R. v. Dourhnou, 2011 ONCJ 831

Citation: R. v. Dourhnou , 2011 ONCJ 831 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ZAKARIA DOURHNOU Before Justice C.S. Dorval Reasons for Judgment released on April 21, 2011 Ms. J. Scott ................................................................................................................ for the Crown Mr. M. Ertel ............................................................................... for the accused Zakaria Dourhnou DORVAL, J.: [ 1 ] On March 9, 2011 Mr. Dourhnou entered a plea of guilty to attempt to obstruct justice and a breach of probation.

An agreed statement of fact was filed as exhibit 1 and the matter was adjourned for submissions. As neither party was seeking the preparation of a Pre-Sentence Report, I requested that a copy of the youth Pre-Sentence Report be provided to me on the date of submissions. [ 2 ] On March 25 th , 2011 I was advised, prior to submissions, that although the accused had recently been sentenced under the YCJA, no report had been prepared. I heard submissions but was not satisfied that I had sufficient background on this young man to proceed to sentencing.

I ordered a Pre-Sentence Report and provided counsel an opportunity to make any additional submissions arising from the report. FACTS [ 3 ] Mr. Dourhnou’s involvement in this matter commences as a result of a homicide which took place on December 6 th , 2010 at 10:15 a.m. Abdulhamid Wehbe and Mohamed Wehbe met with Yazden Ghiasvand and Don Dao for the purpose of a drug transaction. When Mr. Ghisasvand went to the Wehbe vehicle to obtain the money for the drugs, two loud bangs were heard and two males were seen removing Mr. Ghiasvand from the rear of the Wehbe vehicle and leaving him on the sidewalk. Mr.

Ghiasvand was pronounced dead at the hospital. The cause of death was a gunshot wound to the heart. Mr. Abdulhamid Wehbe has been charged with murder but this matter has yet to go to trial. [ 4 ] Eye witnesses provided a license plate for the vehicle in question, a blue Nissan Maxima. The vehicle was located by police at 20:18 in a visitor’s parking lot between 1140 and 1170 Fisher Ave. Mr. Dournhou resided at 1170 Fisher at that time. Plates had been removed and the sun-roof was smashed out. At 02:25 two males approached the vehicle. Mr.

Dournhou arrived on foot walking a dog, and a second male, Khaled Wehbe arrived in a 1998 Mazda. They both went to the vehicle. Mr. Dourhnou entered the front of the vehicle and immediately began cleaning. Mr. Wehbe entered the back passenger area and also started cleaning. Mr. Wehbe returned to his vehicle with rags and a bag and both were observed to be cleaning the interior of the vehicle with CLR and Scrub-Free cleaning products. The surveillance team was directed to arrest them at 02:40. The keys to the vehicle were located in Mr.

Dourhnou’s pant pocket. [ 5 ] There was blood on the back seat of the vehicle, and what appeared to be transfer staining on the back of the driver’s seat head rest. It appeared that a bullet had gone through the sun-roof from the interior of the vehicle at an angle and that it had pierced the shade of the sun-roof. The glass portion of the sun-roof had been shattered.

[ 6 ] Although the victim’s DNA was ultimately found in the vehicle, the nature of the cleaning products did compromise the evidence which could have been collected from the vehicle, such as blood splatter and gunshot residue, as well as DNA. [ 7 ] At the time of his arrest, Mr. Dournhou was bound by a probation order made on April 20 th , 2010. This order required him to reside with his mother. At the time of this occurrence, he resided at 1170 Fisher while his mother resided in the City of Gatineau.

POSITIONS OF THE PARTIES [ 8 ] The Crown submits that a sentence of two years of incarceration is appropriate, followed by probation. Ms. Scott emphasized the seriousness of the crime, the premeditation revealed by the facts and argues that the accused had to have known what had occurred in the vehicle, given the substantial media coverage of the occurrence and the state of the car. [ 9 ] Mr. Ertel urges the Court to find that a sentence of six months of incarceration is sufficient, as this is a first period of incarceration on a youthful offender, and that the principle of restraint should be applied.

He argues that since DNA was retrieved from the vehicle, that the impact of this act on the investigation is attenuated. THE LAW [ 10 ] I have been provided with case law which deals with both obstruct justice offences as well as accessory after the fact offences. I understand that the cases dealing with this type of factual scenario often involve charges of accessory after the fact of a homicide. That charge requires prior knowledge by the offender of the nature of the act committed. The act committed, therefore, comes with moral blameworthiness which is higher than that involved in obstructing justice.

I was mindful of that distinction when reviewing the case law provided. [ 11 ] The range of sentences for obstructing justice is quite wide. The cases provided to me ranged from a conditional sentence of 18 months to a term in the penitentiary of 4 years. The nature of the underlying offence sought to be obstructed is a relevant consideration. [ 12 ] The cases do emphasize the principles of deterrence and denunciation when dealing with obstruct justice. In R .v Tapaquon

(2009) S.J. No.212 Justice Whitmore quoted the BCCA in R. v. Hall

(2001) VCJ No 560 at paragraph 32 as follows: “Obstruction of justice also is a serious offence, but in a different way than the other three offences. Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated.

It is for this reason that the courts must act firmly to express society’s disapproval and denunciation of such conduct.” [ 13 ] At paragraph 33 Justice Whitmore sets out factors which would elevate the sentence as the violence used, the violation of a position of trust and the gravity of the proceedings which were being obstructed.

