r v. Johra KALEKI, 2016 QCCQ 1276

R. c. Kaleki JP2080 Tentative de meurtre. Peine. 2016 QCCQ 1276 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-041677-102 DATE: February 23, 2016 ______________________________________________________________________ BY THE HONOURABLE YVES PARADIS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

Johra KALEKI Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ INTRODUCTION [ 1 ] On March 10, 2015, Mrs Johra Kaleki was found guilty of attempt to commit murder.

The victim is her daughter. [ 2 ] For a complete understanding of the relationship between the victim and her mother, the atmosphere in their family and the events surrounding the offence, the Court refers to its judgment on verdict. [ 3 ] Before the offence, relations between the victim and Mrs Kaleki were always good. [ 4 ] In the days preceding the offence, for the first time in her young life, the victim went to nightclubs. She stayed out two nights in a row. Because of her past, Mrs Kaleki is a worrier. She was concerned about the safety of her daughter.

The first night, Mrs Kaleki called her daughter on numerous occasions. She went to the victim’s friend’s domicile to look for her daughter. She even went with her husband to the police station to report her daughter missing. On the second night, her husband made up a story that their daughter went out with his permission in order to calm Mrs Kaleki. His story did not appease Mrs Kaleki. [ 5 ] When her daughter came home early in the morning, Mrs Kaleki asked her husband to be alone with their daughter. [ 6 ] Mrs Kaleki used a cleaver, wounded the victim on the nape of her neck and then struck again.

The victim was seriously injured. As the victim tried to leave the family home, Mrs Kaleki tried to choke her. T he victim [ 7 ] The victim was nineteen years old when the offence was committed. [ 8 ] In 2010, she signed a victim impact statement [1] . She also testified on sentence. [ 9 ] She suffered injuries which required surgery. Tendons of her right hand were cut. Stitches were needed for a wound behind her right ear. She was hospitalized for eleven days. For a certain period of time, she suffered from a partial disability of her hand and received two or three sessions of physiotherapy treatments.

For a certain time also, she suffered from anxiety. She is now completely healed, physically and mentally. [ 10 ] The victim got married during the proceedings. Mrs Kaleki organized the wedding. The victim is not with her husband anymore. She was welcomed back by her parents who helped her through this situation. She moved back to her parents’ domicile. She is now living with Mrs Kaleki.

[ 11 ] Her parents encouraged her to pursue her education. She has now secured full time employment. [ 12 ] In her testimony, the victim says that her mother, although she does not show any memory of the event, is sorry for what happened and shows remorse. Her mother is the sweetest person she knows. Her mother has always respected her bail conditions. She has never witnessed any violent or aggressive behaviour from her mother since the event. She feels absolutely no fear of her. Her mother is not a danger to anyone. She loves her mother.

Their relationship is even better today than it was before the event. [ 13 ] The victim also gives her opinion on sentence: her mother does not deserve to go to jail. The victim adds that she is devastated thinking that her mother could go to prison. She is the rock of the family. Nobody can take her place. Her youngest sister, who is eleven years old, would be heartbroken if their mother were to be sentenced to jail. [ 14 ] The victim also says that she did not press charges against her mother and did not receive any pressure to testify. T he accused [ 15 ] Mrs Kaleki is forty-four years old.

At the time of the event, she was thirty-eight years old. [ 16 ] She has been married to Mr Ebrahim Ebrahimi for twenty-seven years. They have four daughters. The victim is the eldest. [ 17 ] She does not work outside the house. She takes care of the children and the household. She is a devoted mother. [ 18 ] She has no previous convictions. [ 19 ] She was arrested on the premises on June 13, 2010. She was released under conditions on August 19, 2010.

She was kept in custody for sixty-seven days. [ 20 ] There is no evidence of any failure to comply with the bail conditions. [ 21 ] Mrs Kaleki’s sister and brother wrote letters [2] vouching for her good character as a human being and a mother. [ 22 ] A close friend of Mrs Kaleki tells the Court that Mrs Kaleki is a loving and caring person, well respected in the community. She is also a good mother. Mrs Kaleki helped her to establish herself in Montréal when she arrived thirteen years ago. Mrs Kaleki looked after her son, even after the event. [ 23 ] Mr Ebrahimi testifies again on sentence.

Mrs Kaleki runs their house. Three of their children are still living with their parents. Two are adults. The youngest has a very close relationship with her mother. She worries a lot about what could happen to her mother. [ 24 ] Mr Ebrahimi is still looking for answers concerning the event. The woman he saw on that day is not his wife as he knows her. Without any doubt, Mr Ebrahimi feels that his wife does not represent a danger to anyone. [ 25 ] In June 2010, the Director of Youth Protection became involved in the situation of the three other children of the family.

After Mrs Kaleki’s release on bail, the Director arranged and supervised the visitation between these children and Mrs Kaleki. On August 21, 2010, the Director decided that, given the evolution of the family situation and the assessment of the children’s needs, the children were not in danger and that youth protection services were no longer necessary [3] . POSITION OF THE PARTIES [ 26 ] The prosecution seeks a period of incarceration of ten years. [ 27 ] The defence submits that a suspended sentence would be appropriate given the particular circumstances of this case.

