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Case Name:R. v. Tabbara

BetweenHer Majesty the Queen, Prosecutor, andMohammad Jihad Tabbara, Defendant

[2009] O.J. No. 4397

Court File No. 06-8829

Ontario Superior Court of Justice

J.A. Blishen J.

Heard: August 18, 2009. Judgment: October 23, 2009.

(95 paras.)

Criminal law -- Sentencing -- Criminal Code offences -- Offences against person and reputation --Homicide -- Manslaughter -- Particular sanctions -- Imprisonment -- Sentencing considerations --Aggravating factors -- Mitigating factors -- Denunciation -- No criminal record -- Remorse -- Ageof accused -- Accused sentenced to two years less six days for manslaughter -- In an unprovokedattack, accused hit victim on the back of the head as victim walked away -- Accused, 21 at the timeof offence, was extremely remorseful, was completing his education and volunteered in thecommunity -- No prior record and supportive family -- Despite mitigating factors and extremely lowrisk of re-offending, a conditional sentence was inappropriate, since this was a crime of violencewith the most serious and grave of consequences.

Sentencing of the accused for manslaughter. The accused's friends confronted the victim and hisfriend by provoking them. After the victim turned his back and walked away, the accused punchedhim on the back of his neck, killing him. The victim impact statemnt indicated the devastation thatthe loss of the victim's life had on his family. At the time of the offence, the accused was 21 yearsold and had no criminal record. The accused had a supportive family and resided with his parents.The accused completed high school and was now enrolled in an advanced marketing program. Hehad expressed profound remorse for his actions. He had sent five days in custody.

HELD: Accused sentenced to two years less six days imprisonment followed by two years'probation. The accused's assault was spontaneous, impulsive and took a split second. The results ofthe blow were completely unintended. The most aggravating factor heightening the accused'sblameworthiness was the fact that he struck the victim when his back was turned and he waswalking away. The accused's age, the strict bail conditions with which the accused had complied inthe past three years, the extreme low risk of re-offending, the accused's continuance of his education

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and his efforts to contribute to the community by volunteering were mitigating factors. Consideringthe accused's age, lack of criminal record, good character, profound remorse and the othermitigating factors, the objectives and principles of sentencing, in particular the principle of restraintfor a youthful first offender, could be met by a custodial term of two years less a day. A conditionalsentence was not appropriate, considering that this was a crime of violence with the most seriousand grave of consequences, the assault was intentional with the foreseeability of bodily harm, andthe blow inflicted by the accused was from behind when the victim was walking away. To permithim to serve his custodial term in the community would not give sufficient weight to the principlesof general deterrence and denunciation, nor would it meet the fundamental purpose of sentencing --to contribute to respect for the law and the maintenance of a just, peaceful and safe society.Sentence: two years' less six days imprisonment; two years' probation; firearms prohibition; DNAorder.

Statutes, Regulations and Rules Cited:Criminal Code, R.S.C. 1985, c. C-46, s. 718, s. 718(c), s. 718.1, s. 718.2, s. 718.2(a)(i), s. 742.1

Counsel:M. Cunningham, for the Prosecutor.

J. Foord, for the Defendant.

J.A. BLISHEN J.:--The Offence:1 On June 24, 2006, Tim Wojna and his friend Dixie Duggan were out drinking in the marketarea of Ottawa. A few hours later, while walking past the Elgin Street Diner, they were confrontedby three young men who had also been out for a night of drinking with friends. One of the three wasthe accused Mohammed Jihad Tabbara. Over the next two minutes, there were four interactionsbetween Mr. Tabbara's friends Diar Hosseini and Brian Herbert and Mr. Wojna, which included: araised arm by Mr. Herbert; swipes at Mr. Wojna by Mr. Hosseini; the knocking off of Mr. Wojna'shat by Mr. Herbert; and somewhat aggressive lunges and throwing of fake punches by Mr. Wojnatowards Mr. Herbert. Neither Mr. Tabbara nor Mr. Duggan was involved in these interactions. Nearthe end of the confrontation between the two groups, Tim Wojna turned his back and began walkingaway when Jihad Tabbara punched him on the back of the neck. Approximately 18 seconds later,Tim Wojna collapsed to the ground and ultimately died.2 The blow inflicted by Mr. Tabbara caused a sudden torsion of Tim Wojna's head, tearing asmall artery which caused hemorrhaging within and around the brain and led to his death.3 Mohammed Jihad Tabbara was charged and ultimately convicted of manslaughter, after trial.

