IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Khudhair, |
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2023 BCSC 1175 |
Date: 20230706
Docket: X084500; X084812
Registry: New Westminster
Rex
v.
Ali Rafid Khudh Khudhair
Restriction on publication: A publication ban has been imposed under s. 486.5(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a witness referred to in this judgment. This publication ban applies indefinitely unless otherwise ordered.
Before: The Honourable Justice MacNaughton
Oral Reasons for Sentence
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Counsel for the Crown: |
M.P. Bussanich |
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Counsel for the Accused: |
J. Oppal |
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Place and Date of Trial/Hearing: |
New Westminster, B.C. April 12 and 14, 2023 |
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Place and Date of Judgment: |
New Westminster, B.C. July 6, 2023 |
Table of Contents
Robbery and Use of an Imitation Firearm (File X084812-2)
Positions of the Crown and the Defence
Objectives and Principles of Sentencing
Robbery with an Imitation Weapon
Cases Relied on by the Defence
Aggravating and Mitigating Circumstances
[1] Ali Rafid Khudh Khudhair pled guilty to the following two criminal charges arising from events on March 3, 2021, at a residence in Burnaby, British Columbia:
· Count 1, robbery of Douglas Sheh and Manh Van Nguyen, contrary to s. 344(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 [Code]; and
· Count 2, use of an imitation firearm while committing the indictable offence of robbery, contrary to s. 85(2) of the Code.
[2] Mr. Khudhair also pled guilty to the May 4, 2021, manslaughter of Keryane Arsenault, contrary to s. 236(a) of the Code.
[3] My task as the sentencing judge is to impose a fit sentence on Mr. Khudhair by applying the sentencing principles set out in the Code and the cases that have considered those provisions. The purpose of imposing a sanction on an offender is to protect society and contribute to respect for the law, and the maintenance of a just, peaceful, and safe society.
[4] The primary objectives of sanctioning criminal behaviour are denunciation; specific and general deterrence; the separation of offenders from society when necessary; rehabilitation; reparations; the promotion of a sense of responsibility in the offender; and acknowledgment of the harm done to the victims and the community. In this case, the primary objectives are denunciation and deterrence.
[5] In these reasons, I will discuss the circumstances of the offences and Mr. Khudhair before turning to the applicable law, and aggravating and mitigating circumstances. I will then apply the law and conclude with my sentence.
[6] The circumstances of the three offences are set out in an agreed statement of facts, marked as Ex. 1 at this sentencing hearing. It sets out the following facts.
[7] On March 3, 2021, Mr. Sheh was hosting friends to play poker at his condo at 906–5611 Goring Street, Burnaby, B.C. Participants paid $300 each to play. Mr. Sheh had a video camera in the living room of his apartment, and it captured events at and around the poker table.
[8] Mr. Sheh’s girlfriend and four of his friends were present and playing poker. Among them was Mr. Nguyen.
[9] Mr. Khudhair and Ange Hatot were invited to Mr. Sheh’s poker game through a mutual friend. Both sat at the poker table; Mr. Khudhair was a spectator, and Mr. Hatot played poker. After playing for about an hour and a half, Mr. Hatot lost all of his chips. He and Mr. Khudhair left the table and went outside on the balcony to smoke cigarettes.
[10] At about 11:20 p.m., Mr. Khudhair and Mr. Hatot returned to sit at the poker table. Mr. Hatot reached into the front of his pants, pulled out a handgun, and “racked” the action. Seconds later, Mr. Khudhair also reached into his pants, produced a firearm, and “racked” the action. They waived their handguns around and pointed them at the others in the room before telling them to place their mobile phones on the table and lay face-down on the floor. They all did.
[11] Mr. Khudhair took Mr. Nguyen’s Rolex watch off his wrist and put it in the pocket of a hoodie he was wearing. He also removed Mr. Sheh’s fanny pack and left it on the floor. Mr. Khudhair told Mr. Sheh to get up, who got up to his knees. Mr. Khudhair demanded money. Mr. Khudhair struck Mr. Sheh in the head twice causing Mr. Sheh to fall over and collide with a chair. Mr. Sheh grabbed a blue envelope that was in the fanny pack from which he gave Mr. Khudhair approximately $1,500 in cash. Mr. Khudhair placed the cash on a nearby chair.
[12] Mr. Khudhair directed Mr. Sheh to the bedroom where Mr. Khudhair repeatedly told him that he was going to kill him and demanded more money. Mr. Khudhair told Mr. Sheh to open his safe. Mr. Sheh did so and gave Mr. Khudhair approximately $10,000 from the safe. Mr. Khudhair demanded more money and struck Mr. Sheh in the face with the handgun.
[13] Mr. Sheh grabbed a knife from the counter, slashed Mr. Khudhair’s face, and pushed him out of the bedroom door into the living room. Mr. Sheh closed and locked the door.
[14] While Mr. Khudhair and Mr. Sheh were in the bedroom, Mr. Hatot grabbed the cash from the chair and poker table and placed it in his pants pocket. Within seconds of Mr. Khudhair leaving Mr. Sheh’s bedroom, he and Mr. Hatot left the apartment.
[15] Mr. Sheh suffered a black eye, a cut cheek, and a sore neck as a result of his interaction with Mr. Khudhair.
[16] On May 4, 2021, Ms. Arsenault and her partner resided in a three-storey townhouse at 161 A Street in Surrey (“Residence”). The ground-floor entry of the Residence leads to a landing and a full flight of stairs up to the main floor that has a kitchen, a dining area, and a living room. Another set of stairs leads up to the upper floor that has three bedrooms and a bathroom. A floor plan of the upper floor was attached to the agreed statement of facts.
