R. v. Kashari, 2021 BCPC 63

Citation: R. v. Kashari 2021 BCPC 63 Date: 20210322 File No: 62399 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Erjon Kashari REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: M. Dyler Counsel for the Defendant: J. Allingham Place of Hearing: Richmond , B.C. Dates of Hearing: March 15, 16, 2021 Date of Sentence: March 22, 2021 [ 1 ] Mr. Kashari has pled guilty to the charge that he did, by criminal negligence in the operation of a motor vehicle, cause the death

of Christy Mahy, contrary to

Section 220 (

b) of the Criminal Code . [ 2 ] After a 2 days of submissions last week, court was adjourned to today for my decision and reasons on sentence. [ 3 ] In this sentencing, I have considered the facts set out in the Agreed Statement of Facts, the circumstances of the offence, the circumstances of Mr. Kashari, the case authorities and other materials provided by counsel, Mr. Kashari’s criminal record and counsel’s submissions. [ 4 ] I have also considered the victim impact statements provided by Ms. Mahy’s sister, Joni Mahy, and Ms. Mahy’s friends, Brandie Mol, Kelly Scherk and Rebecca Nelken.

Many more friends and family members have attended this hearing through video and telephone links, unable to attend in person because of the covid-19 pandemic. [ 5 ] I would like to take a brief moment to address those friends and family of Ms. Mahy who have joined these proceedings, either in person or by video link, before proceeding further. Ms. Mahy was obviously deeply loved by her family and friends. She has been described as a vibrant person full of life and whose friendship brightened the lives of all those who knew her.

Her loss is grieved by the over 300 people who attended her celebration of life and probably by many more. Every day for the past 6½ years since her passing, someone has placed flowers at the spot where Ms. Mahy lost her life. I know that there has been some frustration and anger expressed at the amount of time that has passed before today. I know that this delay may have exacerbated your hurt and perhaps impeded you from being able to navigate your way through the stages of your grief, leaving you in shock and denial, pain, anger and depression.

In cases like this, where justice is delayed and so much is unresolved, the stage of acceptance and hope – where the joy of having known Ms. Mahy will one day be stronger than the pain of having lost her – may sometimes feel out of reach. [ 6 ] As was stated in the written submissions of the Crown, there is no sentence that I could impose that could adequately reflect the magnitude of your loss or the depth of your grief.

But, I hope that you will understand, by the time I conclude my reasons for sentence, why that cannot be the purpose or the principle of any sentence that the law could impose. [ 7 ] My task is to craft a fit sentence, according to the law. That law is set out in two ways. First there is the Criminal Code , where Parliament has expressed the collective will of society with respect to crime. The second way that the law is set out is through that body of law that is based on precedent – the past decisions of the higher courts of our land.

Decisions by judges in thousands of cases, interpreting the various sections of the Criminal Code through countless and varied fact patterns, have expanded and elaborated on the law – to the point where much of our law is judge-made. [ 8 ] Every sentence is unique to its particular circumstances – the circumstances of the offence and the circumstances of the offender. Relevant Facts [ 9 ] The Agreed Statement of Facts sets out the relevant details of the incident. On a clear and sunny afternoon on July 30, 2014, Mr. Kashari was driving northbound on No. 2 Road in Richmond. As he crossed the No. 2 Road Bridge, Mr.

Kashari was observed by two other drivers driving at a high rate of speed estimated at over 100 km/h in a 60 km/h zone. Those drivers observed Mr. Kashari pass them at a high rate of speed before quickly cutting back into their lane, in front of them, causing one of them to honk his horn at Mr. Kashari. The north end of the No. 2 Road bridge is approximately 500 metres from the traffic controlled intersection at Gilbert Road.

After Gilbert Road, No. 2 Road continues as Russ Baker Way. [ 10 ] The lights at Gilbert Road turned red for northbound traffic on No. 2 Road and at least two cars in each of the northbound lanes had come to a stop in front of Mr. Kashari. Mr. Kashari, still driving in excess of 100km/h, did not see the lights on Gilbert Road turn yellow or red until it was too late. [ 11 ] It is not clear from the Agreed Statement of Facts how Mr. Kashari’s vehicle ended up swerving to the right before continuing northbound. While at the scene, witnesses heard Mr.

Kashari comment about losing control of his vehicle after the tire blew out and about there being a bolt in one of his tires. In his statement to police, Mr. Kashari stated that he braked hard upon seeing the red light, heard the tire blow out, felt the vehicle pull to the right and lost control of the vehicle. However, later in the statement, Mr. Kashari also said he was attempting to avoid the vehicles stopped at the red light by braking and evading traffic. [ 12 ] Tire skid marks shown on the accident reconstruction diagram in the Agreed Statement of Facts indicate that Mr.