THE LAW [ 28 ] 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 [4] . [ 29 ] This purpose is met by the imposition of just sanctions that reflect the sentencing objectives: denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation, promotion of a sense of responsibility in the offender and acknowledgment of the harm caused to the victim and to the community [5] . [ 30 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [6] . [ 31 ] A court that imposes a sentence shall take into consideration the relevant aggravating or mitigating circumstances relating to the offence or the offender [7] . [ 32 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [8] . [ 33 ] Proportionality is determined both on an individual basis, that is, in relation to the accused and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

Individualization and parity of sentences must be reconciled for a sentence to be proportionate [9] . [ 34 ] Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. It also seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the

harm they caused. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary [10] . [ 35 ] General ranges of sentences for particular offences encourage greater consistency between sentencing decisions in accordance with the principle of parity. But these ranges are guidelines rather than hard and fast rules.

A judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing [11] . [ 36 ] The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case [12] . [ 37 ] The offence of attempt to commit murder is amongst the most serious offences.

Every person who attempts to commit murder is liable to imprisonment for life [13] . [ 38 ] In Roy v. R. [14] , the Quebec Court of Appeal studied the range of sentences for the offence of attempt to commit murder in the context of domestic violence.

Their study outlines three categories : 1- sentences of less than seven years, mostly varying from four to six years, in cases in which rehabilitation is foreseeable or circumstances such as a guilty plea, no prior convictions or less severe consequences are present [15] ; 2- sentences from eight to fourteen years in cases in which there is the use of firearms, previous violence, psychological problems, particular brutality or serious consequences; 3- sentences over fifteen years in cases where aggravating circumstances are present such as repetitive violence, previous threats, harassment, planning, extreme brutality, absence of remorse or risk of re-offence. [ 39 ] In R. v.

Martin [16] , the Court of Appeal discussed a range of sentences for attempted murder offences varying from eighteen months to eight years. Even in cases concerning accused with serious mental problems, the sentence should not be lower than one year [17] . ANALYSIS [ 40 ] Mrs Kaleki is a beloved woman and a devoted mother. The offence is totally out of character. [ 41 ] The assault on the victim was violent.

Her father, most probably, saved her life. [ 42 ] We can find explanations for Mrs Kaleki’s behaviour in the testimony of Dr Watts, particularly in the following extracts: - it’s explained by the context of her upset and distress at being confronted with her daughter [ … ] who’s (sic) behaviors had escalated in a very short period of time [ … ] . - [ … ] her husband was upset and she had never seen him this upset and she kept a lot of these difficulties from him [ … ] . - in a sense that it’s consistent with an anger motive.

It’s consistent with a boiling over, a frustration at the situation [ … ] . [18] [ 43 ] These explanations are consistent with Mrs Kaleki’s statement to Mr Bertand after her arrest [19] : Detective-Sergeant Alex Bertrand: Okay, I think … I think that something snapped. And, you know, that’s why I asked you some questions regarding your values and all that, because I want to understand, because I frankly have a hard time understanding all this. I have all my opinions, you know … you know … is it that, you know, something snapped and you lost control?

Johra Kaleki: Yes, I did. [ 44 ] Mrs Kaleki’s intention was to kill the victim. Consequently, her moral blameworthiness is significant. M itigating circumstances [ 45 ] Amongst the mitigating circumstances are the facts that Mrs Kaleki has the support of her family, has no previous convictions, has no history of violence, has not committed another offence since and that the risk of re-offence is almost non existent. [ 46 ] The offender's remorse and regret clearly are mitigating factors [20] .

Mrs Kaleki had expressed regret to the victim and shown remorse. [ 47 ] Compliance with bail conditions for a certain period of time prior to sentence may constitute a mitigating circumstance [21] . Mrs Kaleki was arrested on the premises following the assault on June 13, 2010, some five years and eight months ago. She was released on bail on August 19, 2010. Since that day, she has been required to comply with conditions set forth in an undertaking. During that period, she was unable to visit members of her family in Saudi Arabia and a close friend in the United States.

She was not able to visit another of her daughters who has also lived in the United States since her marriage in September 2015. During the same period, her contacts with her children were supervised, although the conditions were modified over time to be less demanding. This should be taken into account. [ 48 ] Although publicity is an ordinary occurrence in our justice system and for the offender being stigmatized is an inevitable feature

of the criminal justice process, adverse publicity can be a mitigating factor [22] . Media articles concerning the case were produced [23] . Many refer to an “honour crime”. Mr Ebrahimi testified concerning the impact on his family of being associated with such a crime. Obviously, a mother attacking her daughter with a cleaver will catch public attention. It is difficult to evaluate the impact of such a label, but we can assume that there was some negative effect on Mrs Kaleki and her family. [ 49 ] The victim is now living with her mother at the family residence.