[17] Ms. Arsenault was a sex worker who advertised her services on the Leolist.cc website. She hosted clients at the Residence.
[18] Between 7:59 p.m. and 8:43 p.m., Ms. Arsenault and Mr. Khudhair exchanged text messages. He asked if she was available, and she responded that she was. Ms. Arsenault provided the address to the townhouse complex, and they agreed that Mr. Khudhair would arrive in 30 minutes. At 8:30 p.m., Mr. Khudhair texted that he had arrived, and Ms. Arsenault provided him the unit number to the Residence. Mr. Khudhair could not find it, and Ms. Arsenault provided directions. The last text message between them was sent at 8:43 p.m.
[19] At 8:51 p.m., Ms. Arsenault called 911 from her mobile phone. The transcript of the call is as follows. “C” denotes the 911 call taker, “F” denotes Ms. Arsenault; and “M” denotes Mr. Khudhair:
C: 911 do you need police
F: Hi.
C: ... fire, ambulance?
M: No no no.
F: There’s a no, (INAUDIBLE) there's a guy with a gun in my house.
C: What city, Surrey? Is it Surrey?
M: (INAUDIBLE).
F: No I’m go-, I'm sorry.
C: One moment ma’am, stay on the line.
[RECORDING ENDS ABRUPTLY]
[20] The partner was aware that Ms. Arsenault had arranged for a client to attend the Residence. When Mr. Khudhair arrived, the partner was in another bedroom fixing a bed. About ten minutes after Mr. Khudhair arrived, the partner heard strange sounds and whining coming from the other bedroom. He became concerned and went to check on Ms. Arsenault.
[21] The partner got to the other bedroom and saw Mr. Khudhair and Ms. Arsenault in the room. Mr. Khudhair was holding a handgun. The partner positioned himself between Mr. Khudhair and Ms. Arsenault.
[22] At 8:52 p.m., Ms. Arsenault started recording a video of the events on her iPhone.
[23] The partner tried to push Mr. Khudhair out of the bedroom. Mr. Khudhair yelled at the partner to get back. Mr. Khudhair backed out of the bedroom, and the partner followed him. Mr. Khudhair started to back down the stairs, while the partner continued to move toward him. Mr. Khudhair fired a single shot.
[24] Ms. Arsenault followed the men out of the bedroom to the hallway. The bullet fired by Mr. Khudhair passed through the soft tissue of her right forearm, entered the right side of her chest cavity between the third and forth ribs, passed through the middle and lower lobes of the right lung, and exited through the right sixth rib close to the spinal column. The bullet came to rest in the door jamb of the bathroom door.
[25] The partner chased Mr. Khudhair down the stairs and out of the Residence.
[26] At 8:52 p.m., Christopher Thiessen called 911. He saw the partner and Mr. Khudhair outside and heading into the cul-de-sac at the north end of 161A Avenue. The partner was yelling “call the police” because Mr. Khudhair shot his girlfriend. Also, at 8:52 p.m., Fatima Shamim called 911. She saw the partner and Mr. Khudhair outside. Mr. Khudhair was holding a handgun. Mr. Khudhair was headed toward Tynehead Park, and the partner was chasing him. The partner was yelling for someone to call the police.
[27] During the chase, Mr. Khudhair threw the firearm toward some bushes. The partner caught up to Mr. Khudhair, wrestled him to the ground, and punched and kicked him.
[28] Police arrived quickly, and the partner and Mr. Khudhair were arrested in the brush area north of the cul-de-sac.
[29] Police found Mr. Khudhair’s firearm in the bushes. It was a 9 mm calibre Norinco Model NP34 semi-automatic pistol. The serial number had been effaced. The firearm held a ten-round magazine with nine rounds in it. A spent cartridge was found in the chamber of the firearm. The firearm is a restricted firearm within the meaning of s. 84(1) of the Code.
[30] Photographs depicting the upper floor landing of the Residence, the door jamb of the bathroom door, the bullet in the door jamb, the handgun where it was located in the bushes, and the handgun and its model number are attached to the agreed statement of facts.
[31] Mr. Khudhair was not licenced to possess firearms, and the firearm was not registered to him.
[32] Police located Ms. Arsenault lying in a fetal position in a pool of blood on the landing at the top of the first flight of stairs. She was semi-conscious but not responsive. She was transported to Royal Columbian Hospital where she underwent surgery. Attempts to save her life were unsuccessful, and she was pronounced dead at 11:36 p.m.
[33] A post-mortem examination revealed that Ms. Arsenault died as a result of a single gunshot wound. No bullet or fragments were found in her body.
[34] Both Mr. Sheh and the partner attended the sentencing hearing.
[35] Mr. Sheh addressed the Court and spoke about the effects of the robbery on his life, including the physical injuries he suffered during it and the ongoing psychological impact. He said the events have haunted him every day since; he has been unable to forget what happened and is constantly on-guard. He has changed his life and is now much more conscious of possible threats to his personal safety, even when in his home. He was depressed and did not feel like leaving his home for a long time afterwards. The fact that he was assaulted and robbed in his own home forced him to move. He said that his joy and happiness were taken from him. There was stress in his relationship with his girlfriend, who was in the apartment when the robbery occurred.
[36] It is clear from the agreed statement of facts, and in Mr. Sheh’s victim impact statement, that the robbery caused him physical injuries and has had an ongoing psychological impact.