Kashari applied his brakes approximately 80 to 90 metres from the intersection with Gilbert Road. The swerve to the right, presumably the point where Mr. Kashari lost control of his vehicle, began approximately 40 metres later. The skid marks show Mr. Kashari’s vehicle, continuing on its northbound trajectory, veering very slightly to the east after the swerve, striking the triangular median at the south-east corner of the intersection, crossing Gilbert Road, and then striking and proceeding through the 2 nd triangular median at the north-east corner of the intersection. By the time Mr.

Kashari’s vehicle came to a stop in a grassy area to the east of Russ Baker Way, all 4 tires were deflated. [ 13 ] The victim Christy Mahy was standing beside her bicycle on that 2 nd triangular median waiting to cross the intersection and was struck by Mr. Kashari’s vehicle. At the time of impact, Mr. Kashari’s vehicle was still travelling at a speed in excess of 80 km/h. Ms. Mahy suffered catastrophic injuries and was pronounced deceased shortly after her arrival at the hospital. [ 14 ] At the time of the accident, Mr. Kashari was an Albanian citizen, residing in Canada as a refugee claimant since 2010.

On August 18, 2014, Mr. Kashari attended a Canada Border Services Agency (CBSA) office and withdrew his refugee application, thereby triggering a conditional removal order with a departure date of November 9, 2014. CBSA officials contacted the RCMP prior to issuing the removal order to query whether the RCMP had any concerns regarding Mr. Kashari’s removal from Canada. That query went unanswered. On November 9, 2014, Mr. Kashari departed Canada for Albania with a ticket provided by CBSA. [ 15 ] The Information charging Mr.

Kashari with negligent driving causing death was not sworn until June 25, 2018, almost four years later.

[ 16 ] On July 17, 2019, Mr. Kashari was arrested in Albania after the Canadian government sought his extradition on this charge. Mr. Kashari was denied bail and placed into custody. On August 24, 2019, the District Court in Albania ordered the extradition of Mr. Kashari to Canada to face this charge. Mr. Kashari appealed the District Court’s extradition order but the Court of Appeal in Albania upheld the extradition order in its ruling of January 9, 2020. Mr. Kashari’s further appeal to the Supreme Court of Albania was dismissed on April 30, 2020. [ 17 ] Mr.

Kashari was returned to Canada on August 11, 2020, and has remained in custody by consent. Mr. Kashari entered a guilty plea at the commencement of these proceedings. [ 18 ] The maximum punishment for this offence is life imprisonment. There is no minimum length of sentence. This is an offence that attracts sentences emphasizing denunciation, retribution, and both specific and general deterrence. Counsel have provided me with numerous case authorities to assist in understanding the factors relevant to sentencing and the weight that other courts have placed on these factors. Position of the Crown and Mr.

Kashari [ 19 ] The Crown seeks a sentence of between 2½ and 3 years of incarceration. Mr. Kashari seeks a sentence of 25 and a half months. [ 20 ] Mr. Kashari seeks credit for his pre-sentence custodial time in Canada at a ratio of 1.5 to 1 and credit for the entirety of his pre- sentence custodial time in Albania at a ratio of 1 to 1. [ 21 ] The Crown disagrees with Mr. Kashari’s position on credit for pre-sentence custody with respect to his confinement to custody while in Albania after his arrest on July 17, 2019. The Crown submits that Mr.

Kashari should only receive credit for that portion of his custodial time following the Supreme Court of Albania’s final rejection of his appeal on April 30, 2020, and no credit for custodial time in Albania prior to that date. In particular, the Crown opposes Mr. Kashari receiving credit for any of the time that his extradition was under appeal in Albania. Issues [ 22 ] The issues on this sentencing are the appropriate length of sentence for this offence and the amount of credit Mr. Kashari should receive for the time spent in custody in Albania. The Criminal Code on Sentencing [ 23 ]

Section 718 of the Criminal Code of Canada sets out the purpose and principles of sentencing as follows: The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 24 ]

Section 718.1 sets out the fundamental principle of sentencing: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 25 ]

Section 718.2 (

b) states: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [ 26 ]

Section 718.2 (

d) and (

e) state: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Case Authorities on Sentence [ 27 ] I have read all of the case authorities provided by both Crown and Defence counsel but I will refer only to those that I have found particularly helpful. [ 28 ] In R. v. Chan , 2004 BCSC 1581 , the court imposed a custodial sentence of two years less a day for the offence of criminal negligence causing death.

Mr. Chan was sentenced to a further 6 months consecutively for the offence of failing to stop at the scene of a fatal accident. In addition, Mr. Chan was placed on a two-year probation order following his release from custody as well as a three-year

driving prohibition. [29] Groberman, J. described Mr. Chan’s driving as “wantonly reckless” – driving at a speed of 134 km/h in a 50 km/h zone,deliberately pulling into the left turn bay to go around a vehicle stopped at the red light without making any effort to slow down or stop,and ploughing into the driver’s side front door of a police cruiser, killing Constable Jimmy Ng instantly. Mr. Chan left the scene afterjust 5 minutes without attending to Constable Ng, after emergency vehicles had arrived. He turned himself in to authorities the next day. [30] The mitigating factors in Mr.