She says that their relationship has never been better. She forgives her mother and asks for clemency. An adult victim's act of forgiveness is a relevant mitigating factor [24] . However, in any case in which a victim argues for a lesser sentence, the Court must be alert to the possibility that the victim is being pressured by the accused or others to take such a position, and this is a particular concern where the victim is a member of the accused’s family [25] .

In the present case, no such pressure seems to exist. [ 50 ] Nevertheless, considering that sentencing an accused has a societal purpose which goes beyond the victim and the accused, the opinion of the victim on sentence does not discharge the Court from the responsibility of determining the appropriate sentence [26] .

A ggravating circumstances [ 51 ] The fact that the victim is Mrs Kaleki’s daughter [27] and the use of a weapon, more than once, are aggravating circumstances. [ 52 ] The assault was not premeditated but it was not a spontaneous reaction on the spur of the moment: Mrs Kaleki went upstairs to get the knife, she hid it under her t-shirt, she asked her husband to leave them alone and she closed the door. She then abused her position of trust by kissing her daughter and asking her to fall asleep [28] .

Even after being stopped by her husband, she chased the victim and tried to choke her. [ 53 ] The fact that, without the father’s intervention, the injuries suffered by the victim would probably have been more serious [29] cannot be considered as an aggravating circumstance. C onclusions [ 54 ] The prosecution insists on two cases to support its position: R. v. Postma [30] and R. v.

Nabavi [31] . [ 55 ] In Postma , the physical, emotional and psychological impacts on the victim were devastating to all aspects of her life, the accused discarded incriminating evidence and there was no evidence to properly assess the ongoing risk the accused posed to the public. Mrs Kaleki’s daughter is now completely healed and Mrs Kaleki poses no risk to the public.

More significantly, the victim and Mrs Kaleki are now living together. [ 56 ] In Nabavi , the attack was premeditated, the victim suffered extremely serious injuries with lasting consequences, the victim and her daughter suffered serious psychological harm. The consequences in this case are not comparable to the present case. [ 57 ] The defence insists on Mrs Kaleki’s amnesia and her altered state of mind at the moment of the offence. On those issues, this Court refers to the judgment on verdict: the brain was then recording and Mrs Kaleki was not suffering from any mental illness.

Mrs Kaleki’s state of mind at the time was similar to frustration, anger and rage. Still, it was totally out of character. This rage impaired her judgment. [ 58 ] The defence refers to decisions concerning the offence of manslaughter. The relevancy of these decisions is limited since, in these cases, the accused has no intent to kill contrary to the offence of attempt to commit murder. The level of the offender’s moral blameworthiness is not the same. Mr Justice Lamer of the Supreme Court of Canada wrote in R. v.

Logan [32] : 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. [ 59 ] The severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender [33] . [ 60 ] Without ignoring the other objectives, denunciation and deterrence are paramount in cases of attempted murder. [ 61 ] In R. v.

C.A.M. , the Supreme Court of Canada said about denunciation: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [34] [ 62 ] Specific deterrence may not be necessary to prevent Mrs Kaleki from re-offending, but general deterrence, using sentencing to send a message to discourage others from offending, is relevant. [ 63 ] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the present case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society [35] .

[ 64 ] Even where a term of imprisonment is necessary, it should be the lightest possible sanction in the circumstances. [ 65 ] A term of imprisonment will unfortunately deprive the younger daughter of her mother. This is not exceptional. Fortunately this young girl can count on the support of her father and two adult sisters who are living with her. [ 66 ] In R. v. Boutin [36] , the Quebec Court of Appeal varied, from nine years to five years, the sentence of the accused who pleaded guilty to a charge of attempted murder. The accused had served four months of pre-sentence custody.

Suffering from alcoholism, jealousy and depression, the accused stabbed his wife who intented to divorce him. The physical intervention of the accused’s teenager saved the life of the victim. After the tragedy, the accused behaved well and improved his attitude.

Since the accused seemed determined to succeed in his rehabilitation, the severity of the sentence imposed by the trial judge would have discouraged him in his efforts. [ 67 ] Considering the gravity of the offence, all the circumstances, including the aggravating and mitigating circumstances, and the fact that Mrs Kaleki poses little or no risk to society, a sentence of three years is appropriate. [ 68 ] The time spent in pre-sentence custody, sixty-seven days, should be taken into account [37] . A credit of one hundred days is accorded to Mrs Kaleki [38] .

For these reasons, the Court : CONDEMNS Mrs Johra Kaleki to imprisonment for a term of two years and two hundred sixty-five days; PROHIBITS Mrs Kaleki from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition for life and from possessing any other firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of ten years after her release from imprisonment; AUTHORIZES the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Mrs Kaleki; DISPENSES Mrs Kaleki from paying the victim surcharge. __________________________________ Yves Paradis, J.C.Q.

Me Anne Gauvin For the prosecution Me Isabel J. Schurman Me Michèle Lynn Meleras For Mrs Kaleki Date of hearing: November 2, 2015 [29] Zugravescu v. R. , 2015 QCCA 914 , paragraph 31 ; application for leave to appeal dismissed, [2015] S.C.C.A. No. 323 .