[37] The partner attended the sentencing hearing, but, at his request, his victim impact statement was read to the Court by Crown counsel. The partner was visibly emotional while it was being read. He described Ms. Arsenault’s death as “about the darkest and most bitter experience of his life.” He described Ms. Arsenault as a person who was passionate and full of energy and hope. She was the centre of his life, and he misses the “sound of her voice and the ring of her laugh”. He said that he is depressed, suffering from post-traumatic stress disorder and living in a state of grief. He continues to light candles nightly in her memory. The partner testified at the preliminary inquiry and was cross-examined. The death of Ms. Arsenault and its aftermath have been very difficult for him.
[38] Mr. Khudhair is 26 years old and a permanent resident of Canada. He was 24 at the time of the offences to which he pled guilty.
[39] Mr. Khudhair was born in Baghdad, Iraq, and, until 2010, he lived there with his father, Rafid Khudhair Abbas, and his mother, Rasha Mahmud. He has four younger brothers, ranging in age from 12 to 23, and a seven-year-old younger sister.
[40] Both parents swore affidavits that were filed in support of Mr. Khudhair’s application for judicial interim release. They were marked as exhibits on this sentencing hearing.
[41] They explain the family’s circumstances prior to arriving in Canada.
[42] Mr. Abbas owned and operated a small convenience store/market in Baghdad. In times of financial hardship, he accepted assistance from the American military. As a result, he and his family were the targets of anti-American militia. Mr. Abbas and his family were threatened and subjected to acts of intimidation. Their home was shot at and torched, their business was torched, and family members were threatened with violence and death. In fear of their safety and lives, the family fled to Syria in 2010.
[43] In Syria, Mr. Abbas continued in the same type of business. Mr. Khudhair attended high school in Syria for several years, but in or about 2015, after violence and civil war came to Syria, and when Mr. Khudhair was about 18 years old, the family fled to Canada as refugees.
[44] Mr. Khudhair’s other family members have become Canadian citizens. He is the only exception.
[45] Mr. Khudhair’s father works part time, two days a week, as a prep cook and is in receipt of disability payments. His mother is a full-time homemaker. Although they have no savings, they also have no debts.
[46] At the time of the offences, Mr. Khudhair divided his time between his family’s home in Delta, B.C. and his then-girlfriend’s residence in Coquitlam, B.C.
[47] Mr. Khudhair has little formal education. After his few years of high school in Syria, from late 2018 until early 2020, he enrolled at lnvergarry Adult Education Centre in Surrey, B.C. He stopped attending as a result of the COVID-19 pandemic. While in custody, he has enrolled in English and Mechanics. He speaks English, and, although an interpreter was provided for him at the sentencing hearing, he only rarely required assistance.
[48] Prior to his arrest on these offences, Mr. Khudhair had a limited criminal history in Canada. It consists of one court file with respect to events that occurred on June 28, 2018. On November 15, 2019, he pled guilty to assault, contrary to s. 266 of the Code, and possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Code. He was conditionally discharged and placed on probation for two years. He was on probation at the time of these offences.
[49] Since coming into custody, Mr. Khudhair pled guilty to a January 4, 2021, breach of probation and, on October 24, 2022, was sentenced to one day in jail. He also pled guilty to the offence of driving while prohibited and was sentenced to a 12-month driving prohibition and a $1,000 fine on September 20, 2022.
[50] During the sentencing hearing, Mr. Khudhair addressed the Court and the two victims who attended. He turned and faced the two victims and sincerely apologized to them and to the Court. He also apologized to his mother and brother, who were both at the sentencing hearing to support him. He acknowledged that he could not change what he had done or its effects, but expressed how sorry he was. Despite being challenged by Mr. Sheh and the partner about his sincerity, Mr. Khudhair repeated his apology, speaking directly to them. I accept that Mr. Khudhair is genuinely sorry for the impact of what he did.
[51] The Crown and the defence did not make a joint sentencing submission, but they agreed in some of their positions. Both agreed that a lengthy custodial sentence is appropriate and that the paramount sentencing considerations in this case are deterrence and denunciation. Rehabilitation is also a consideration in light of Mr. Khudhair’s age and relatively limited criminal record.
[52] Both the Crown and the defence agree that a fit and appropriate sentence with respect to the offence of robbery is four years and that, by operation of s. 85(4) of the Code, a sentence of one year, to be served consecutively, is fit and appropriate for Mr. Khudhair’s use of an imitation firearm while committing an indictable offence.
[53] Both the Crown and defence agree that as of April 12, 2023—the date of the sentencing submissions—Mr. Khudhair had been in custody for 709 days, one of which he used with respect to his one-day sentence for breach of probation. The remaining 708 days, at the standard ratio of 1.5:1 for pre-sentence custody, amounts to 1,062 days or almost two years and 11 months credit for time served.
[54] Both the Crown and defence agree that the sentences to be served by Mr. Khudhair should be consecutive.
[55] The Crown and the defence disagree about the fit and appropriate sentence for the manslaughter offence.
[56] The Crown submits that eight to ten years is a fit and appropriate sentence for manslaughter. As a result, the Crown submits that Mr. Khudhair’s global sentence should be between 13 and 15 years’ imprisonment, reduced to between 11 and 13 years after applying the totality principle.
[57] The defence submits that, ordinarily, a fit and appropriate sentence for the manslaughter offence would be seven years’ imprisonment. As a result, the defence submits that Mr. Khudhair’s global sentence should be 12 years, reduced to eight years after applying the totality principle.