Chan’s sentencing were his guilty plea, his remorse, his family support and the lack of any criminalor driving record. Also, Mr. Chan was a 19 year old young person pursuing an advanced education and was heavily involved in hischurch activities. [31] In R. v. Broomfield, (BC CA), 56 BCAC 220, the Court of Appeal dismissed Mr. Broomfield’s appeal of asentence of two years less a day for the offence of dangerous driving causing death. The reasons are very brief and focus on the moralculpability of the offender. The factors considered included the fact that, on the morning of the offence, Mr.

Broomfield had engaged in “drag-racing” with a friend. Also, his vehicle had 3 tires that were exceedingly bald with virtually no tread at all and a 4th tire that wasnearly bald. On his way home after the drag-racing, Mr. Broomfield pulled out to pass a truck. In the process of returning to his lane,Mr.

Broomfield lost control of his vehicle as it began hydroplaning because of his bald tires, and spinning in a counter-clockwisedirection, crossing the lane of the oncoming traffic and striking a pedestrian jogging on the opposite shoulder of the road, killing himinstantly. [32] While there was no evidence of any speeding or other bad driving, the court found Mr. Broomfield’s moral culpability to be veryhigh because of his drag racing and because he was driving with such bald tires. There is no indication of a guilty plea.

The passage fromthe trial judge’s reasons that were cited in the appeal decision stated that all 4 tires were marked as exhibits at the trial. I infer that Mr.Broomfield was convicted after a trial. The decision is silent as to mitigating circumstances, including whether Mr. Broomfieldexpressed any remorse. The Court of Appeal found no errors in the trial judge’s reasons and concluded that Mr. Broomfield had receiveda fit sentence. [33] In R. v.

Morgan, 2020 BCSC 1397, the court imposed a sentence of two years less a day on a charge of dangerous drivingcausing death, followed by three years of probation and a five-year driving prohibition. Mr. Morgan was witnessed to be drivingrecklessly and erratically, over a 10 kilometre stretch of highway, for over 3 or 4 minutes. He was observed to be driving at a high rate ofspeed estimated by several witnesses at 130 to 140 km/h in a 100 km/h zone, weaving in and out of traffic, tailgating, cutting in front ofother drivers and racing with a BMW he felt had cut him off earlier. One witness who was cut off felt Mr.

Morgan was attempting toforce him off the road. That impression was also expressed by a second witness. Yet another witness who was cut off by Mr. Morgansaid she thought she was going to die. Mr. Morgan ultimately lost control of his vehicle which then rolled end over end, injuring Mr.Morgan and fatally injuring his spouse who was a passenger in his vehicle. [34] Giaschi, J. found the following to be significant aggravating factors in the sentencing of Mr.

Morgan: • the consumption of alcohol prior to and perhaps during the driving and the fact that there was an opened can of beer in the car, • the duration of the dangerous driving which took place over 10 km and lasted at least 3 or 4 minutes, • the sheer recklessness of Mr. Morgan’s driving and the extent to which it deviated from the expected and acceptable norm, • the fact that his recklessness included racing with a BMW, • Mr.

Morgan’s record of motor vehicle infractions which included three 24 hour suspensions, two speeding or excessive speedingconvictions, one conviction for driving without due care and attention, and one conviction for failure to obey a traffic control device. [35] The mitigating factors in Mr. Morgan’s sentencing were that he was of First Nations heritage and had suffered a tumultuous andabusive upbringing, his guilty plea, his true remorse and his stable employment history. [36] In R. v. Aleksev, 2016 ONSC 6080, the court convicted Mr.

Aleksev after a trial of criminal negligence causing death andimposed a sentence of two years less a day followed by a three-year probation order. The Court also imposed a 15 year drivingprohibition. [37] Mr. Aleksev was found to have been driving recklessly at a high rate of speed in a high-density city neighbourhood having agood deal of vehicular traffic, at 9:30 a.m. on a weekday morning. He made a dangerous manoeuvre to avoid a large truck that waslawfully in the intersection and earlier had almost sideswiped a school bus. Mr.

Aleksev’s vehicle continued through a stale red light andstruck a young man in a crosswalk, killing him instantly. Mr. Aleksev’s speed at the moment of impact was estimated at 90 km/h and thelight he went through had been red for at least 6 seconds. Mr. Aleksev’s attention was diverted from the road while he adjusted theheating or the radio in his car. [38] The victim was 23 years old and a world-class squash player. He was an only child and the impact of his death on his parentswas devastating.

Numerous friends and members of the Toronto squash community wrote moving victim impact statements, describinghim as a person of great character and competitive spirit. His mother wrote “my life will never be the same again. He was all that I had.He meant the world to me.” Both parents suffered enormously, and by the time of the sentencing were no longer together. [39] The mitigating factors in Mr. Aleksev’s sentencing were: • He was a youthful first-offender. • He had the support of his family.