Sentencing for Manslaughter:4 Manslaughter is a non-intentional homicide covering many different factual scenarios rangingfrom "near accident" to "near murder." It is necessary only that an unlawful act, in this case an

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unlawful assault, cause the unintended result of death. It is well settled law that a person whocommits an unlawful act is responsible for any unforeseen result: see R. v. Creighton (1993), 83C.C.C. (3d) 346 (S.C.C.) at 377.5 In this case, there is no statutory minimum penalty for manslaughter. The maximum sentence islife imprisonment. The numerous cases referred to by defence counsel and the Crown demonstratethe broad range of sentences available for a manslaughter conviction, perhaps the broadest for anyoffence. Given that manslaughter can occur in such a wide variety of circumstances, the penaltiesmust be flexible. The objectives and principles of sentencing outlined in the Criminal Code, R.S.C.,1985, c. C-46, may call for a very substantial period of incarceration from 15 to 20 years at the oneextreme and, at the other end, where there are strong mitigating factors or where the act was close tobeing an accident, a conditional sentence, under s. 742.1 of the Criminal Code, or even a suspendedsentence, may be imposed.

6 The extremely difficult task of a judge in sentencing is made even more difficult, given thewide range of possible sentences. Very close attention must be paid to the particular facts andcircumstances surrounding both the offence and the offender. In my nearly 17 years as a judge, Ihave seldom encountered a more difficult sentencing decision.

Positions of the Crown and Defence:7 Crown counsel's position is that a penitentiary term of four to five years should be imposed. Insupport of this position, the Crown highlights the seriousness of the offence, certain aggravatingfactors and the objectives of general deterrence and denunciation, which, it is argued, should takeprecedence in this case.8 Crown counsel provided me with a number of comparable cases where a penitentiary term hadbeen imposed for a conviction of manslaughter as follows:

1. R. v. Garrison, [1999] O.J. No. 3782 (C.A.)2. R. v. Markarian, [2000] O.J. No. 5723 (Sup. Ct.)3. R. v. Hanifan, [2001] O.J. No. 1576 (C.A.)4. R. v. Phillips, [2005] O.J. No. 5852 (Ont. Ct.)5. R. v. Braune, [2006] O.J. No. 679 (Ont. Ct.)6. R. v. Crosby, [2005] P.E.I.J. No. 1 (P.E.I. Sup. Ct. App. Div.)7. R. v. Lampe, [2007] N.J. No. 228 (Nfld. & Lab. Trial Div.)8. R. v. Henry, [2002] N.S.J. No. 113 (C.A.) R. v. Tower, [2007] N.S.J. No. 193 (S.C.)9. R. v. Isenor, [2007] N.S.J. No. 487 (N.S. Prov. Ct.)

9 Defence counsel, on behalf of Mr. Tabbara, argues that I should impose a sentence of two yearsless a day and order, under s. 742.1 of the Criminal Code, that it be served in the community, as aconditional sentence, under strict conditions of house arrest.10 Defence counsel provided me with a number of cases where conditional sentences wereordered after manslaughter convictions as follows:

1. R. v. Turcotte, [2000] O.J. No. 13162. R. v. Whitteker, [2004] O.J. No. 14153. R. v. Hermanson, [1999] B.C.J. No. 946

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4. R. v. Ferguson, [1997] O.J. No. 24885. R. v. Getkate, [1998] O.J. No. 63296. R. v. C.C., [2003] M.J. No. 1017. R. c. L.L., [2001] J.Q. no. 60638. R. v. Harizuk, [1999] O.J. No. 3110 R. v. Stratton, [2002] N.S.J. No. 2059. R. v. Emard, [1999] B.C.J. No. 463

11 I have carefully read and considered all of the cases submitted to me by both Crown anddefence counsel. Although some cases are more similar to the facts of this case than others, it is notsurprising that all of them are distinguishable. The two cases which are the closest to thecircumstances of this case are R. v. Braune and R. v. Isenor.12 In R. v. Braune, the offender pled guilty to manslaughter. Mr. Braune, who had a grudgeagainst the victim due to comments made to the his girlfriend, approached the victim, had somewords with him and then, without any provocation, punched him in the head, knocking it into acement wall. Later that night, the victim died due to blunt force trauma to the head.13 Mr. Braune was 18 years old with no criminal record. He was remorseful and from a stable,supportive family. He served seven months of pre-sentence custody and, upon his release, continuedhis schooling. The Pre-Sentence Report noted that this was an isolated incident and out of characterfor Mr. Braune, who was unlikely to reoffend and was motivated to rehabilitate himself. Mr. Braunewas sentenced to 30 months in prison with credit given on a two for one basis for the seven monthsalready served, resulting in a further 16 months incarceration. A conditional sentence was held notto be appropriate.

14 In R. v. Isenor, Mr. Isenor was found guilty of manslaughter after trial. He punched theintoxicated victim in the mouth outside a bar. The victim hit his head and died. Mr. Isenor was ofprevious good character, was clearly remorseful and apologized before the court. The assault wasuncharacteristic of him. He had an unrelated criminal record. Mr. Isenor was sentenced to threeyears in prison. Therefore, a conditional sentence was not an available option.Victim Impact Statements:15 Victim Impact Statements written by Tim Wojna's father, mother, brother, grandmother,uncle, aunt and cousin were filed as Ex. 2. Mr. Wojna's mother and grandmother read theirstatements to the court. The statements are powerful, moving and speak eloquently to theconsequences of the loss of this young man.