[58] The defence asks me to consider Mr. Khudhair’s background, which involved being raised in a warzone and having to flee two war-torn countries. The defence also submits that due to the COVID-19 pandemic, Mr. Khudhair’s pre-sentence custody has been served in more onerous conditions and asks me to take that into account in mitigation of his global sentence.
[59] The Crown submits that all three offences are primary designated offences for the purposes of a DNA order and all three trigger a firearms prohibition under s. 109 of the Code for a minimum of ten years. In the circumstances of this case, the Crown is seeking a lifetime firearms prohibition under s. 109 of the Code. The defence did not dispute these submissions.
[60] The Supreme Court of Canada described sentencing as one of the most delicate stages of the criminal justice process: R. v. Lacasse, 2015 SCC 64 at para. 1. It is highly discretionary and specific to the circumstances of the offence and the offender.
[61] Section 718 of the Code sets out the two fundamental purposes of sentencing: 1) to protect society, and 2) to contribute to respect of the law and the maintenance of a just, peaceful, and safe society through the imposition of sanctions. The sanctions are governed by a number of objectives, also set out in s. 718, including principles of denunciation, deterrence, and rehabilitation.
[62] Section 718.1 of the Code states the fundamental principle of sentencing: proportionality: R. v. Friesen, 2020 SCC 9 at para. 30; R. v. Parranto, 2021 SCC 46 at para. 10. Proportionality requires me to consider both the gravity of Mr. Khudhair’s offences and his moral blameworthiness: R. v. Bissonnette, 2022 SCC 23 at para. 50, citing R. v. Nasogaluak, 2010 SCC 6 at para. 42.
[63] The gravity of an offence concerns the harm caused by the offender to the victim and society and its values: Lacasse at para. 130. In this case, Mr. Khudhair is being sentenced for manslaughter and robbery involving the use of an imitation firearm. Manslaughter is one of the most serious criminal offences, as it results in the death of an individual, which, in turn, imposes harm on society. This is reflected in the mandatory minimum sentence of four years for manslaughter with a weapon: R. v. Penner, 2023 BCCA 191 at paras. 90–91.
[64] Robbery, with the use of a firearm, is also a very serious offence, particularly where, as here, it occurs in a victim’s home.
[65] The Crown relies on R. v. Badhesa, 2019 BCCA 70, for its discussion of moral blameworthiness in the context of manslaughter. The court said:
[24] … [M]anslaughter encompasses conduct which has caused the death of another person and falls short of intentional killing. It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attach along a continuum within that spectrum. A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination. Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberation involved, the existence of provocation and the element of chance involved in the resulting death: R. v. Plowman, 2015 BCCA 423 at para. 40, citing R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 80; R. v. Stone, [1999] 2 S.C.R. 290 at para. 247.
[25] The purpose of the balancing exercise is to ensure that the sentence fits the degree of the offender’s moral fault for the harm done by the unlawful act underlying the offence of manslaughter. The measure of the fitness of a sentence lies in the principle of proportionality: a sentence must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. If a sentence for manslaughter passes this fundamental test it is a fit sentence. If it does not, it is unfit: Stone at para. 233; R. v. LaBerge, 1995 ABCA 196 at paras. 6–11; R. v. Draper, 2010 MBCA 35 at para. 7.
[26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment. Given that wide range, the judge must carefully determine the degree of an individual offender’s moral culpability and craft a sentence that accounts adequately for the unique constellation of relevant factors present in a case. The task is complex and sometimes factors unrelated to where the unlawful act falls on the “near accident” to “near murder” spectrum nonetheless bear on the degree of the offender's moral culpability. Where an offender falls on the spectrum of individual moral culpability is a question of fact. Absent palpable and overriding error, that finding is entitled to deference: Plowman at paras. 39, 44–45, citing R. v. Richer, 2005 BCCA 3; R. v. Engebretsen, 2016 BCCA 182 at paras. 9–12, 17.
[66] Sentences for manslaughter generally fall within a range of four to 15 years’ imprisonment. Only rare cases, involving special circumstances, warrant a sentence outside that range: Badhesa at para. 49, citing R. v. Green, 2001 BCCA 672 at para. 10.
[67] In R. v. Deo, 2022 BCSC 1835, citing earlier cases, Justice Watchuk discussed moral blameworthiness for manslaughter as “existing on a sliding scale”: para. 104. At the higher end of the scale are those offenders who commit the most aggravated offences, and at the lower end are those offenders from good backgrounds, who have rehabilitative prospects and commit the offence in the least morally blameworthy circumstances: Deo at para. 104, citing R. v. Huth, 2014 BCSC 570 at para. 6.
[68] I must also consider the additional sentencing principles, outlined in s. 718.2 of the Code. These include any aggravating and mitigating circumstances relating to the offence or the offender (s. 718.2(a)), as well as the principles of parity (s. 718.2(b)), totality (s. 718.2 (c)), and restraint (s. 718.2(d)–(e)). Each of these principles have been applied in a number of cases.
[69] Parity requires that any sentence I impose is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Totality ensures that the total sentence I impose is not excessive and does not extinguish the rehabilitation potential of the offender: R. v. Angelis, 2016 ONCA 675 at para. 51, leave to appeal to SCC ref’d 37288 (23 February 2017); see also R. v. Berry, 2014 BCCA 7 at para. 55. Restraint requires me to consider the possibility that a less restrictive sanction would attain the same sentencing objectives as a more restrictive sanction: R. v. Johnson, 2003 SCC 46 at para. 28.