• He faced the prospect of deportation because he was not a Canadian citizen. [40] Trotter, J. rejected or minimized most of the Crown’s submissions regarding aggravating factors but did note that Mr. Aleksevdid not appear to accept full responsibility for what had occurred. Trotter, J. noted that Mr. Aleksev described much of the evidenceagainst him as being “exaggerated” and that, in light of the unfavourable pre-sentence report, his words of remorse at the sentencing rang“somewhat hollow”. [41] In R. v. Berner, 2010 BCPC, my brother Judge Gulbransen convicted Ms.

Berner of two counts of impaired driving and twocounts of dangerous driving, causing the death of a four-year-old child and bodily harm to her aunt. [42] Ms. Berner had been driving her car at excessive speed on 64th Street in Delta and failed to slow down for two large speedbumps.

Her car spun out of control, eventually striking a vehicle occupied by the grandparents of four-year-old Alexa Middelaer, parkedwell off to the side of the road, then veering off that car, striking Alexa and her aunt as they stood at a nearby fence feeding a horse.Alexa was killed and her aunt suffered terrible injuries. [43] In terms of mitigation, Ms. Berner had no prior criminal history and a minimal driving history. Judge Gulbransen noted that therewas no evidence Ms.

Berner had lived an anti-social life-style or had been anything other than a normal law-abiding citizen prior to theoffences for which she was being sentenced. She was living in poverty. She expressed her remorse when she addressed the court. In herdealings with an undercover officer during the pre-charge investigation, Ms. Berner had also expressed shame and sorrow for what shehad done and the harm she had caused. [44] With respect to aggravating circumstances, Judge Gulbransen cited her high degree of moral culpability.

While her ability todrive was impaired by alcohol, she drove at a speed that was dangerous because she knew, or ought to have known, that she would soonencounter speed bumps. Yet she did not slow down at all. [45] Considering all of the circumstances, Judge Gulbransen sentenced Ms. Berner to custodial terms of imprisonment of 2 years and6 months on each of the four counts, to be served concurrently. She was also prohibited from driving for five years. [46] Other cases submitted by Crown involved drivers who had consumed alcohol before driving or had been convicted of impaireddriving causing death.

In those cases where alcohol consumption is a factor, that is considered a serious aggravating factor and generallyattracts harsher sentences.

Range of Sentence for Negligent Driving Causing Death [47] The Crown has submitted that the sentence that is fit for this type of offence falls within a range of two to four years, dependingon the mitigating and aggravating factors. [48] While I must be guided by the case authorities provided by counsel with respect to their treatment of the relevant factors and thesentences imposed after assessing the relative weight given to those factors in each of those cases, I find the discussion regarding therange of sentences for this type of offence by Rosenberg, J.A. of the Ontario Court of Appeal to be most persuasive.

At paragraph 34 ofAleksev, Trotter J. cited the case of R. v. Linden (2000), (ON CA), 147 C.C.C.(3d) 299 (Ont. C.A.) where Rosenberg,J.A. stated at p. 300: If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causingdeath. The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies therange-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety ofcircumstances in which this offence can be committed.

As counsel for the appellant submitted, cases can be found in the reformatoryrange and there are even examples of suspended sentences. The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless drivingconduct, but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, theparticular offence is very much driven by individual factors, especially the blameworthiness of the conduct.

The more that the conducttends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and themore likely that a lengthy prison term will be required. [emphasis added] Circumstances of Mr. Kashari [49] Mr. Kashari has encountered many difficulties in his life. He was raised in abject poverty in Albania during its period ofcommunist dictatorship.

When he was 13, his father, who he was very close to, was killed by a motor vehicle in a hit and run incident.His mother is paralyzed and his only other sibling – his sister – has cancer and is undergoing chemotherapy. [50] When Mr. Kashari was 14, he walked for five days to Greece where he found work on farms as an illegal immigrant. He wasdiscovered by Greek authorities and forced to leave that country when he was 18. He then made his way to England where he worked atmenial labour jobs.

During this period, he struggled with substance abuse – particularly alcohol – and accumulated a number of offenceson his criminal record including common assault in 2002, assault occasioning bodily harm and burglary and theft in 2004, failure toprovide a specimen for analysis in February 2007, and false imprisonment and assault causing bodily harm in December 2007. [51] For the offences in 2002 and 2004, Mr. Kashari was sentenced to community work service. For the failure to provide a specimenfor analysis, he received a conditional discharge.

For the false imprisonment and assault of his ex-wife in December 2007, he wassentenced to 12 months imprisonment and ordered deported. [52] Mr. Kashari’s deportation from the UK took place in April 2009. He made his way to Canada in February 2010 and applied forrefugee status.