16 Tim's mother, Sally Dawe, indicated that she now suffers from extreme anxiety and persistentdepression, often waking with vivid and graphic nightmares. She feels profound sadness and isgreatly concerned about her other son and daughter who were 16 and 18 at the time of Tim's death.She describes angry, sad and anxious young adults who struggle in school and suffer from physicalsymptoms. Sadly, she indicates that her two children believe there is no future; do not believe in thejustice system and have thoughts of suicide. Ms. Dawe indicates that she wants Mr. Tabbara toreceive the maximum sentence for his conviction and be deprived of his family as they have been.17 Tim's father, John Wojna, speaks of his oldest child as a unique, inquisitive, creative youngman, who was full of zest with an infectious personality. He speaks of canoeing the back waterrivers and lakes of Ontario with Tim who was "an effortless canoeist and accomplished

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outdoorsman." Mr. Wojna indicates that he and Tim had many quiet times together "filled withpeace and wonder." Mr. Wojna describes his grief as "very deep and private." He describes whathappened to Tim that night as "a murderous trap."18 Dan Wojna, Tim's younger brother, speaks of the bitterness and hate he has flowing throughhis veins. He states it will be almost impossible for him and his family to ever be truly happy again.He indicates he will never forgive Mr. Tabbara and bemoans the length of the proceeding. It is hisview that his brother was murdered and he considers the whole system a joke.19 Tim's uncle, Simon Wojna, speaks of the impact that Tim's death has had on his family andindicates it has devastated Tim's grandmother whose health has deteriorated given the stress,sadness and worry.

20 James Wojna, Tim's cousin, notes that the family has been crushed by the loss of Tim "agentle and kind-hearted guy."

21 Jessamym Wojna, Tim's aunt, also speaks to his gentle soul, "curiosity and kindness."22 Finally, Gwenyth Wojna, Tim's grandmother, speaks of the pain and loss she feels at beingdenied the privilege of seeing her grandson grow "as he stood on the threshold of life."23 The devastation that the loss of Tim Wojna's life has had on his family is manifestly evident.No sentence that I may be permitted to impose can come close to compensating Tim's family fortheir loss.

24 In considering the moving and powerful Victim Impact Statements, I must also keep in mind,as Mr. Justice Donnelly stated in R. v. Green, [2000] O.J. No. 3106:

10. 11 ... notwithstanding that dreadful loss, it must be made clear that thecriminal process is not an instrument of vengeance nor an instrument ofappeasement. The quantification of sentence is not an attempt to place avalue on a human life.

25 I do wish to make it clear to Tim Wojna's family that I have read and listened carefully to theircomments and will consider them, to the extent that I am able, when determining an appropriatesentence.

The Offender:26 A Pre-Sentence Report, (Ex. 1), was prepared by Probation and Parole Officer, LizBourguignon. Seldom have I seen a more positive report. Ms. Bourguignon interviewed numerousfriends and family of Mr. Tabbara and considered a number of letters of support. Support lettersfrom family members and the community were filed in the Defence Documents on Sentencing, (Ex.3), along with lyrics of a song written by Mr. Tabbara and diplomas and certificates of achievementearned by him.27 The Crown argues that the Pre-Sentence Report is not balanced, given the absence ofcomments from the victim's family. In that regard, I note that Ms. Bourguignon did make efforts tocontact them, through Staff Sgt. Pirt, who left several voice mail messages for Tim Wojna's fatherrequesting a call back, however, they did not return his calls. The family did not contact Ms.Bourguignon.

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28 In addition, I note that Ms. Bourguignon did have contact with Staff. Sgt. Pirt of the OttawaPolice Service and reviewed the police incident report.

29 The Pre-Sentence Report indicates that, at the time of the offence, Mr. Tabbara was 21 yearsold and had no criminal record. He is a youthful first offender.

30 Subsequent to his arrest, Mr. Tabbara was held in custody for five days and since then hasbeen on strict release conditions with a curfew of 10 p.m. There has been no violation of any of theconditions of his release in over three years.31 Although Mr. Tabbara recalls a time in high school when he experimented with marijuana andmushrooms, he denies any further use and there is no evidence he has any substance abuse oradditions difficulties. With respect to his actions on June 24, 2006, there is no evidence that, unlikehis friends, Mr. Tabbara was intoxicated. Mr. Tabbara, himself, noted that alcohol did not play arole in the offence.

32 Mr. Tabbara has a loving, supportive, strong relationship with his family. He continues toreside with his mother and father in a household described as conservative, with both parents doingtheir best to instill pro-social values, respect for others and a sense of right and wrong in theirchildren. Mr. Tabbara has three sisters and is the younger of two sons in the family. He is very closeto his older brother Jason who is 12 years his senior and who has consistently mentored andsupported him. At the present time, Mr. Tabbara's father is in fragile health, suffering from a heartcondition. Jason reports that his brother helps out around the home and does all the chores, in orderto assist his family.

