statement is before the court from a person on the scene dealing with the sight of the wounded victim in what this person believed to be a safe place for himself, family, and friends.

This has, not surprisingly, created difficulty with this gentleman processing the fact that perhaps nowhere is safe from random violence done without regard to the prospects of random harm to persons simply going about their daily business. [ 22 ] The authorities provided by counsel support the submission that in these circumstances, a period of incarceration of 10 years is within an appropriate range of sentence. I have carefully considered those authorities and agree they all bear a striking resemblance to the circumstances at bar. [ 23 ] These cases include R. v. Ferguson , 2018 BCSC 1523 ; R. v.

Poony , 2017 BCSC 2571 ; and R. v. Mutneja , 2022 BCPC 109 . [ 24 ] The proliferation of handguns, even in this country, continues to be bracing. Paid executioners being hired to kill a perfect stranger, who go about their business without regard to the prospect of collateral damage to blameless bystanders, is deserving of the highest rebuke. But for the fact Mr.

Ismail could not shoot straight, I have no doubt both offenders would now be serving life sentences, and considering what to do with their lives in prison for the next, at least, 25 years. [ 25 ] In this regard, I adopt the comments of the Ontario Court of Appeal in R. v. Forcillo , 2018 ONCA 402 : [129] The moral blameworthiness of attempted murder is always very high. To be convicted of this offence, an accused must have a specific intention to kill the victim . . . the Supreme Court considered the fault requirement for attempted murder in the context of party liability under s. 21(2) of the Criminal Code .

Chief Justice Lamer characterized attempted murder in the following way, at p. 743 S.C.R.: Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer." . . . . . The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct.

Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe . [Emphasis added in Forcillo ] [ 26 ] It may be this botched murder will be seen as a fortunate turn of events and continue to motivate both Mr. Ismail and Mr. Hassan to start again and live up to the faith their family still places in their character and prospects. Certainly this proposed sentence does not approach a sentence that would cause right-thinking members of the public to conclude our justice system is broken.

It is clearly supported by relevant jurisprudence. It is the product of lengthy discussions between experienced and highly-regarded counsel armed with all the circumstances of the matter. This factor provides additional support for a conclusion that the proposed sentence is fit and proper in the circumstances. [ 27 ] Mr. Hassan, I sentence you to 10 years in prison. I deduct from that sentence credit for time spent in custody from October 6, 2020, to today. The credit rounded will be 1,640 days.

This results in a net sentence to be served of five years and six months. [ 28 ] I also impose the following orders: 1) an order pursuant to s. 109(2) (

b) of the Criminal Code preventing you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life and for any firearm other than a prohibited firearm or restricted firearm and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years after you are released from prison, pursuant to s. 109(2) (a); 2) an order that you provide a sample of your DNA pursuant to s. 487.051 of the Criminal Code .

Attempted murder is a primary designated offence, therefore this order is mandatory; 3) next, an order for forfeiture of the firearms, devices, and ammunition seized pursuant to s. 491 of the Criminal Code ; and 4) there will be an order that a copy of these reasons for sentence be forwarded to the Correctional Service of Canada pursuant to s. 743.2 of the Criminal Code . [ 29 ] Mr. Ismail, I sentence you to 10 years in prison. I deduct from that sentence credit for time spent in custody from October 6, 2020, to today. The credit rounded will be 1,640 days.

This results in a net sentence to be served of five years and six months. [ 30 ] I also impose those same orders, namely: 1) an order pursuant to s. 109(2) (

b) of the Criminal Code preventing you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life and for any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years after your release from prison, pursuant to s. 109(2) (a); 2) an order that you provide a sample of your DNA pursuant to s. 487.051 of the Criminal Code . Attempted murder being a primary

designated offence and thus a mandatory order; 3) an order for forfeiture of the firearms, devices, and ammunition seized pursuant to s. 491 of the Criminal Code ; and 4) an order that a copy of the reasons for sentence be forwarded to the Correctional Service of Canada pursuant to s. 743.2 of the Criminal Code . [ 31 ] CNSL K. ANDANI: Mr. Justice, the Crown directs a stay of proceedings on Count 2 of the indictment. “Crossin J.”