[70] Despite the guidance provided in the sections in the Code, there is no mathematical formula to be applied when determining what is a fit and appropriate sentence. Each case is entirely fact specific.
[71] Neither the Crown or the defence referred me to any directly analogous cases. Unique to the robbery charge is the fact that the offence occurred in Mr. Sheh’s home, but did not occur during a home invasion, which is more often the scenario.
[72] Before dealing with the overall aggravating and mitigating circumstances, I will assess Mr. Khudhair’s moral blameworthiness as it relates to the manslaughter offence. In doing so, I will consider the factors set out in Badhesa at para. 24.
[73] With respect to Mr. Khudhair’s mental state, as can be seen in the video of the events, Mr. Khudhair never intended to engage Ms. Arsenault’s sexual services. He arrived some short time after their last text exchange at 8:43 p.m. and, by the time of Ms. Arsenault’s 911 call at 8:51 p.m., they were still both fully clothed, and Mr. Khudhair had drawn his weapon and was brandishing it. He came to the Residence intending to rob or otherwise take advantage of her. The video recording shows Mr. Khudhair being confronted by the partner and Mr. Khudhair appears frightened. He is trying to retreat from the confrontation he created by backing out of the room.
[74] At one point in the video, the partner can be heard telling Mr. Khudhair to shoot him, but I do not consider that to be provocation.
[75] With respect to Mr. Khudhair’s personal characteristics, there is no evidence that he suffered from mental health or substance abuse issues that would reduce his moral blameworthiness.
[76] With respect to Mr. Khudhair’s intentional risk-taking, he engaged in highly risky behaviour. He attended at the Residence without any idea about its layout. He did not know that it had two flights of stairs to the floor on which the bedrooms were located.
[77] It is not surprising that Ms. Arsenault, as a sex worker working from her home, would have a safety plan in place and help ready. Mr. Khudhair cannot have known that Ms. Arsenault was the only person at the Residence. Mr. Khudhair pulled his gun and, with his finger on the trigger, pointed it at Ms. Arsenault and the partner, while backing out of a room in the unfamiliar Residence. He was backing down a set of stairs. In doing so, he caused the ultimate harm: he killed Ms. Arsenault, an innocent person.
[78] With respect to the normative character of Mr. Khudhair’s conduct, he engaged in calculated criminal behaviour intended to rob or take advantage of Ms. Arsenault. As a sex worker, Ms. Arsenault was one of the most vulnerable members of our society.
[79] With respect to the degree of deliberation involved, there is no evidence that Mr. Khudhair intended to pull the trigger of the gun he brought to the Residence, but there was otherwise a high degree of planning and deliberation with respect to his actions that evening. Mr. Khudhair contacted Ms. Arsenault though a website; he did not know her. They had several text exchanges, as he arranged to come to her Residence to meet her, and he attended with a firearm that he pulled out within minutes of them meeting.
[80] With respect to provocation, there is no evidence that Mr. Khudhair was provoked by Ms. Arsenault. The partner did not provoke Mr. Khudhair, although he can be heard in the video telling Mr. Khudhair to shoot him. The shooting occurred after an interaction with the partner that did not amount to provocation.
[81] With respect to the element of chance involved in the resulting death of Ms. Arsenault, I conclude that there was no element of chance in the circumstances of this case. Mr. Khudhair planned the events. He attended the Residence with a gun that he pulled out; he pointed the gun at Ms. Arsenault and the partner with his finger on the trigger. The chance of someone being killed was highly foreseeable. Mr. Khudhair engaged in highly careless and reckless conduct with the gun.
[82] While Badhesa addressed the factors to be considered in assessing moral blameworthiness in manslaughter cases, those factors also provide a meaningful framework in which to assess Mr. Khudhair’s moral blameworthiness with respect to the offences of robbery and use of an imitation weapon.
[83] With respect to Mr. Khudhair’s mental state, as is clear from the video recorded in Mr. Sheh’s living room, Mr. Khudhair is in complete control of the situation throughout. He and Mr. Hatot had a plan, and they executed it.
[84] I have already set out Mr. Khudhair’s personal circumstances, and I will not repeat them.
[85] With respect to Mr. Khudhair’s intentional risk taking, he brought a firearm to the robbery. Because the Crown has been unable to prove the weapon involved, he was charged with using an imitation weapon. Nonetheless, the victims responded as if they believed the weapon was real. They did what they were ordered to do, including giving up their phones and laying on the ground. When Mr. Khudhair demanded money, Mr. Sheh pulled an envelope of cash out of his fanny pack, and, when ordered to do so under threat, he opened his safe.
[86] With respect to the harm caused, Mr. Sheh was robbed of more than $10,000—a significant sum. Mr. Khudhair caused Mr. Sheh physical and psychological injuries.
[87] The video depicts a violent, terrifying situation, and it is not surprising that Mr. Sheh said it had a lasting emotional impact on him.
[88] With respect to the normative character of Mr. Khudhair’s conduct, he acted far outside normal behaviour.
[89] With respect to the degree of deliberation involved, as can be seen in the video, Mr. Khudhair and Mr. Hatot clearly planned and coordinated their activities that evening. They found a way to be included in the poker game.