33 In March 2008, Mr. Tabbara met and began a relationship with Mary-Anne Barnard. Shereports that they share a positive relationship together and now have a son, born February 25, 2009.Ms. Barnard often stays at the Tabbara home for several days at a time with the baby. She states thatMr. Tabbara is "a caring and loving father, showering their son with love and affection." After theoffence, Ms. Barnard reports that the couple's eight month old son has given Mr. Tabbara somehope for the future.

34 Mr. Tabbara completed his high school education with good grades and no behaviouralproblems. Prior to the offence, he was attending Algonquin College in the business marketingprogram. In addition, he was also an aspiring singer and songwriter. A possible recording deal witha Canadian independent recording label fell through after his conviction. On June 7, 2007, Mr.Tabbara graduated from the business marketing program at Algonquin and is now enrolled in theadvanced marketing program which he has put on hold pending the results of this sentencing.

35 Since February 2009, Mr. Tabbara has worked with his brother Jason's internet basedcompany, Campustree, which is designed to help students in post-secondary institutions. JihadTabbara develops marketing strategies and conducts market research for the company. JasonTabbara's business partner, Lisa Grisdale, states that Jihad Tabbara has been an essential player forthe company which was set to launch its web portal in September 2009 targeting Ottawa University,Carleton University and Algonquin College students.

36 Prior to working for Campustree, Mr. Tabbara had summer employment as a sales and supportworker for Infotech, where the senior technical consultant, Nash Seifeddine, described him ashaving a "friendly, enthusiastic and courteous spirit."

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37 Mr. Tabbara volunteered for eight months planning and preparing a soccer/basketball programfor 6 to 12 year olds at the YMCA. Ms. Sara Boisvert, coordinator, noted that Mr. Tabbara was "anexcellent role model and a pleasure to work with, as well as a great leader for the young childrenand adolescents ... "

38 Mr. and Mrs. Tabbara have been devastated and struggle daily with the aftermath of their son'sactions. They have been seeing a psychologist to try to assist them in struggling with the guilt,shame and remorse they feel. The Tabbaras acknowledged that their family's struggles are likelysmall in comparison to the loss, grief and emotions likely felt by the victim's family.

39 Jason Tabbara indicates that his brother has always been respectful of others and a strongleader. He notes that Jihad is a different person since the commission of the offence. Where he wasonce bubbly, energetic and sociable, he is now more reserved, introverted and seems to have lost thejoy and enthusiasm he had for life. Jason attributes this change primarily to his inability to forgivehimself.40 Other friends of Mr. Tabbara and his family indicate that Jihad is a grounded, modest and kindindividual who has never been known to be violent, aggressive or insubordinate. His actions onJune 24, 2006 were described as out of character.

41 The Publisher of Ottawa Life Magazine, Dan Donovan, who has been a friend of Mr. Tabbarafor 10 years, indicates that he is a good, decent, talented, young man who has potential to make apositive contribution to society. Mr. Donovan notes Mr. Tabbara's exceptional talent in music andthe fact that he was establishing himself as a reputable singer.

42 Mr. Tabbara has expressed profound remorse for his actions. In the Pre-Sentence Report, Ms.Bourguignon, describes it this way:

10. He expressed a great deal of remorse for his actions and spoke about themany lives he has affected as a result of his behaviour. He did not appearto focus on himself and the possibility of incarceration, he notes he isprepared to handle the consequences and will accept the Court's decision.Throughout our interview, his focus was on the loss of another man's life,the ripple effect this has had on others and the burden he will carry for therest of his life, knowing he is responsible.

43 Ms. Bourguignon describes Mr. Tabbara's remorse as "bottomless and truly genuine."44 In commenting that Mr. Tabbara has completed college and secured employment, Ms.Bourguignon concludes:

10. ... while at some level he has gone on with his life, he expressed hepersistently battles with daily anguish over what he has done as hecontinues to search for closure.

45 On the sentencing hearing, Mr. Tabbara read an apology to the court and to Tim Wojna'sfamily indicating that he accepts full responsibility for his actions. He expressed his "greatestregret" and indicated that if he could go back in time, his actions would most certainly be different.Understandably, I doubt that Mr. Tabbara's apology had any real impact on the Wojna family.However, I am satisfied that it was genuine and heartfelt.

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46 Mr. Tabbara continues to struggle with guilt and an inability to forgive himself. FromDecember 2006 to February 2007, he met with psychologist Dr. Guy Bourgon, initially to obtainassistance in managing his guilt and emotions resulting from the offence. In May 2009, Mr. Tabbaraagain began counselling with Dr. Bourgon on a monthly basis. The Pre-Sentence report indicatesthe following:

10. Dr. Bourgon notes the subject's remorse is genuine and he considers him"an extremely low risk to re-offend." He believes the consequences of thesubject's actions have been detrimental to him and have left a lastingimpression. He believes the subject's actions were isolated anduncharacteristic of him, citing no anger management deficits on thesubject's part.