In that case, the accused had driven and harboured two individuals wanted for attempt murder and was sentenced to 18 months of incarceration. [ 14 ] Of the cases provided to the Court, the two which most closely resembled the facts before me in terms of the acts and moral culpability were R. v. Beam

(1994) O.J.No 1359 and R .v Al-Enzi

(2011) ONSC 1029. [ 15 ] In R. v. Beam (supra) the accused CB encouraged the individual who had killed the victim to clean up the apartment and he assisted in moving the body. He was sentenced to 15 months of jail. In R. v. Al-Enzi , the accused dismantled and discarded a firearm

which had been used in a murder with which his brother was charged. He plead guilty to an offence under s.106(2) of the Criminal Code . He was sentenced to 12 months of incarceration. The Accused [ 16 ] Mr. Dournhou is 18 years of age. He was born in Morocco and had a difficult childhood. His parents were separated when he was four years of age. His mother was sponsored to come to Canada, but he only immigrated here at age six. He has been suspended several times in secondary school and was attending St. Nicholas High School at the time of his arrest.

He had not completed any credits from September 2010 to December 6, 2010. He had an argument with his stepfather in the summer of 2010 and moved out of his mother’s residence and into an apartment paid for by his mother. This is contrary to the conditions of his probation. [ 17 ] He states that he does not drink alcohol to excess and has only consumed marijuana on a few occasions in the summer of 2010. There is some contradiction to this in the PSR, but it is not necessary to resolve. I find that this did not influence his involvement in the offence. [ 18 ] Mr.

Dourhnou acknowledges that he was asked by a friend to clean the car but denies he knew what had happened in the vehicle. He was told that an altercation had taken place following a drug transaction and he did not ask any questions. He accepts that he can’t justify what he did and expressed remorse for his behaviour. [ 19 ] Mr. Dourhnou was on probation for assaults which had occurred in the context of school. He had assaulted a female after he felt she had disrespected him and the male who had come to her defence. ANALYSIS [ 20 ] The aggravating factors in this case are obvious. Mr.

Dourhnou attempted to obstruct the investigation in a homicide. I find his knowledge or lack thereof of what had occurred in the vehicle to be quite suspect given the intensity of the media coverage of this occurrence and the state of the vehicle. However, given that the Crown has accepted this plea to the offence of attempting to obstruct justice and not that of accessory after the fact of a homicide, I am prepared to accept the accused’s version as to his state of knowledge. The fact remains that Mr.

Dourhnou was quite willing to accept to help out a “friend” who was involved in an altercation by cleaning out potential evidence. I do not find that the method was sophisticated, but I do find that it was deliberate and planned. The vehicle was positioned close to his residence, he was in possession of the keys, he met up with someone who brought cleaning supplies, and this was done at 2:00 a.m. [ 21 ] Mr. Dourhnou was acting for a friend in order to defeat a criminal investigation, by destroying evidence. The relevance and importance of DNA evidence is a well known fact in contemporary society.

It was obvious by the state of the vehicle that a serious altercation had taken place. In my view, this is more serious than “harbouring” a fugitive or encouraging another to clean up as those acts only indirectly interfere with an investigation. Police eventually found the fugitive, and the encouragement does not necessarily lead to destruction of evidence. This did. This was

an act meant to subvert justice and carries high moral culpability. [ 22 ] The fact that he was on probation at the time is an aggravating factor. The fact that his mother not only knew, but in fact supported the breach of probation is of concern. Courts impose conditions of residency with a parent in order to ensure some guidance to youthful offenders who seem to be adopting pro-criminal attitudes. By leaving the mother’s residence, Mr. Dourhnou was no longer supervised at all. The result speaks for itself. [ 23 ] There are a number of mitigating circumstances for me to consider.

The accused is youthful and has a limited criminal record. He has entered a plea of guilty to this charge at an early stage of proceedings. This obstruct justice did not involve any violence or threats of violence. There is no suggestion that Mr. Dourhnou was involved in the incident which led to the death of Mr. Ghiasvand.

Ultimately the fact that some DNA evidence was obtained from the vehicle attenuates the impact of his actions on the investigation and prosecution for the serious offence. [ 24 ] The accused has been in pre-disposition custody for 135 days and is entitled to credit for 135 days. I attribute 35 days of predisposition custody to the breach of probation. The remaining 100 days will be reflected on the obstruct charge. In addition I impose 12 months of incarceration to be followed by 3 years of probation. The conditions of probation will be as follows: (

A) Report to the probation office within 48 hours of release from custody; (

B) Reside at an address approved by your Probation Officer; (

C) Not to associate with anyone known to you to have a Criminal Record or a Young Offender Record, save and except for your participation at school or employment; (

D) Attend school on a full time basis and provide proof of enrolment and aca- demic records to your Probation Officer as directed, or, make efforts to find and maintain suitable full time employment and provide proof of such to your Probation Officer, or; a combination of the two; (

E) Abstain completely from the purchase, possession, consumption of illicit drugs; (

F) Attend for any assessment, counselling or programming deemed necessary by your Probation Officer and complete said assessment, counselling or programming to his/her satisfaction. Released: April 21, 2011 __________________________________ The Honourable Justice C.S. Dorval