[ 53 ] Hoping for a fresh start in life, Mr. Kashari stopped drinking alcohol, obtained a work permit and began working in construction. It would appear that, after arriving in this country, Mr. Kashari was making a great effort to turn his life around and become a constructive and law-abiding member of society. Until the day of this offence, he was able to live his life in Canada crime-free. [ 54 ] Mr. Kashari’s driving history contains two speeding violations, one driving contrary to restrictions violation and one changing lanes without signalling violation. [ 55 ] Mr.

Kashari struggled after his removal from Canada. He accumulated two further offences on his criminal record – aggravated fraud and receiving proceeds of crime in Norway in 2015 and domestic violence in March 2016. There is no record of any further offences committed after that date. [ 56 ] Mr. Kashari has one child – a daughter, Alyssa, born in 2002, who has written a letter in support of her father. Aggravating and Mitigating Factors [ 57 ] Comparing the facts in any sentencing case with the facts in other sentencing cases is always a difficult exercise. No two cases are completely alike. [ 58 ] Mr.

Kashari does not have the mitigation of being a young man as was the case in the Chan , Broomfield, and Aleksev. He is not of Aboriginal heritage as was the case in Morgan . Mr. Kashari has a criminal record, an aggravating factor not found in Chan , Aleksev and Berner . Mr.

Kashari’s driving leading up to the offence was more egregious than in the case of Aleksev . [ 59 ] However, each of those cases lacks one or more of the mitigating factors that are applicable in the case at bar and each contains one or more aggravating factors that are absent in the case at bar. [ 60 ] Each sentencing requires a careful balancing of the aggravating and mitigating factors, the circumstances of the offence and the circumstances of the offender.

Each sentencing requires a determination of the weight to be given to each factor. [ 61 ] In my view, the case authorities demonstrate that the most significant sentencing factor for this type of offence is the blameworthiness, or moral culpability of the offender’s conduct, and whether the offender’s conduct tended to demonstrate any deliberate endangerment of other users of the road and pedestrians. [ 62 ] Mr. Kashari drove recklessly at high speed, knowing one of his tires was compromised by having a bolt in it.

Witnesses observed his bad driving on the No. 2 Road Bridge passing at high speed and cutting in front of them. He clearly was not paying proper attention to the road in front of him. By the time he noticed the red light two cars ahead of him in each of the two northbound lanes had already come to a stop. [ 63 ] In her written submissions, the Crown submitted that Mr. Kashari’s bad driving was observed over a distance of approximately 500 metres. At a speed of 100 km/h, that distance would have been traversed in less than 18 seconds. That is a long time to be driving badly at a high rate of speed.

However, while not a momentary lapse of judgment, the bad driving displayed by Mr. Kashari was not observed over nearly as prolonged a period of time as was the case in Morgan , and was not as egregious . [ 64 ] Unlike the facts in Aleksev , Berner and Chan , I cannot find that Mr. Kashari’s risk taking was as deliberate or wilful. There was no evidence of those offenders making any effort to slow down or apply the brakes prior to the fatal collision. Mr. Kashari at least applied his brakes and made a belated attempt to slow down before losing control of his vehicle. [ 65 ] While Mr.

Kashari was negligent in not repairing his compromised tire prior to driving his vehicle on the day of the offence, he did not ignore the problem completely. Mr. Kashari pumped up all tires to regulation pressure and sprayed the bolt with glue, hoping that this patchwork would hold and be safe for a few days until his pay day when he could afford to properly do the repair. While that hope was foolish and his decision to drive with that tire unrepaired was criminally negligent, in my view, it did not amount to the utter disregard for danger created by the completely bald tires in Broomfield . Neither did Mr.

Kashari demonstrate a deliberate risk-taking attitude, as demonstrated by Mr. Broomfield’s decision to engage in drag-racing with those bald tires earlier that day. [ 66 ] Unlike the facts in Aleksev and Broomfield , Mr. Kashari pled guilty, avoiding the need for a trial. The Crown takes no issue with the Defence submission that Mr. Kashari’s intention to enter a guilty plea was expressed soon after his return to Canada, and that he should receive credit for an early guilty plea. In my view, that is a significant mitigating factor. [ 67 ] Unlike the facts in Chan and Berner , Mr.

Kashari did not flee the scene but remained and was forthright with the police from the outset. Unlike the facts in Berner , Morgan , and other case authorities provided, there is no indication of alcohol consumption by Mr. Kashari being a factor in this offence or having occurred at all that day. [ 68 ] Mr. Kashari has a criminal record but it is not particularly extensive. He has one prior related offence, a failure to provide a specimen for analysis offence in the United Kingdom in 2007.

His last offence prior to arriving in Canada as a refugee claimant in 2010 was for domestic assault in 2008, also in the United Kingdom. There is a significant gap in his criminal record from 2008 until his conviction in Norway in 2015, after his removal from Canada, for aggravated fraud and receiving proceeds of crime. Mr. Kashari has no criminal history in Canada. [ 69 ] Mr.