Principles of Sentencing:47 The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code asfollows:

10. 718. The fundamental purpose of sentencing is to contribute, along withcrime prevention initiatives, to respect for the law and the maintenance of ajust, peaceful and safe society by imposing just sanctions that have one ormore of the following objectives:

11. (a) to denounce unlawful conduct;

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

11. (c) to separate offenders from society, where necessary;

11. (d) to assist in rehabilitating offenders;

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

11. (f) to promote a sense of responsibility in offenders, and acknowledgmentof the harm done to victims and to the community.

48 A fundamental principle of sentencing set out under s. 718.1 of the Criminal Code is that thesentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.49 The other sentencing principles that are relevant in this case are set out under s. 718.2 asfollows:

12. a sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or theoffender ...

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10. (b) a sentence should be similar to sentences imposed on similar offendersfor similar offences committed in similar circumstances;

10. ...

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

10. (e) all available sanctions other than imprisonment that are reasonable inthe circumstances should be considered for all offenders, with particularattention to the circumstances of aboriginal offenders.

Principle of Proportionality50 The proportionality principle outlined under s. 718.1 requires that full consideration be givento both the gravity of the offence and the moral blameworthiness of the offender. In sentencing anindividual for manslaughter, the sentence must be tailored to the degree of moral culpability of theoffender.

51 The enormity of the tragic consequences of an offence should not be allowed to unduly distortthe consideration of the court as to the appropriate remedy: see R. v. Mellstrom (1975), 22 C.C.C.(2d) 472. In addition, it is an error for the court on sentencing to give undue weight to the actual,rather than the probable results of the act, where it is clear that, at the time of the act, in this case theassault, the probability of the actual results could not have been on the accused's mind: see R. v.Griffin (1975), 23 C.C.C. (2d) 11.

52 On the other hand, where the offender knew or was willfully blind to the fact that his unlawfulact was likely to put the victim at risk of death or cause death, there will be a heightened degree ofmoral blameworthiness: see R. v. K.K.L., [1995] A.J. No. 434 at para14.53 While giving weight to all the principles of sentencing, the sentencing judge must assess theextent of moral culpability in a particular case and consider where on the continuum from almostaccident to almost murder, the particular offence falls: see R. v. Henry, [2002] N.S.J. No. 113 (C.A.)at para19.54 Relevant to the analysis of moral blameworthiness in a case of unlawful act manslaughter, isan examination of the unlawful act itself. The nature and quality of the unlawful act, the method bywhich it was committed, whether a weapon was used and the degree of planning and deliberationare material factors. Other considerations may include the extent of the victim's injuries, the degreeof force used, the degree of violence or brutality, the perpetration of any additional gratuitousviolence, the time taken to perpetrate the act and the element of chance involved in the resultingdeath: see R. v. K.K.L., supra at para8, para23.

55 Where along the continuum of moral culpability from near accident to near murder do Mr.Tabbara's actions and intent fall? In the unlawful assault of Mr. Wojna, there was no element ofself-defence, which could move the offence closer to a near accident. This was not a case where, forexample, there is pushing and shoving back and forth; the victim is pushed to the ground and strikeshis head, causing head injuries and death. In that fact situation, the actions and intent couldconstitute a near accident.

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56 However, there is no suggestion that Mr. Tabbara's assault on Mr. Wojna constitutes a case ofnear murder. In addition, some of the aggravating factors that would heighten moralblameworthiness are not present:

13. No weapon was used;13. There was no planning or deliberation; and13. There was no other gratuitous violence or brutality

57 During the very brief confrontation between the two groups lasting a total of less than twominutes, Mr. Tabbara was not physically involved until the last few seconds. There were fourprevious interactions between Mr. Wojna and Mr. Tabbara's friends, Diar Hosseini and BrianHerbert. During the fourth interaction, Mr. Wojna was somewhat aggressively lunging back andforth towards Mr. Herbert, throwing fake punches or elbows at him. Although there was no audioon the DVD, it appeared that words were being exchanged during the interactions. It was in thatcontext that Mr. Tabbara delivered a single blow to the back of Mr. Wojna's neck.

58 The evidence of forensic pathologist, Dr. Brian Johnson, was that the blow was of mild tomoderate force and caused only a small bruise. Mr. Tabbara's action was spontaneous, impulsiveand took a split second. The blow did not knock Mr. Wojna out. He stumbled, remained upright andcontinued to walk around for a further 18 seconds before collapsing. Mr. Tabbara was not awarethat his blow set in action a chain of medical events, which would result in Mr. Wojna's death. Theprobability of the extremely grave consequences of this one action, was not on Mr. Tabbara's mind.The results of the blow were completely unintended.59 Perhaps the most aggravating factor heightening Mr. Tabbara's blameworthiness is the factthat he struck Tim Wojna when his back was turned and he was walking away. At that particularpoint in time, although there had been some aggressive behaviour by Mr. Wojna previously, therewas no risk to Mr. Tabbara. In addition, Mr. Wojna was a vulnerable victim, given his intoxication,which should have been obvious to Mr. Tabbara who was not intoxicated.

