R. v. Shrophire, 2011 QCCS 1880

R. c. Farouk Ahmed 2011 QCCS 1880 JP0688 SUPERIOR COURT (Criminal division) CANADA PROVINCE OF QUEBEC DISTRICT OF HULL N° : 550-01-043191-099 DATE : April 8 th , 2011 _____________________________________________________________________ IN THE PRESENCE OF : THE HONOURABLE JEAN-PIERRE PLOUFFE, J.S.C. _____________________________________________________________________ THE QUEEN Plaintiff v.

MOHAMED FAROUK AHMED Accused _____________________________________________________________________ SENTENCE _____________________________________________________________________ [ 1 ] Charged with first degree murder and conspiracy to commit murder, the accused pleaded guilty to second degree murder. The Court accepts that plea on the included offence and acquits the accused of the charges as laid. The evidence [ 2 ] As stated in the joint

summary of facts submitted : In the early hours of the 25 th of June 2009, at approximately 2:35 a.m., the victim M. Daniel Valladares (1990-04-14) arrived in the parking lot of the “Cabaret Le Pink”. He was accompanied by two friends. He then proceeded to enter the establishment and left his two friends in the vehicle they drove up in, that being a Honda. The accused Mohamed Farouk Ahmed (1983-[...]) arrived at the “Cabaret Le Pink” at approximately 2:40 a.m. He arrived in a Chevrolet Tahoe and was with other individuals.

At approximately 2:49 a.m. the accused left the premises with another individual, only to return to the premises at approximately 3:02 a.m. [ 3 ] At approximately 3:07 a.m., at closing time, quite a few people exited the bar. At this time both the accused and the victim were standing outside. Another vehicle drove into the parking lot and at least one unidentified individual exited the said vehicle. A few moments later when the accused was walking towards the victim, an unidentified individual fired a shot from a firearm. The accused then proceeded to run behind the victim and started shooting in his direction.

At this time the victim, while running away, shot back at the accused, he also being in possession of a firearm. The victim ran towards the Honda vehicle where his two friends were waiting. At this time at least one unidentified individual was shooting in the direction of the victim while he was proceeding to enter into the Honda vehicle. At this time the Honda drove away in the direction of the Gatineau police station, in the Aylmer sector. The victim had been shot 4 times, that being in the throat, the shoulder, the hip and in the pubic area.

It should be noted that the scene was filmed by a surveillance camera. Once in front of the police station, one occupant of the Honda vehicle dialed 911. Police and paramedics attended the scene. Daniel Valladeres was subsequently transported to hospital where he was pronounced dead at 4:05 a.m. The question in issue [ 4 ] The Court must determine when the accused’s case will be considered for parole. The period for parole ineligibility can be no less than 10 years and no more than 25 years. In this regard, counsels have made a common suggestion, that is a parole ineligibility period of 11 years. The Law [ 5 ]

Section 745.4 Cr. C. states the relevant criteria to be taken into account by the Court in order to determine parole ineligibility : the character of the offender, the nature of the offence and the circumstances surrounding its commission. [ 6 ] In the leading case of R. v. Shrophire , the Supreme Court has established the following principles in setting period of parole ineligibility :

«As a general rule, the period of parole ineligibility shall be for 10 years but this can be ousted by a determination of the trial judge that, according to the criteria set out in this section, the accused should wait a longer period before having his suitability to be released into the general public assessed. Denunciation, future dangerousness and general as well as specific deterrence are relevant criteria in making the determination.

An extension of the period of parole ineligibility would not be unusual, although it may well be that, in the median number of cases, a period of 10 years might still be imposed. The power to extent the period of parole ineligibility need not be used sparingly [1] .» [ 7 ] Sections 718, 718.1 and 718.2 Cr. C. refer to the purpose, the fundamental principle and other sentencing principles. [ 8 ]

Section 718 states the fundamental purpose of sentencing as follows : «The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives :

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.» [ 9 ] Moreover, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (sec. 718.1 Cr. C.). A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (sec. 718.2 Cr. C.). Analysis [ 10 ] What are the relevant aggravating circumstances? [ 11 ] The Court finds the following aggravating circumstances are present in this case : 1.

The nature of the offence : indeed a second degree murder is objectively one of the most serious crimes in the Criminal Code ; 2. The principles of denunciation and deterrence are particularly relevant for offences committed with the use of a firearm [2] ; [ 12 ] The Court finds the following mitigating circumstances are present in this case : 1. The plea of guilty which is generally considered as some indication of remorse and the first step towards rehabilitation. Moreover, this has prevented a trial of a duration of approximately 8 weeks; 2.

The age of the accused at the time of the commission of the offence, that is 26 years of age; 3. The absence of criminal record; 4. The remorse and awareness of the suffering caused to the victim’s family, as expressed by defense counsel on behalf of his client. [ 13 ] With regard to the common suggestion as to sentence made by counsels, the Court of appeal reiterates the state of the law as follows : «[5] En matière de suggestion commune, l’état du droit est bien établi.

Sans être lié par la suggestion des parties, le juge ne peut l’écarter à moins qu’elle soit déraisonnable, contraire à l’intérêt public, inadéquate ou encore susceptible de déconsidérer l’administration de la justice…» [3] [ 14 ] After a careful consideration of all the evidence and the relevant caselaw, including the case of The Queen v. Mondésir [4] , the Court is of the view that the common suggestion made by counsels is warranted. [ 15 ] The Court wishes to express its sympathy to the members of the victim’s family. Indeed, the circumstances of the present case constitute a tragedy for many people.

As pointed out by the victim’s brother, “nothing can bring Daniel back to life”. However, it is felt that the present sentence is denouncing adequately the accused’s unlawful conduct and will deter him and others from committing similar offences. It is hoped that it will promote a sense of responsibility in the accused and contribute to his rehabilitation.

Furthermore it is an acknowledgement of the harm done to the victim and the community, including his family. [ 16 ] Finally, both counsels agree that the money seized at the time of the accused’s arrest should be restituted to him. [ 17 ] In view of the above and taking into account the three applicable criteria enumerated in

section 745.4 Cr. C., along with the factors stated in sections 718, 718.1 and 718.2 Cr. C., more particularly general as well as specific deterrence, the denunciation of the

accused’s illegal conduct, his separation from society and his rehabilitation, the Court deems fit to extend the period of parole inegibility to a period of eleven (11) years. [ 18 ] IN CONSEQUENCE, THE COURT : [ 19 ] SENTENCES the accused to life imprisonnement; [ 20 ] ORDERS that he serves a period of eleven (11) years before being considered for parole; [ 21 ] PROHIBITS the accused from possessing for a period of ten (10) years, any firearm, prohibited firearm, restricted firearm, cross-bow, restricted weapon, prohibited weapon, ammunition, explosive substance, prohibited device and prohibited ammunition; [ 22 ] AUTHORIZES the taking from the accused of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis; [ 23 ] ORDERS the restitution to the accused of the money seized at the time of his arrest and filed as exhibits 0936291A5-9 and 0936291A5-10, and this by cheque made in the name of accused’s counsel, Mr Michel Swanston in trust; [ 24 ] DISPENSES the accused from paying the fine surcharge, because of the particular circumstances of the present case. _______________________________________ JEAN-PIERRE PLOUFFE, J.C.S.

M e Sylvain Petitclerc M e Isabelle Michaud Counsels for the Plaintiff M e Michel Swanston M e Gérard Larocque Counsels for the Accused