Kashari received community based sentences for all of his offences pre-dating this offence except for the domestic assault committed in December 2007 for which he received 12 months imprisonment and which resulted in his deportation in 2009. [ 70 ] In my view, another mitigating factor that should be given considerable weight is the degree and the sincerity of Mr. Kashari’s remorse. That remorse was deep, genuine and immediate as evidenced by his conduct even at the scene on the day of the offence. [ 71 ] Mr.

Kashari remained at the scene and was described as appearing so distraught to police investigators that they were concerned

about his emotional health. The Agreed Statement of Facts described him to be crying, expressing dismay that someone had died, saying that he was disgusted at his actions and that he felt disgrace. His initial statement to police expressed guilt and shame and a desire to make amends to the family of Ms. Mahy. Mr. Kashari later gave a warned police statement a little over an hour after the incident. He was cooperative throughout his dealings with police. [ 72 ] Mr.

Kashari’s daughter Alyssa states in her letter of support: There is not one day that my dad does not feel deeply apologetic for the incident, he truly is remorseful. I know this because my dad has confided with me on multiple occasions about how incredibly sorry he is for the distress he has caused for the family of Christy. [ 73 ] In my view, after considering the facts and both the aggravating and mitigating factors in the case at bar, I do not find the circumstances of Mr. Kashari and of this offence to be significantly more egregious than those where the sentence imposed was two years less a day.

Accordingly, in my view, I find that the sentence sought by Mr. Kashari – 25½ months – to be an appropriate and fit sentence. Credit for Time Confined in Pre-trial Custody [ 74 ] The issue with time to be credited for pre-trial time confined to custody revolves around the issue of the time Mr. Kashari was confined to custody in Albania, particularly that period of time that he was appealing his extradition order. [ 75 ] The decision to grant credit to an accused for pre-sentence time confined to custody is within the discretion of the sentencing judge.

Credit for time spent in custody prior to sentence at a ratio of 1.5 to 1 is routinely granted by courts in this country absent extenuating circumstances. Both Crown and Defence agree that ratio should be applied for the time spent in pre-sentence custody in Canada. The issue is what credit, if any, should be granted for the pre-sentence custodial time spent while confined in Albania. [ 76 ] The Crown submits that this court should exercise its discretion to award no credit for that period from Mr. Kashari’s arrest on July 17, 2019, to April 30, 2020, when his final extradition appeal was dismissed.

The Crown concedes that some credit should be granted for the period from May 1, 2020, to August 11, 2020, when Mr. Kashari was finally returned to Canada. Defence counsel submits that this court should award credit for the entirety of period spent in custody in Albania at a reduced rate of 1:1. Case Authorities on Pre-Sentence Custody Awaiting Extradition [ 77 ] A number of cases have been provided by counsel on this issue. As may be expected where the court’s decision is entirely discretionary, courts have varied widely in their approach. [ 78 ] In R. v. Valois , 2000 BCCA, Mr.

Valois escaped from the West Vancouver Courthouse in his socks with police in pursuit during his second court appearance on firearm and explosives charges as well as possession of stolen property. At the time of those offences, he was also on parole serving a sentence for armed robbery. Following his successful escape, Mr. Valois made his way out of Canada, before being arrested and returned to Canada 12 years later in 1999. The sentencing judge declined to grant Mr. Valois any credit for the three months Mr.

Valois was confined to custody in the United Kingdom awaiting extradition. [ 79 ] It is not apparent from the reasons that Mr. Valois opposed or appealed his extradition. [ 80 ] In dismissing the Mr. Valois’ appeal, Hollinrake, J.A. agreed with the sentencing judge’s reasons where she said: … But running to another country as part of an escape should not be made more attractive for fugitives, which would be the result of crediting them with the time they spent in custody while awaiting their return. If that were the law there would be no down side to such flight on the part of the fugitive.

It would make them consider the advisability of remaining within Canada. [ 81 ] Hollinrake, J.A. concluded: … It was open to the sentencing judge to decline to take this three months of custody in the United Kingdom into account in sentencing the appellant as was done. I can see no error in principle here that would permit this Court to intervene assuming the sentence is otherwise a fit one as I think it is. [ 82 ] In R. v. Millward , 2000 ABCA 308 , the Alberta Court of Appeal dismissed Mr.

Millward’s appeal that the trial judge erred in failing to give full credit for the 11 months of confinement in the U.S. prior to his extradition to Canada. It would appear from the reasons that Mr. Millward absconded from the jurisdiction and then later contested his extradition back to Canada. Fraser, C.J.A., stated: The policy reasons for this approach are evident. An offender should not be rewarded for taking flight, indeed, he or she should be discouraged from doing so. [ 83 ] Fraser, C.J.A., found that there was an evidentiary foundation for the trial judge’s finding that Mr.