60 After Mr. Wojna collapsed, Mr. Tabbara did not go back to assist him but left the scene andwent back into the diner. Although Mr. Tabbara acknowledged to his friends that he had hitsomeone, he did not immediately accept responsibility when the police escorted his friend, Mr.Balinet out of the diner, thinking he was the perpetrator.

61 The Crown argues that the lengthy three year process, including the trial, is indicative of Mr.Tabbara's failure to accept responsibility for his actions.

62 I find that, in this case, a trial, which is the right of every accused person, was necessary. Priorto the blow inflicted by Mr. Tabbara, there were four other interactions between Mr. Wojna, Mr.Herbert and Mr. Hosseini. It was necessary to carefully scrutinize the DVD numerous times; to hearthe testimony of all the witnesses, including the forensic pathologist; and then to carefully weigh allof the evidence together, in order to determine the issue of causation beyond a reasonable doubt.63 It is the balancing of the mitigating and aggravating factors with respect to the offence thatplace it on the continuum of moral blameworthiness between near accident and near murder.64 The circumstances and character of the offender as well as the other principles of sentencingoutlined in the Criminal Code must also be carefully considered and balanced in ultimatelydetermining the appropriate sentence.

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Aggravating and Mitigating Factors65 I have already referred to the factors relevant to the offence which either mitigate or aggravateMr. Tabbara's moral blameworthiness in causing Mr. Wojna's death. None of the aggravatingfactors outlined in s. 718.2(a)(i) through (v) of the Criminal Code are applicable in this case.

66 The mitigating factors, with respect to Mr. Tabbara, must also be considered. In summary,they are as follows:

14. Mr. Tabbara was 21 years old at the time of the offence and had nocriminal record. He is a youthful first offender.

16. Mr. Tabbara was in jail for five days and has been released on strictconditions, including a 10 p.m. curfew, with which he has complied, forover three years.

17. Mr. Tabbara's action was isolated, uncharacteristic and the risk of himreoffending is extremely low, as stated by Dr. Bourgon. The numerouscharacter references provided for Mr. Tabbara indicate that he is anonviolent, respectful individual, who has never been known as aggressiveor insubordinate. Descriptors used by his family and friends include:"loving," "affectionate," "modest," "cooperative," "respectful," "a strongleader," "never aggressive or violent," "responsible," "honest," "caring,"and "an excellent role model."

Despite carrying the burden of what he has done, Mr. Tabbara has been able tocomplete the business marketing program at Algonquin College and is nowenrolled in the advanced marketing program. He is currently employeddeveloping marketing strategies and doing market research for a company startedby his brother, Jason, and his business partner, Lisa Grisdale. Both see Mr.Tabbara as an essential player for the company which was set to launch its webportal in September 2009.

(a) Mr. Tabbara has made some effort to contribute to the community by working atthe YMCA as a volunteer for eight months, preparing programming for 6 to 12year olds where he was observed to be an excellent role model, a pleasure towork with, and a great leader. Mr. Tabbara has a strong desire to give back tosociety and make amends.

(b) The remorse felt by Mr. Tabbara was described by the probation and paroleofficer as "bottomless and truly genuine." Mr. Tabbara did not focus on himselfnor on the possible consequences of his actions in terms of incarceration but onthe loss of a man's life. He indicated he would carry the burden of what he haddone for the rest of his life and noted the ripple effect that his actions have had onothers. I found his apology in court a sincere reflection of his feelings of remorse.

11. The use of the word "accident" by some of Mr. Tabarra's friends andfamily in their letters reflects their perception of the results of Mr.Tabbara's actions as does the use of the term "murder" by some of Mr.Wojna's family members. I place little weight on the use of either of theseterms.

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11. I find that Mr. Tabbara accepts what he did was not an accident; that hedoes not feel that his actions were in any way, justified or justifiable andthat he is genuinely remorseful.

11. The probation and parole officer, Ms. Bourguignon concludes:

(c) To suggest the subject is remorseful and shattered as a result of his actions is anunderstatement. The remorse and guilt he feels and continues to feel on a dailybasis was evident to this writer, as was his inability to forgive himself. In shortthe subject presented as a broken spirit who continues to struggle with theconsequences of his actions. As previously mentioned, his struggle seems to begeared towards the grief and turmoil he has caused the victim's family.

Other Principles67 I have considered the purpose and objectives of sentencing outlined in s. 718 of the CriminalCode as follows:

12. Denunciation68 Denunciation in sentencing could be described as the means by which the criminal law'ssystem of values is communicated. The Supreme Court of Canada in R. v. C.A.M. (1996), 105C.C.C. (3d) 327 has noted that a sentence with a denunciatory element "represents a symbolic,collective statement that the offender's conduct should be punished for encroaching on our society'sbasic code of values as enshrined within our substantive criminal law." Sentences are intended to"positively instill the basic set of communal values shared by all Canadians as expressed by theCriminal Code."

69 The killing of another person by committing an unlawful act is strongly denounced by societyand is one of the most serious offences in the Criminal Code with a maximum sentence of lifeimprisonment. When a life has been taken, denunciation, through the imposition of a just andproportionate sentence, is a legitimate objective in sentencing. However, vengeance has no role inthe sentencing process: see C.A.M., supra at para80.