[90] They were both texting and may have been communicating with each other. They both went outside on the balcony to smoke cigarettes, and, within seconds of returning to the living room, they both pulled out handguns and “racked” the actions of the guns. They waived their handguns around and told the other participants to put their phones on the table so that they could not call the police. Everyone was told to lie face-down on the floor. Mr. Khudhair removed Mr. Nguyen’s Rolex from his wrist. Mr. Sheh was told to get up, was struck twice in the head, and fell over, colliding with a chair. Mr. Sheh gave Mr. Khudhair about $1,500 from an envelope in his fanny pack. Mr. Sheh was then taken into his bedroom and forced to open the safe. Mr. Sheh gave Mr. Khudhair about $10,000 from the safe and was struck in the face with the handgun when Mr. Khudhair demanded more money. Within seconds of Mr. Khudhair coming out of Mr. Sheh’s bedroom, he and Mr. Hatot left the apartment together. The whole situation was highly planned and deliberate.
[91] Provocation was not a factor in the robbery nor was the element of chance of death.
[92] With respect to the degree of carelessness in Mr. Khudhair’s use of the imitation firearm, the video depicts that it was carelessly handled. After taking it out and waving it at the participants, Mr. Khudhair can be seen moving it from one hand to the other, and the magazine fell out. He picked it up and put it back in the gun. Mr. Khudhair was comfortable handling the gun, and, if it were a real gun with real ammunition, there was a risk that something serious could have happened. In my view, this raises Mr. Khudhair’s moral blameworthiness.
[93] I conclude that, with respect to both offences, Mr. Khudhair demonstrated a high degree of moral blameworthiness. With respect to the manslaughter of Ms. Arsenault, I would describe it as somewhat closer to near murder than near accident: Badhesa at para. 24.
[94] The Crown relies on three cases involving sentencing of accused for manslaughter with a firearm and one case of robbery. In particular, with respect to the manslaughter offence, the Crown relies on R. v. Nguyen, 2017 BCSC 1401, R. v. McPake, 2019 BCSC 1361, and R. v. Chad, 2015 BCPC 422. With respect to the robbery with a firearm offence, the Crown relies on R. v. Weber, 2016 BCCA 279. The Crown frankly acknowledged that the circumstances in the cases it relied on were not directly analogous to those of Mr. Khudhair’s offences, but they were put forward for the relevant principles.
[95] In Nguyen, after a jury trial, Hong Manh Nguyen was acquitted of second-degree murder, but convicted of manslaughter. Hong Manh, who was 57 years old at the time, shot his estranged wife’s boyfriend five times and killed him in the presence of his estranged wife and his young children. There had been several prior physical altercations between Hong Manh and the boyfriend. Hong Manh was genuinely remorseful and did not have a previous record. He had previously offered to plead guilty to manslaughter; his offer of a plea was not accepted by the Crown.
[96] Justice Arnold-Bailey considered the difficult breakdown in Hong Manh’s marriage, his remorse, and the heavy toll on him of the loss of his family, and a lengthy sentence. She sentenced him to nine years’ imprisonment.
[97] Justice Arnold-Bailey found that:
a) Hong Manh acted instinctively, without thinking about the consequences of what he did. He did not act from anger or jealousy;
b) in the prior altercations, the boyfriend had been the aggressor, and Hong Manh may have shot him out of fear for his own physical safety;
c) Hong Manh appeared to have consumed alcohol on the day of the shooting, which may have affected his actions and ability to foresee the natural and probable consequences of his actions;
d) the circumstances of the separation, and Hong Manh’s lack of contact with his children, may have affected his state of mind;
e) the deceased was in Hong Manh’s home without permission, and his sudden presence contributed to Hong Manh’s instinctive action of drawing the gun. The deceased may have come to the home armed with pepper spray; and
f) Hong Manh’s estranged wife pulling on his arm may have caused him to accidentally shoot the deceased.
[98] In McPake, Justice DeWitt-Van Oosten, then of this Court, sentenced Gage Edward McPake to ten years’ imprisonment based on a joint sentencing submission.
[99] Mr. McPake was charged with second degree murder, but pled guilty to manslaughter. In doing so, he accepted responsibility for his offence, provided certainty in resolution, and avoided the need for a trial to determine his culpability. He had only one prior conviction and not for a violent offence. The robbery was planned, but not sophisticated. Mr. McPake caused the death of the victim, but did not intend to kill him. He was 26 years old when sentenced and 23 at the time of the offence. Justice Dewitt-Van Oosten said his age boded well for the potential of rehabilitation. He expressed genuine remorse for his actions.
[100] In Chad, Donald James Chad was charged with the offences of manslaughter and possession of a loaded prohibited firearm. Mr. Chad and two other men returned to a drug house from which Mr. Chad had bought drugs from the victim on an earlier occasion. Mr. Chad carried a loaded rifle concealed in a bag. Mr. Chad followed another person into the victim’s locked room. During an ensuing scuffle, Mr. Chad’s gun discharged unintentionally, and he shot and killed the deceased.
[101] Mr. Chad had an extensive criminal record starting in his teens and continuing throughout his adulthood. His primary offences were for drug trafficking and violence. At the time of the shooting, he was subject to a lifetime ban on the possession of firearms, ammunition, or explosive substances.
[102] Judge Jardine concluded that the fit sentence for the offence of manslaughter, standing alone, was nine years, and for the offence of the possession of the firearm, standing alone, was five years. However, Jardine J. sentenced him to a reduced sentence of 13 years based on the totality principle.
[103] In Weber, Chadwick Marcus Weber was charged with robbery and use of an imitation firearm. After trial, he was convicted only of the robbery offence. The victim was running an illegal grow-op out of his residence, and Mr. Weber and two others stole the marihuana and threatened to kill the victim if he reported it. The victim tried to escape, and Mr. Weber stopped him from leaving by slamming the door on his head and arm. The victim fell to the floor and was then punched and kicked repeatedly in the head and body. He did not suffer serious injuries.