Millward had “resisted extradition”. [ 84 ] It should be noted that credit for the time Mr. Millward was confined in the U.S. was not entirely rejected. The issue at the Court of Appeal was that he was given too “little credit” for that time. As was made clear at paragraph 23 of R. v. Abdelhamid , 2013 MBQB 201 , the sentencing judge had in fact given credit for Mr. Millward’s confinement in the U.S. while resisting extradition, at a ratio of 1:1, and credit for pre-sentence confinement in Canada at a ratio of 2:1. [ 85 ] In R. v. Toon , 2006 ABCA 329 , Mr.

Toon fled to Trinidad shortly after shooting a victim to death in a parking lot in September 2003, after a memorial service for a friend who had also died in a shooting. Mr. Toon remained in Trinidad until his arrest on charges of 2 nd degree murder in April 2004. Mr. Toon consented to his extradition but because of administrative delays, his return to Canada did not take place until July 2004. The sentencing judge did not grant credit for the time Mr. Toon spent confined in Trinidad. On appeal, the

court held that, given Mr. Toon’s consent to the extradition, he should be granted 2:1 credit for the time spent in pre-sentence custody in Trinidad. [ 86 ] In R. v. R.E.M , 2008 BCCA, the appellant refused to attend his preliminary hearing on charges of sexual interference with his step-daughter and absconded to the United States.

On appeal, the issue was the sentencing judge’s refusal to grant him credit for the 4 and ½ months spent in pre-sentence custody in the U.S.A. awaiting extradition. [ 87 ] At the sentencing hearing, the judge stated that he was unwilling to grant R.E.M. credit for the time spent in custody in the U.S.A. but had “taken the situation into account in determining the overall sentence.” [ 88 ] On appeal, R.T.A. Low stated in his brief reasons: I do not agree with the appellant that the trial judge failed to give him credit for the time spent in custody in the State of Washington.

He did not do a mathematical calculation as he might have done, but he made it clear that he was taking the circumstance into account. I read his reasons to mean that if the appellant had not spent the time in custody prior to extradition that the sentence would have been higher. In my opinion the judge did not err in considering the factor in the manner that he did. [ 89 ] In other words, Low, R.T.A., dismissed the appeal on the ground that the sentencing judge had, in fact, allowed some credit for the time spent in custody awaiting extradition. [ 90 ] In R. v.

Singleton , 2011 BCSC 1838 , the accused was a lawyer charged with fraud of $494,633 from an estate that he was executor and trustee of, which had been bequeathed to various charities. The fraud occurred between 1988 and 1990. Mr. Singleton departed Canada in 1993 for the United States before completing his work on the estate. Mr. Singleton was a dual citizen and departed Canada prior to any criminal charges being sworn. However, t he court found that Mr.

Singleton knew he was facing criminal charges by 1998 when he corresponded with a lawyer in B.C. regarding the prospects of extradition and his plans to evade the same. He was arrested in Kansas in 2004 and spent two years in custody fighting extradition. Arnold-Bailey, J. declined to exercise her discretion to allow him credit for the time spent in U.S. custody while he was resisting extradition. [ 91 ] Arnold-Bailey, J.’s reasons are brief and do not cite many case authorities.

However, in my view, this is another case where the issue of credit for pre-sentence custodial time spent awaiting extradition involves an accused who is fleeing from the jurisdiction to escape criminal responsibility. This was a large fraud from an estate by a lawyer acting as executor and trustee. It is not plausible that Mr. Singleton, even when he departed Canada in 1993, would have been unaware of the illegality of his conduct and that charges would eventually be filed. He never returned to Canada until he was finally extradited in 2006. [ 92 ] R. v. Abdelhamid, 2013 MBQB 213 and R. v.

Branch , 2020 OJ No. 2628 are also cases where the accused fled the jurisdiction to avoid criminal charges and consequently received no credit for custodial time in another jurisdiction awaiting extradition. Mr. Abdelhamid absconded while on bail. Mr. Branch had prepared fraudulent tax returns for a number of clients that resulted in the evasion of over $10 million in taxes. Mr. Branch himself evaded personal income taxes in the amount of $245,643. A search warrant had been executed in his presence in November 2011. Charges against him were sworn in 2012.

He was arrested in Costa Rica in September 2017 and resisted extradition until all appeals were exhausted. He was extradited to Canada in February 2019. Though Mr. Branch may have departed Canada prior to charges being sworn, he fled with the knowledge that charges were imminent. [ 93 ] In R. v. Sponagle , 2017 NSPC 23 , Mr. Sponagle was charged with defrauding 201 investors of well over one million dollars, committed between December 2005 and September 2006. Mr. Sponagle was arrested and placed in custody on the Canadian charges in April 2013 and resisted extradition.

He was ultimately extradited to Canada in December 2014 after having spent nineteen and a half months in Panamanian custody. [ 94 ] Crown counsel conceded that Mr. Sponagle’s circumstances were different from those in Valois, Millward and R.E.M. in that Mr. Sponagle had departed Canada and relocated to Panama prior to any charges being sworn. The Crown and Defence presented a joint submission that Mr. Sponagle receive credit at 2:1 for the time spent in Panamanian custody because of the notorious conditions in the prison where he was incarcerated. That joint submission was accepted by the court.