(b) General and Specific Deterrence70 Although the Crown questions whether or not Mr. Tabbara has been specifically deterred, Ifind from the Pre-Sentence Report, the numerous statements in the support letters, as well as fromMr. Tabbara's own comments to the court, that he is highly unlikely to ever engage in violentbehaviour again. As he states in his song, "Hands of Time":

Always walk away ... from conflicts

99% of the time, its nonsenseViolence begets more violence

71 As previously noted, Mr. Tabbara is, according to his psychologist, Dr. Bourgon, an extremelylow risk to reoffend. Given the lack of a criminal record and the positive Pre-Sentence Report andletters of support, I do not find the future protection of the public to be a concern.

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72 General deterrence must, of course, be carefully considered. The Crown argues that anysentence imposed must condemn what Crown counsel described as "peremptory random violenceon the streets of our community." Will others be deterred by a penitentiary sentence of four to fiveyears in this case?

73 While I was not provided with any statistics as to whether there is an unusually high incidenceof scuffles and fights among young people after the bars close in Ottawa, one only has to read thenewspaper or listen to the media to know that such altercations are not uncommon, although theresults are seldom so serious. When a young person's life has been taken as a result of such analtercation, deterring others from engaging in this kind of behaviour has to be an importantobjective of sentencing.

74 In R. v. Costa, [1996] O.J. No. 299, Justice Watt makes the following comments:

10. 40 General deterrence does not occur in a vacuum. It is satisfied when thesentence imposed is sufficient to deter others in circumstances similar tothose of the accused from similar conduct. At bottom, persons are deterred.They are deterred from conduct. They will be deterred from such conduct,if at all, by a sentence that, to them, will signal that the cost exceeds thebenefit. ...

(c) Separation of Offenders

75 Section 718(c) indicates that where necessary, offenders should be separated from society. Isit necessary for Mr. Tabbara to be separated from his family and the community, in order to achievethe fundamental objective of sentencing, which is to contribute to respect for the law and themaintenance of a just, peaceful and safe society?

(d) Rehabilitation

76 Mr. Tabbara has already taken a number of rehabilitative steps. He has participated incommunity activities, volunteered at the YMCA and has been receiving counselling bypsychologist, Dr. Bourgon, which should continue. He has contributed to the community as best hecan under all the circumstances and has been able to complete a college degree, start advancedstudies and maintain employment.

(e)&(f) Acknowledgement of Harm, Sense of Responsibility andReparations for Harm

77 As noted previously, there is little that the court can do to reduce the suffering or account forthe loss of Tim Wojna to his family. Mr. Tabbara's acknowledgment of harm, sense ofresponsibility and remorse have already been referred to in detail.78 Mr. Tabbara is a talented musician, a strong leader and an articulate, intelligent, young manwho wishes to do what he can to make the public, and in particular, young people, aware of thefutility of violence and its possible, grave consequences. By speaking publicly, Mr. Tabbara wouldbe acknowledging the harm that he has done, not only to Tim Wojna and his family, but to thecommunity at large.

Restraint

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79 The principles of restraint in sentencing which are codified under ss. 718.2(d) and (e) of theCriminal Code are particularly important when considering a youthful first offender.

80 In R. v. Priest, [1996] O.J. No. 3369, Justice Rosenberg noted:

10. 18 ... it has been an important principle of sentencing in this province thatthe sentence should constitute the minimum necessary intervention that isadequate in the particular circumstances. This principle implies that trialjudges consider community-based dispositions first and impose moreserious forms of punishment only when necessary. ...

He further states:

10. 20 The duty to explore other dispositions for a first offender beforeimposing a custodial sentence is not an empty formalism which can beavoided merely by invoking the objective of general deterrence. It shouldbe clear from the record of the proceedings, preferably in the trial judge'sreasons, why the circumstances of this particular case require that this firstoffender must receive a sentence of imprisonment. ...

81 It has been acknowledged by defence counsel in this case that a custodial sentence isappropriate. However, it is argued that the sentence should be one of two years less a day, and thatconsideration be given to the sentence being served in the community pursuant to s. 742.1 of theCriminal Code.82 In R. v. Priest, supra, Mr. Justice Rosenberg notes that even if a custodial sentence isappropriate, it is a well-established principle of sentencing that a first sentence of imprisonmentshould be as short as possible and tailored to the individual circumstances of the accused, ratherthan solely for the purpose of general deterrence.Length of Sentence83 In considering all the objectives and principles of sentencing, along with all the aggravatingand mitigating factors with respect to both the offence and the offender, I must ask myself whetherit is reasonable to impose a sentence of less than two years on this particular offender, for thisoffence, under all the circumstances of this case.