[104] Mr. Weber was 37 years old when he was sentenced. He had a lengthy criminal record dating back to his youth. A number of his convictions involved violent offences. At trial, he was sentenced to five years. His sentence was upheld on appeal. The trial judge had not erred in giving too much weight to the principles of denunciation and deterrence.
[105] The defence relies on R. v. Golic, 2017 BCSC 2244, rev’d in part 2018 BCCA 152, R. v. Quinlan, 2009 BCSC 1327, R. v. Mulligan-Brum, 2013 BCCA 231, R. v. Aubin, 2009 BCCA 418, and Deo.
[106] In Golic, Arvin Golic was convicted of manslaughter in the swarming and stabbing death of Mr. Gordic in Whistler in 2015. Two youths were also charged and convicted of manslaughter, and a third youth was convicted of second-degree murder. Mr. Golic had a relevant youth record involving the use of knives. Justice Humphries did not accept that Mr. Golic was truly remorseful, but accepted that an early guilty plea was offered by him. He was sentenced to seven years’ imprisonment.
[107] In Quinlan, Joshua Paul Quinlan pled guilty to one count of manslaughter with a firearm and two counts of aggravated assault. Justice Joyce sentenced him to six years for manslaughter and three years, concurrent, on each count of aggravated assault. Mr. Quinlan and others had been drinking heavily and, when they ran out of alcohol, went into downtown Chilliwack to find a bootlegger to replenish their supply. Mr. Quinlan took a loaded handgun with him. He had the necessary permit.
[108] When they could not find a bootlegger, Mr. Quinlan noticed empty liquor bottles near a group of young people. He asked them for liquor, and they told him to move on. When he did not do so, there was an altercation during which an empty beer bottle was thrown over the head of Mr. Quinlan and smashed on the pavement in front of him. Mr. Quinlan used his gun to fire eight shots towards the group, hitting three men and killing one of them. Mr. Quinlan surrendered to the police, giving a full statement and admitting to the offences.
[109] Mr. Quinlan was 23 years of age. He was employed full time and had letters of support from his family. He had no criminal record. He was truly remorseful and accepted full responsibility for his actions. The Crown submitted that the appropriate effective global sentence, before time served in pre-sentence custody, would be eight to ten years’ imprisonment. The defence sought a sentence of five to six years.
[110] In arriving at a fit sentence, Joyce J. accepted that Mr. Quinlan had not planned on using his gun to intimidate, rob, or for any other purpose. In a drunken state, he used it foolishly, stupidly, and recklessly. Justice Joyce said that there was not the same degree of planning, preparation, or deliberation as in some of the cases referred to by counsel.
[111] In Mulligan-Brum, the appellant pled guilty to manslaughter with a firearm. He appealed his effective sentence of seven years less time served in pre-trial custody. He argued that the trial judge erred in failing to accept his expression of remorse. The Court of Appeal upheld his sentence.
[112] The victim was one of a group of youths, all around 16 years old, who had been drinking and were vandalizing vehicles, including that of the appellant. The appellant came out with a loaded handgun and pursued the youths. He fired two shots from between 25 and 30 metres away, one of which killed the victim.
[113] The appellant was 20 at the time of the manslaughter and 22 when sentenced. He had a criminal record and was on probation at the time. The appellant was not licenced to own a handgun, and having one was in breach of terms of his probation. He was supported by his family and friends. He had worked hard while in pre-sentence custody and had graduated from grade 12.
[114] In Aubin, the Court of Appeal upheld the trial judge’s sentence of seven years for manslaughter, but corrected an error in the treatment of time spent in pre-trial custody.
[115] John Michael Aubin and the victim were friendss. The victim gave Mr. Aubin money and asked him to buy him a sawed-off shotgun. Mr. Aubin obtained the gun and stored it in his storage locker.
[116] Several weeks later, Mr. Aubin’s car broke down on a trip to Nelson. He asked several friends, including the victim, to pick him up. The victim refused. When the appellant returned home, he retrieved the shotgun and, the next day, concealed it in his coat and walked to the victim’s residence. The appellant repaid the victim some money, and the victim left the room. When he returned, the victim died from an accidental discharge of the firearm. Mr. Aubin meant to level the gun at the victim to scare him, but shot him instead.
[117] Mr. Aubin was 27 years old when he committed the offence. He had a grade 10 education and was employed as a mason. He had a significant and relevant criminal record, including offences of violence. He was on probation and subject to a firearms prohibition when he shot the victim. He had anger management issues.
[118] In Deo, which I referred to earlier, Watchuk J. imposed a global sentence of seven years for the offences of manslaughter with a firearm and indignity to a human body. The sentence for manslaughter was five years, followed by a consecutive two years for indignity to a dead human body. Harjot Singh Deo accidentally discharged his firearm and killed his girlfriend. Mr. Deo was 19 at the time of the offence and had no prior criminal record. He made significant efforts to dispose of the body, including not calling 911 and placing the victim’s body in a vehicle and lighting it on fire.
[119] The mitigating circumstances to be considered in arriving at a fit sentence for Mr. Khudhair with respect to all of the offences are:
a) he was 24 years old when he committed these offences and is now 26 years old. He is a relatively young offender;
b) he entered guilty pleas to all of the offences. As a result, the victims were spared from testifying at trial and the cost of a trial was avoided. Mr. Khudhair concedes that his guilty plea to manslaughter provides slightly less mitigation because it occurred after a preliminary hearing and the partner was not spared from being cross-examined. Nonetheless, I accept that Mr. Khudhair’s pleas have some mitigating effect;
c) he has a relatively limited criminal record;
d) although no supportive letters were written by his family members or others on his behalf, his mother and oldest brother attended the sentencing hearing to support him and were clearly moved by the apology he made to them and to the victims; and
e) he expressed his remorse to the Court and directly to Mr. Sheh and the partner. He did not flinch when they rejected his expressions of remorse and repeated how sorry he was about what he had done. I accept that Mr. Khudhair is genuinely remorseful.