Crown and Defence submitted that the conditions in that Panamanian prison would have otherwise entitled Mr. Sponagle to even higher credit, but agreed that it should be reduced to 2:1 in light of his resistance to extradition. [ 95 ] In R. v. DD, 2020 ONSC , the accused absconded after conviction and before sentencing. DD did not oppose his extradition and Crown and Defence both agreed that 1.5:1 credit for pre-sentence custody while awaiting his extradition be granted.

Analysis of the Pre-Sentence Custodial Time in Albania While Awaiting Extradition [ 96 ] Clearly, there is a wide range in the treatment of pre-sentence custody in another jurisdiction while awaiting extradition. In my view, the circumstances in the case at bar are significantly different from those in the cases that have been presented. Mr. Kashari did not abscond or “flee” the jurisdiction of this court. He did not know that any charges were imminent or even likely at the time of his departure. [ 97 ] Mr. Kashari withdrew his application for refugee status as he was entitled to do.

At that point the decision that Mr. Kashari leave Canada was made by CBSA not by Mr. Kashari. CBSA officials notified the RCMP to ask if they had any concerns with the issuance of a removal order against Mr. Kashari prior to issuing it. That inquiry went unanswered and Mr. Kashari was removed from Canada by CBSA on November 9, 2014. It is uncontested that when Mr. Kashari left Canada he did not know, and genuinely did not believe, that he would be facing any charges in Canada. [ 98 ] No charges were sworn until June 25, 2018. By that time Mr.

Kashari had been living outside of Canada for over three and a half years. By the time of his arrest on July 17, 2019, he was an Albanian citizen living in Albania, and almost 5 years had passed since the events of July 30, 2014.

[ 99 ] Mr. Kashari opposed his extradition and appealed the court’s extradition order twice, to the Albanian Court of Appeal and then to the Supreme Court of Albania. [ 100 ] The Crown submits that while Mr. Kashari did not abscond from the Court’s jurisdiction, he is responsible for the time he spent in Albanian custody resisting his extradition. In the written submissions, the Crown cited the following passage from Branch : Where a person remains in custody in another jurisdiction awaiting extradition to contest the extradition, the fault for the delay falls on the person.

That time is generally not considered pre-trial custody. The reason is that resisting extradition is a choice made by the person resulting in the pre-trial custody. See R. v. Hatfield , 1937 Carswell Ont. 235 at page 1 where no credit was given in these circumstances. [ 101 ] This reasoning can also be found in other cases. However, with respect, I find this reasoning above to be flawed. The issue is not the delay, nor is it the resistance or opposition to extradition. The issue is the detention in custody. While Mr.

Kashari might be the cause of some delay by reason of his appeal of the extradition order, he was not the sole cause of his detention in custody. The recent submissions that I recently requested from counsel clearly show that Mr. Kashari sought his release on bail after his arrest. He sought his release again at the time of his appeal. Mr. Kashari was denied bail and detained in custody by the Albanian courts. Mr. Kashari did not choose to be detained in custody. His choice was to be released on conditions of bail.

His detention in custody was the choice of the Albanian courts. [ 102 ] It must be remembered that the rationale for awarding credit to an accused for pre-sentence time confined to custody is the recognition that, at the time of sentence, that time should be treated as a sanction imposed by the state, flowing from the charges for which the accused is being sentenced. In my view, there is little reason to treat his detention by the Albanian courts any differently from any other detention order. [ 103 ] In the absence of policy considerations that would be applicable had Mr.

Kashari been an absconding accused fleeing the jurisdiction to avoid criminal proceedings, I see no compelling policy reason for a total denial of credit for time spent in custody awaiting his extradition. In my view, the custodial time in Albania while awaiting extradition, including the period during which his extradition was being appealed, should result in credit towards his sentence at a 1:1 ratio. [ 104 ] From the date of his arrest on July 17, 2019, to the final dismissal of his appeals on April 30, 2020, is 289 days. From May 1, 2020, to today, March 22, 2021, is 326 days.

Applying a ratio of 1.5 to 1 to this period results in credit for 489 days. The totals number of days to be credited is 778 days or 25 and three quarter months. [ 105 ] Combining the time Mr. Kashari is to be credited for his time confined to custody in Albania with the time he has spent in Canada credited at a ratio of 1.5 to 1, a sentence of 25 and three quarter months is fully satisfied by the total amount of time credited. Decision [ 106 ] Mr. Kashari, please stand. I sentence you to 25 and three quarter months imprisonment.

I award you credit for that 25 and three quarter months for the pre-sentence time you have been confined to custody. There will be no further time remaining to be served. [ 107 ] In addition, pursuant to Section 259(2)(a.1) of the Criminal Code , I prohibit you from operating any motor vehicle on any street, highway or public place in Canada for a period of five years. _____________________________ The Honourable Judge P. Chen Provincial Court of British Columbia