84 I find that a custodial term is most certainly warranted, given the gravity of the offence and theaggravating factors. However, in considering Mr. Tabbara's age, lack of criminal record, goodcharacter, profound remorse and the other mitigating factors previously noted, I find that theobjectives and principles of sentencing, in particular the principle of restraint for a youthful firstoffender, can be met by a custodial term of two years less a day. Such a sentence also permits thecourt to impose a probation order of up to three years, and to continue supervising Mr. Tabbara inthe community, under very specific terms and conditions.Conditional Sentence85 The imposing of a conditional sentence, which is requested by defence counsel, is outlinedunder s. 742.1 of the Criminal Code which, at the time, read as follows:

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10. Where a person is convicted of an offence, except an offence that ispunishable by a minimum term of imprisonment, and the court

a) imposes a sentence of imprisonment of less than two years, andb) is satisfied that serving the sentence in the community would not

endanger the safety of the community and would be consistent withthe fundamental purpose and principles of sentencing set out insections 718 to 718.2,

10. the court may, for the purpose of supervising the offender's behaviour inthe community, order that the offender serve the sentence in thecommunity, subject to the offender's complying with the conditions of aconditional sentence order made under section 742.3.

86 Given that manslaughter has no minimum term of imprisonment and that I imposed a sentenceof two years less a day, a conditional sentence allowing Mr. Tabbara to serve his time in thecommunity under house arrest must be considered.

87 I am satisfied that, if Mr. Tabbara were to serve his sentence in the community, the safety ofthe public would not be endangered. Mr. Tabbara has no criminal record; he has an extremely lowrisk of reoffending; he has the support of family and friends; he has accepted responsibility and isremorseful. Therefore, it only remains to determine whether serving the sentence in the communitywould be consistent with the fundamental purpose and principles of sentencing previously outlined.88 In R. v. Proulx, [2000] 1 S.C.R. 61 and R. v. Wismayer, [1997] O.J. No. 1380, the SupremeCourt of Canada and the Ontario Court of Appeal respectively note that the deterrent affect ofincarceration continues to be speculative and that conditional sentences with strict conditions cansatisfy the sentencing principles of denunciation and deterrence and can be sufficiently punitive andstigmatizing, while at the same time, achieving restorative objectives focusing on the principles ofrestraint.89 While I strongly agree with these comments, I do not find a conditional sentence appropriatein this particular case, given the aggravating factors previously outlined, in particular:

14. The fact that this was a crime of violence with the most serious and graveof consequences, the death of Timothy Wojna; consequences which havegreatly affected his family

16. Although Mr. Wojna's death was unintentional and not foreseeable, Mr.Tabbara's assault was intentional with the foreseeability of bodily harm.

17. The blow inflicted by Mr. Tabbara was from behind when Mr. Wojna waswalking away.

Mr. Tabbara did not stop to render aid nor did he immediately acceptresponsibility for what he had done.

90 Despite the strong mitigating factors with respect to Mr. Tabarra himself, I find that to permithim to serve his custodial term in the community would not give sufficient weight to the principlesof general deterrence and denunciation, nor would it meet the fundamental purpose of sentencing -to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

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91 I do find that Mr. Tabbara has the ability to give back to the community in a meaningful wayand that the rehabilitative steps he has already taken can be further supported by the terms andconditions of a probation order.92 Mr. Tabbara, will you please stand.

93 In conclusion, I sentence you to two years less a day imprisonment with credit, on a one-for-one basis as suggested by defence counsel, for five days you have already served in custody.Therefore, you are to serve two years, less six days, followed by a two year term of probation withthe following conditions:

a. Keep the peace and be of good behaviour.b. Appear before the court when required to do so by the court.c. Have no communication or contact directly or indirectly with Diar Hosseini,

Brian Herbert or Dixie Bear Duggan except with prior written approval of yourprobation officer

d. Notify the court or probation officer in advance, of any change of name oraddress and promptly notify the court or probation officer of any change ofemployment or occupation.

e. Report to a probation officer within two working days after your release andthereafter as required and in the manner directed by the probation officer.

f. Remain within the jurisdiction of the court unless written permission to gooutside that jurisdiction is obtained from the court or the probation officer.

g. Abstain from owning, possessing or carrying a weapon.h. Perform 240 hours of community service at a rate of not less than 10 hours per

month to begin within 60 days of the beginning of the probation order. Suchcommunity service is to include speaking to youth and community groupsregarding the dangers of violence and its possible consequences.

i. Continue to participate in counselling as recommended by your probation officer.j. Participate in any other treatment program recommended by your probation

officer.k. Maintain full time employment or attend an educational program on a full time

basis or a combination thereof.94 Further under s. 109 of the Criminal Code, I prohibit you from possessing any prohibitedfirearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.I further prohibit you from possessing any firearm other than a prohibited firearm or restrictedfirearm and any crossbow, restricted weapon, ammunition and explosive substance for 10 yearsafter your release from imprisonment.

95 Finally, pursuant to s. 487.051 of the Criminal Code, I order the taking of samples of bodilysubstances required for the purpose of forensic DNA analysis.

J.A. BLISHEN J.cp/e/qllxr/qljxr/qlaxr/qlaxw

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