[120] Although not truly an aggravating or a mitigating factor, Mr. Khudhair faces a potential collateral consequence as a result of his immigration status: R. v. Pham, 2013 SCC 15 at paras. 11–14. He is an Iraqi national, who is a permanent resident of Canada. But for the Canadian government’s current policy of not enforcing removal orders to Iraq, he would face a deportation order to Iraq after serving his sentence, without a right of appeal. It is impossible to know what the policy might be when Mr. Khudhair has served his sentence.
[121] I accept that if the government’s policy changes, there is a reasonable possibility that Mr. Khudhair may be removed from Canada on completion of his sentence.
[122] I also accept that, in crafting a fit and appropriate sentence for Mr. Khudhair, I should consider that most of his pre-sentence custody was served under somewhat harsher conditions than were in place prior to the pandemic. He has been in pre-sentence custody since May 5, 2021.
[123] Throughout pre-sentence custody, there were limits on how often Mr. Khudhair was able to leave his cell, he endured frequent lockdowns, his free time was curtailed, and he has been unable to have any in-person visits with family or counsel.
[124] The harsh conditions under which he served his pre-sentence custody should, in my view, be considered as mitigating his overall sentence: R. v. Fulton, 2021 BCSC 2721 at para. 74; R. v. Biever, 2023 ABCA 138 at paras. 24–26, referring to R. v. Marshall, 2021 ONCA 344 at paras. 50–53.
[125] The aggravating circumstances in this case are:
a) although Mr. Khudhair has a limited criminal record, he was on probation for other violent offences when these offences occurred. As a result of offences that occurred on June 28, 2018, Mr. Khudhair pled guilty on November 15, 2019, to assault, contrary to s. 266 of the Code, and possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Code. He was conditionally discharged and placed on probation for a period of two years;
b) the manslaughter occurred in the context of a robbery. Mr. Khudhair was at the Residence for a nefarious purpose;
c) because Ms. Arsenault was a sex worker, she was a vulnerable and marginalized victim;
d) the gun used by Mr. Khudhair in the manslaughter was an unlawful, restricted firearm, which he did not have a right to possess. It was clearly a criminal gun, as the serial number had been effaced;
e) Mr. Khudhair assaulted Mr. Sheh during the course of the robbery in Mr. Sheh’s home. The fact that the robbery occurred in a private residence is aggravating; and
f) Mr. Khudhair used threats of violence to control the other participants in the poker game and assaulted Mr. Sheh both in the living room in front of the other victims and when in the bedroom.
[126] Mr. Khudhair, please stand.
[127] I have considered the Code’s sentencing provisions, all of the cases relied on by the Crown and the defence, and the aggravating and mitigating circumstances in your case. In reaching my conclusion on sentence, I have considered as important factors—although the primary sentencing objectives are denunciation and deterrence—your relative youth when committing the offences and the fact that you have a relatively limited criminal history. There is a reasonable prospect of your rehabilitation, and the sentence I impose is intended to give you that chance.
[128] In my view, the offences you committed are more serious than those in Deo, Mulligan-Brum, and Aubin, none of which had the element of pre-planning that characterized all of your offences. Unlike the situation in Quinlan, your mental state when committing the offences was not impaired.
[129] Nonetheless, I do not conclude that your criminal record was as significant as the offender in Chad.
[130] The offences you committed are grave and demonstrated reckless and careless attitudes toward your victims and those around you. You engaged in extensive planning, and there is a similarity to the circumstances of all of your offences. You used a firearm, or an imitation firearm, thereby aggravating your offences, and both offences occurred in the victims’ homes.
[131] Balancing all of the necessary factors in mind, and considering
a) your difficult personal circumstances as a young man who grew up in war-torn countries and arrived in Canada as a refugee without speaking the language and with little formal education; and
b) the harsher-than-usual circumstances in which you have served your pre-sentence custody;
I have concluded that for the offence of manslaughter using a firearm, a nine-year sentence of imprisonment is fit and appropriate.
[132] For the offences of robbery and the use of an imitation firearm, based on the agreement of your counsel and the Crown, I sentence you to imprisonment for a consecutive five years’ imprisonment; four years plus a further consecutive year.
[133] Based on the totality principle, I reduce your sentence to 12 years.
[134] I grant you 1,061 days’ credit for time spent in pre-sentence custody, leaving 3,319 days (or nine years and 34 days) left for you to serve on your sentences.
[135] There are also a number of ancillary orders I am bound to make:
a) Pursuant to s. 109(2) of the Code, you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for life after release from your term of imprisonment.
b) Under this same section, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life, running from the date of this order.
c) Manslaughter using a firearm is a primary designated offence within the meaning of s. 487.04 of the Code. As such, pursuant to s. 487.051(1), I make an order authorizing the taking of a sample of bodily substance from you, for the purpose of forensic DNA analysis and inclusion in the national DNA databank.
[136] Finally, pursuant to s. 743.2 of the Code, I order that a copy of these reasons for sentence be forwarded to the Correctional Service of Canada.
“MacNaughton J.”